Pooja Batra vs Union Of India & Ors

(a) The Detaining Authority has issued the detention order dated 05.12.2007 against Shri Deepak Kumar @ Deepak Batra, the husband of the appellant herein on the basis of the facts and documents put up before them and after satisfying with the facts on records that the detenu has propensity and potentiality to indulge in smuggling activities in future. The detenu is the mastermind for import of the goods covered under Bill of Entry No. 589144 dated 25.04.2007. The goods covered under abovementioned Bill of Entry were not only mis-declared in respect of quantity but also there were certain goods which were concealed in the container. The value of such mis-declared/smuggled goods as calculated comes to Rs.87,07,220/- and attracting duty has worked out to 2 Rs. 30 lacs approximately. The detenu had indulged in repeated offences since 2006 as he was not the actual owner of the Importer Exporter Code, (in short "IEC"). The grounds are based on the eight Bills of Entry which were filed by the detenu through his Customs House Agent, (in short "CHA") and also on the basis of the statements tendered by Shri Naveen Kumar, an employee of CHA. Eight Bills of Entry have been filed by the CHA in the name of firm provided by the detenu. The detenu also provided the photocopy of the IEC. Shri Naveen Kumar also identified the earlier signatures of the detenu on the authorization letter dated 20.08.2007 given by the detenu. Shri Naveen Kumar confirmed the relationship between the last consignment and the earlier eight consignments imported by the detenu. The detenu had fraudulently used IEC No. and PAN No. of M/s Om Prakash Deepak Kumar. The actual owner of the IEC was not aware of the fact that his IEC is being misused by the detenu since 2006 and thorough investigation conducted by the Customs Authorities has revealed that in the past also eight such Bills of Entry were filed by the same CHA on the directions of the 3 detenu and the goods were cleared and handed over to the detenu. The Detaining Authority has issued the detention order after satisfying with the facts and circumstances of the case and material available on record.

(d) Delay in passing the detention order as well as in disposal of the representation of the detenu. 5

7) For convenience, first let us consider whether there is any delay in passing the detention order and delay in disposal of the representation. (a) Regarding delay in passing detention order, the alleged violation relates to Bill of Entry No. 589144 dated 25.04.2007, the detention order was passed on 05.12.2007. After the seizure of the goods from the container covered under Bill of Entry No. 589144 dated 25.04.2007, nobody appeared before the authorities to get the goods cleared till 23.07.2007. The detenu himself appeared before Customs Authorities for the first time on 03.08.2007. His statement under Section 108 of the Customs Act was recorded 6 and he was arrested on 04.08.2007. It was explained that in the light of the fact that earlier also similar eight consignments were got cleared by the detenu, the investigation relied on the statement of witness as if he is the actual owner of the proprietary concern, the statement of the clearing agent and his nominee were recorded and it was only on 29.10.2007 the sponsoring authority recommended to the COFEPOSA Department for consideration of the matter to pass detention order against the detenu. All those actions, various orders/proceedings were mentioned in seriatim both in the grounds of detention, and in the counter affidavit filed by the very same authority. We have carefully gone through the same and find no merit in the contention. On the other hand, we are satisfied that there is proximity to the alleged offence and the detention order. In our view, there was no undue delay so as to snap the link between the incident and the alleged potentiality of the detenu in indulging in smuggling activity. Hence, we reject the said contention.

14) In the light of the above discussion and for the reasons stated above the impugned order of the High Court dated 05.09.2008 in W.P. (Crl.) 782/2008 is set aside, consequently the detention order bearing F.N. No. 673/06/07-CUS/VIII dated 05.12.2007 issued by Joint Secretary (COFEPOSA), Ministry of Finance, Department of Revenue is quashed. The detenu-husband of the appellant viz., Deepak Kumar @ Deepak Batra is ordered to set at liberty forthwith if he is not required in any other case. Appeal is allowed.

March 27, 2009.