1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION (IN ITS JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA) CRIMINAL WRIT PETITION NO.2265 OF 2006 Maheshchandra Saxena R/at:401-402, 'A' Wing, Narendra Accord Building 'C',Near Old Petrol Pump Mira Road (East), Dist: Thane. ...Petitioner (Father of Detenu) Vs. 1.The State of Maharashtra Through the Secretary to the Govt. of Maharashtra, Home Department, mantralaya Mumbai-400 032. 2.Chandra Iyengar Principal Secretary (Appeals and Security) Govt. of Maharashtra Home Department and Detaining Authority, Mantralaya, Mumbai-400 032. 3.The Superintendent of Prison The Mumbai Central Prison Arthur Road, Mumbai. 4.The Superintendent of Prison Nashik Road, Central Prison,Nashik ...Respondents 2 WITH CRIMINAL WRIT PETITION NO.2594 OF 2006 Meena Vivek Dutta R/at: B/3 Dolphin Apartments Shivaji Road, Kandivali Village, Kandivali (West) Mumbai-400 067 ...Petitioner (Father of Detenu) Vs. 1.The State of Maharashtra Through the Secretary to the Govt. of Maharashtra, Home Department, mantralaya Mumbai-400 032. 2.Chandra Iyengar Principal Secretary (Appeals and Security) Govt. of Maharashtra Home Department and Detaining Authority, Mantralaya, Mumbai-400 032. 3.The Superintendent of Prison The Mumbai Central Prison Arthur Road, Mumbai. 4.The Superintendent of Prison Nashik Road, Central Prison,Nashik ...Respondents 3 WITH CRIMINAL WRIT PETITION NO.2595 OF 2006 Balkrishna Sekharan Nair R/at: 3, Creado Chawl No.36, Sahar Village, Sutar Pakhadi Vile Parle(East) Mumbai-400 099 ...Petitioner (Father of Detenu) Vs. 1.The State of Maharashtra Through the Secretary to the Govt. of Maharashtra, Home Department, mantralaya Mumbai-400 032. 2.Chandra Iyengar Principal Secretary (Appeals and Security) Govt. of Maharashtra Home Department and Detaining Authority, Mantralaya, Mumbai-400 032. 3.The Superintendent of Prison The Mumbai Central Prison Arthur Road, Mumbai. 4.The Superintendent of Prison Nashik Road, Central Prison,Nashik ...Respondents WITH 4 CRIMINAL WRIT PETITION NO.212 OF 2007 Usha Ravi Kotian R/at: Flat No.102,152, Padma Ganga, Shere Punjab, Mahakali Caves Road, Andheri (East) Mumbai-400 093 ...Petitioner (Father of Detenu) Vs. 1.The State of Maharashtra Through the Secretary to the Govt. of Maharashtra, Home Department, mantralaya Mumbai-400 032. 2.Chandra Iyengar Principal Secretary (Appeals and Security) Govt. of Maharashtra Home Department and Detaining Authority, Mantralaya, Mumbai-400 032. 3.The Superintendent of Prison The Mumbai Central Prison Arthur Road, Mumbai. 4.The Superintendent of Prison Nashik Road, Central Prison,Nashik ...Respondents Mrs. Ansari, Advocate for Petitioners Mr. Maqsood Khan, Advocate for Petitioners Mr. A.R. Patil Additional P.P for State 5 CORAM: DR. S. RADHAKRISHNAN & SMT.ROSHAN DALVI, JJ. DATED: 13TH SEPTEMBER, 2007 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. The 4 Petitioners in the above Petitions have prayed for Writ of habeas corpus to be issued challenging the order of detention dated 17th August, 2007 bearing numbers (i)PSA 1206/1(1)/SPL 3(A), (ii)PSA 1206/1(2)/SPL 3(A), (iii) PSA/1 (3)/SPL 3(A) and (iv) PSA 1206/1/(4)/SPL 3(A) issued by the then Principal Secretary to the Government of Maharashtra, Home Department, Mantralaya, Mumbai- 400 032 in respect of each of the Petitioners. 2. The above 4 Petitioners are stated to have been engaged in smuggling contraband goods into India. Their detention is based upon a specific act of smuggling revealed upon receipt of confidential information by the custom authorities which led to their arrest and the consequent statements made by 6 them under Section 108 of the Customs Act, 1962. 3. A Huge quantity of gold jewellery weighing about 17 Kgs., and valued at more than Rs. 1 Crore, was caught being smuggled by concealing it in household articles such as a Refrigerator which arrived as unaccompanied baggage at the Air Cargo Complex, Sahar Mumbai by FEDEX flight No.FX- 5034 on 17.11.2005. The unaccompanied baggage arrived under the name of one Sarwar Husain Sagir Husain, who held Indian Passport No.A-5942380. The Petitioner Vivek Dutta was identified as the person who came to clear the consignment. He was intercepted by the DRI Officers. Documents being 2 cargo delivery orders, 2 Airway bills, one authority letter from Sawar Hussain in his favour and the Passport of Sawar Hussain came to be impounded. He disclosed that he was directed to clear the consignment by Petitioner Sanjay Nair. The consignment containing inter alia the Refrigerator with 17.059 Kgs., of gold concealed in 7 the door and other internal compartments, Soni Television and a long Clock and another consignment containing cordless phones and answering machines came to be seized. The statement of Vivek Dutta was recorded which showed he is operating as a free-lance custom clearing agent under CHA license of M/s. Dalal & Sons (CHA No.11/497). He stated that the Petitioner Sanjay Nair asked him to clear the goods and Petitioner Sanjay Nair as well as Petitioner Arvind Saxena made him sign the authority letter in the name of Sarwar Husain under which he had sought to clear the consignments from 17.11.2005. He was paid Rs.25,000/- by Sanjay Nair for clearing the consignment. He stated about the amounts he was paid for clearing the consignments on earlier occasions. 4. The passport of Sarwar Husain showed his address at Rahat Apartments, D-Wing, Flat No.202 on LBS Marg could not be located as there was no building in the name of Rahat 8 Apartment found on LBS Marg. Neverthless investigation revealed the correct address of Sarwar Husain which resulted in the information that the interrogation of Sarwar Husain who was shown to be a labourer, who had obtained a Passport to secure a job in Gulf Countries from one Papa Totla. His interrogation further revealed that he had not given any authority for clearance of any consignment in his name to any one and that no consignments were imported by him. After the Refrigerator was scanned in the X-ray machine by the Custom Authority, the smuggled gold was found concealed therein, Vivek Dutta was apprehended, which lead to his statement of the implication of Sanjay Nair, Arvind Saxena and Ravi Kotian. 5. Further statement of Vivek Dutta recorded on 9.1.2006 revealed clearance of unaccompanied packets by him on earlier 5 to 6 occasions. He had similarly cleared goods in various other consignments under jobs assigned to him by 9 Sanjay Nair. These goods were sought to be cleared under authority letter given by Sarwar Husain. 6. The residential premises of Papa Totla shown by Sarwar Husain was found locked. 7. Interrogation of the Proprietor/Partner of Dalal & Sons (CHA No.11/497) revealed that Vivek Dutta and Sanjay Nair were their employees with AAI entry passes. 8. The statement of Sanjay Nair showed that the Petitioner Arvind Saxena gave him a Passport of Sarwar Husain with a notorised letter of authority in favour of Vivek Dutta along with the copies of the 2 Airway bills to get the 2 consignments cleared at Sahar Airport on 17.11.2005. Sanjay Nair called upon Vivek Dutta to clear the consignments along with those documents though he had never met Sarwar Husain. The statement revealed that the 10 Passport and letter of authority were given to Sanjay Nair and later Vivek Dutta by Petitioner Arvind Saxena and Petitioner Ravi Kotian with a confidential information relating to a smuggling of gold into India contained in the Refrigerator which arrived in India with other household articles. 9. Sanjay Nair and Ravi Kotian are stated to be nephew and uncle. They absconded. They were apprehended later. Their statements have been similarly recorded. Similarly Arvind Saxena was later apprehended. His statement showed that he was employed by the firm of M/s. Sayani and Sons (CHA No.11/398) for clearing consignment on behalf of their clients, he also worked as a free lancer, and later started working with Ravi Kotian. His statement showed that Ravi Kotian handed over the Passport of Sarwar Husain to him with the confidential information to have the consignment cleared. Since the consignment had to be 11 cleared by an agent Arvind Saxena recommended Sanjay Nair who in turn recommended Vivek Dutta so that the authority letter ostencibly of Sarwar Husain was got prepared in the name of Vivek Dutta by forging his signature and having it notorised. 10. Consequently, the detention order shows that the consignments which were to be received by Ravi Kotian and Arvind Saxena, who acquired the services of Sanjay Nair and Vivek Dutta who were working as Custom Clerks for Dalal & Sons and also doing some free lance clearance. Sanjay Nair was accordingly paid Rs.25,000/- which he handed over to Vivek Dutta to obtain the delivery and get the two consignments cleared. 11. Arvind Saxena's statement further revealed earlier about 6 consignments of contraband goods similarly concealed, got cleared by Ravi Kotian, in which Sanjay Nair was paid 12 amounts to see that they were not screened through the X- ray machines. 12. The apprehension of Ravi Kotian resulted into his statement, wherein it was revealed that he worked as a free lancer with Arvind Saxena, for custom clearance without any entry pass and without being affiliated to any CHA Firm. Ravi Kotian' s statement revealed that Arvind Saxena had informed him about the arrival of 2 consignments from Dubai and had brought the Passport of Sarwar Husain along with the letter of authority, purportedly assigned by him with 2 Airway bills in respect of 2 consignments on 16.11.2005. Arvind Saxena obtained the signature of Vivek Dutta on the authority later got it notorised. Arvind Saxena made Vivek Dutta sign on the letter of authority which he had to use for getting consignment cleared. 13. The further statement of Vivek Dutta recorded on 13 31.1.2006 revealed on Chotu working with Arvind Saxena and Sanjay Nair. It also revealed that the letter of authority was got forged by Arvind Saxena in the name of Vivek Dutta in the presence of Sanjay Nair and Ravi Kotian. The statement showed that he was paid his commission for clearing the consignments either by Arvind Saxena or Ravi Kotian. 14. Consequently the detention order came to be passed against each of the 4 Petitioners on the ground that they, had easy access to UB Center at the Airport and indulged in smuggling activities for bringing contraband goods by obtaining entry either as employees of licensed custom house agents or otherwise and thus operated as an organised gang. 15. It must be appreciated that only Vivek Dutta was apprehended at the UB Center whilst he actually sought to 14 clear the consignment under the 2 Airway bills relating thereto. He took the place of Sanjay Nair as the latter was not then available for the task. They were both paid commission by Arvind Saxena or Ravi Kotian. Their statements revealed the roles of Arvind Saxena and Ravi Kotian. 16. The fact remains that the gold jewellery concealed as stated has been seized and confiscated. Based upon the said seizure, investigation and interrogation followed. 17. Sanjay Nair, Arvind Saxena and Ravi Kotian have been apprehended on different dates later. Summons/warrants have been sought to be served at their residences. Their statements have been recorded on different dates. The case of the Respondents about their statements is consistent and similar. Based upon their statements the detention orders have been issued against each of them. 15 18. It is contended by Mr. Khan and Mrs. Ansari on behalf of all the Petitioners that the case of the Respondents at best reveals they having abetted the smuggling activities of some others in their capacity as their custom house agents and that the case of the Respondents does not show that any of them smuggled goods themselves. 19. It is contended that smuggling, as defined in Section 2 (39) of the Customs Act, 1962, is the act or omission which will render the goods liable to confiscation under Section 111 or 113 thereof. Since the goods are imported, Section 111 would apply. The goods in this case having been brought illegally concealed in a Refrigerator would bring the case within the mischief of Section 111(i) of the said Act. It is contended that the goods were concealed before they arrived in India. The act of smuggling was therefore, complete before the goods landed. This was done not by the agents 16 but by the owner of the goods who was required to make declaration as to its contents in proper form under Section 77 of the Act. 20. The detention orders in these cases clearly show that Vivek Dutta was only sent to clear the goods upon being paid his commission of Rs.25,000/- by Sanjay Nair who in turn was also to clear the goods, (if he had himself done so), upon the similar commission being paid to him. The detention orders however, show that Arvind Saxena obtained the fake Passport of Sarwar Husain who had not imported any goods or ordered any consignment from abroad. He also got the latter of authority signed by Vivek Dutta in the presence of the others and accordingly, got it forged. Whereas Vivek Dutta, Sanjay Nair and Arvind Saxena have shown some affiliation to the firm of Custom House Agents being Dalal & Co. and Sayani and Sons respectively, Ravi Kotian has not shown any such affiliation also. Each of them has done 17 freelance work in addition to the work of the firm assigned to them for clearance of consignments. Whereas Vivek Dutta and Sanjay Nair did nothing further than to take the documents given to them for clearance of the goods, Arvind Saxena obtained the fake Passport and got the letter of authority forged and fabricated to be used for the consignment. That was not a function of the Custom House Agent. He, therefore, exceeded the authority of the Custom House Agent. He acted on his own account and not as an agent. Whereas Vivek Dutta and Sanjay Nair could immediately reveal in their statements how they worked for Arvind Saxena and Ravi Kotian, Arvind Saxena though claiming to be Custom House Agent and stated to be working with Sayani & Company has not shown the ultimate owner who signed the declaration under Section 77 of the Customs Act and who smuggled the goods by doing the act by which they were rendered liable to confiscation viz., by concealing the dutiable goods in the refrigerator before they were loaded 18 as per Section 111(i) of the Customs Act. Even if he acted as an agent he acted for an undisclosed principal. The very concept of agency implicitly requires the disclosure of the principal on whose behalf the agent acts. Vivek Dutta and Sanjay Nair showed how they were directed to clear the consignment by Arvind Saxena and Ravi Kotian. Arvind Saxena has not shown on whose behalf he acted or directed Sanjay Nair or Vivek Dutta to act for clearing the consignment as his sub-agent. 21. Ravi Kotian does not even claim to be working with any Custom House Agent or having a CHA Licensee himself, though claiming to be a clearing agent. His claim is therefore, completely unfounded. 22. In fact under the provisions under Section 230 of the Indian Contract Act 1872 there is a statutory presumption of a contract to the contrary in case where an agent does not 19 disclose the name of the principal. Such agent would therefore, be liable as the Principal himself to 3rd parties. 23. A vain attempt has been made to suggest that one Chotu mentioned in the detention orders would be the real importer. Disclosure of the principal has to be specifically and expressly made by a person claiming to be an agent. He has to further show the extent of his authority as agent amenating from such Principal. Disclosure cannot be implied over a matrix of facts that could have emerged upon statements of several persons. In any case the detention orders show the implication of Chotu in the statement of Vivek Dutta as Arvind Saxena's man and who was seen by Vivek Dutta with Arvind Saxena and Sanjay Nair. The reference to Chotu does not portray him as the Principal/importer of the consignment, under whose directions each of the Petitioners acted. 20 24. On reading the 4 detention orders containing the separate statements of the 4 Petitioners as also the statements of the 2 Custom House Agents as well as Sarwar Husain, the innocent, unknowing Passportholder, whose Passport was misused, it becomes evident that Vivek Dutta and Sanjay Nair, in their capacity as freelance Custom House Agents worked on the directions of their Principals Arvind Saxena and Ravi Kotian, who paid them commission for clearing the contraband goods contained in the 2 consignments which arrived at Sahar Airport, Mumbai on 17.11.2005. Arvind Saxena and Ravi Kotian are not shown to be agents of any Importer of those consignments. 25. As agents Vivek Dutta and Sanjay Nair cannot be taken to have smuggled the goods. They were not the owners of the goods. They had no dominion over goods. They did not take delivery of the goods in their capacity as owners. They could not have sold the goods to another. These yardsticks fail to 21 apply to Arvind Saxena and Ravi Kotian. Arvind Saxena himself procured a fake passport and got fabricated the letter of authority, got it notarised and directed for obtaining delivery and possession of the contraband goods in the consignments. Ravi Kotian remained present in the UB center and oversaw the arrival of the goods and their clearance initially at the hands of Sanjay Nair and later at the hands of Vivek Dutta. 26. The detention orders showing Vivek Dutta and Sanjay Nair as having been involved in smuggling are therefore, not correct. They require to be set aside against Vivek Dutta and Sanjay Nair for failure to make out the case of smuglling contained in them. That does not hold good against Arvind Saxena and Ravi Kotian. The detention orders are seen to be sustainable against them for the acts of smuggling contraband goods into India as has been done in case of the 2 consignments which arrived on 17th November, 2005 and 22 earlier about 6 consignments which were similarly got acquired passed by the Custom Authorities. The propensity for repetition of such acts becomes apparent. The detention order cannot be set aside against Arvind Saxena and Ravi Kotian on merits. 27. Mrs. Ansari on behalf of Arvind Saxena relied upon the judgment of the Division Bench of this Court in the case of Rajaram Singh Vs. State of Maharashtra in Criminal Writ Petition No.529 of 2002. It shows that the detention order was issued with a view to preventing the detenu from abetting smuggling of the goods. In that case however, the detenu was to collect gold from one person (one Vinay Narvekar) and hand it over to another person (one Ashok). The Detenu had informed the loader at the Airport one Narvekar to go to the Air Cargo bridge when the flight containing the contraband consignment would arrive, and receive the packet of gold consignment from the said 23 passenger and hand it over to the detenu outside the Airport. It was shown that the detenu was working for the said Ashok and acting for and on his behalf. His role was to collect the goldbar near the Air Bridge and get those bars passed on to him outside the Airport and to deliver the same to said Ashok. In earlier such transaction the detenu had received a consideration of Rs.10,000/- and Rs.15,000/-. It was seen that he was helping another person involved in smuggling goods, whose name was was also stated in the detention order itself. It was therefore, clear that he did not work for himself; he worked for a disclosed principal. That Principal was Ashok. He received a mere commission. In this case Arvind Saxena has not shown on whose behalf he worked. Unless the detenu himself shows whose agent he is, he cannot claim to be an agent. If he is not an agent he cannot abet the act of another person who could be the principal. He would, therefore, be seen to be acting for himself. 24 28. The reading of the statement as recited in the detention order made shows that both Arvind Saxena and Ravi Kotian have tried to wriggle out of the conundrum, they found themselves in, by blaming the other and showing how they acted for the other. Both cannot act for one another as agents to abet the act of the other. They have also tried to show a fictitious person Chotu whose whereabouts have not been traced and who has not been identified. It is for the detenu to show his Principal. Such principal should be identified and produced. Whilst the investigation is in progress and whilst the statements are being recorded, if the detenu fails to show, identify disclose and produce the person who is the owner and who smuggled the goods as his Principal he cannot show himself to be the agent. Hence, his act would tantamount to smuggling. On the facts of this case therefore, the ruling in the case of Rajaram Singh would not apply. 25 29. In the case of Mabelaranah Niranjan Puthran Vs. The State of Maharashtra in Criminal Writ Petition No.2096 of 2006, the Division Bench of this Court to which one of us was a party (Roshan Dalvi, J.) considered the functions of a Custom House Agent (CHA) and the concept of abetment of the offence of smuggling by such agent. In that case the consignments were imported by one Umesh Shetty who entrusted the detenu to collect his consignment at Sahar Airport. Umesh Shetty told the detenu that he was planning to import certain analog watch movements by mis-declaring them as parts of plastic toys. He needed an import-export code (license) for importing those goods. The detenu was directed to arrange for the code, which he did from another party, who had the said code (license). The importer Umesh Shetty agreed to pay the detenu Rs.1,00,000/- for each consignment that would be delivered. The detenu used to take the signatures of the party who had the license on the import documents of the said Umesh Shetty and cleared the 26 consignments for him. Though that was not the function of the CHA, and the detenu exceeded his authority as such agent to procure the import-export code, he showed the party for whom he so acted, albeit illegally. He showed the owner of the goods, who was the importer. The detenu was, therefore, shown to have been acting on his behalf and not for an undeclared, undisclosed principal or without any principal. Consequently the detenu could be held liable only as an abettor and since he was shown as a smuggler, the detention order was set aside against him. 30. Further grounds of challenge of the detention orders, therefore, requires to be considered only against Arvind Saxena and Ravi Kotian. It is argued on behalf of Arvind Saxena that there is a variance of satisfaction in the detention order and in the grounds of detention. Mrs. Ansari on behalf of Arvind Saxena has drawn our attention to the detention order dated 17th August 2006, Exhibit-A to the 27 Petition which records the recital that the order is passed with a view to preventing him from smuggling goods. Paragraph 32 and 34 of the detention orders recite that acts of the 4 Petitioners show that they have done or opted to do the acts or have abetted in doing the acts which have rendered the goods liable to be confiscated under Section 111 of the Customs Act, 1962. The paragraph, therefore, shows smuggling or the abetment of smuggling done by the 2 Petitioners. Mrs. Ansari contended that the reading of aforesaid 2 aspects shows a variance of satisfaction. The contention is incorrect. Though para 34 sets out the smuggling or its abetment carried out by the Petitioners, Paragraph 37 and 39 of the detention orders, which show the findings of the detaining authority, specify the charges against each of the detenus. That is the charge of indulging in activities amounting to smuggling. It does not mean or include abetment thereof. 28 31. The reply of the Detaining Authority in paragraph 7 of her affidavit shows the denial of any variance. It specifies that