Baby Devassy Chully @ Bobby vs Union Of India And Ors

2) Brief facts:

faring vessel by name M.T. AL SHAHABA (a motor tanker) carrying approximately 700 metric tons (MT) of Diesel Oil of foreign origin is arriving into Indian Customs Waters on or around 20th or 21st December, 2004 and the said diesel oil would be smuggled into India. The officers of the DRI, Mumbai, therefore, kept surveillance in that area and on 21.12.2004, the officers spotted the said vessel. They noticed two self propelled barges and two dumb barges each towed by a tow boat were around the said vessel. They also noticed that pipes were attached from the said vessel to the barges and oil was being pumped into the barges from the vessel. The officers of the DRI boarded the said vessel and took control of the same. The vessel and barges were found to be of Mumbai coast within the Indian territorial waters. When the officers made enquiry with the Captain of the vessel - Fouad Ahmed Al Manie, he informed that the vessel was carrying High Speed Diesel (HSD) from Muscat. The Captain was not holding any legal documents for import of the said diesel oil into India. The Captain informed the officers that he has already discharged around 250 MTs of oil from the vessel into three barges before they boarded the vessel. The officers, therefore, brought the said vessel and barges to the P and V Anchorage of Port Trust, Mumbai. Two independent panchas were brought and detailed inventory was prepared and after conducting search of the said vessel and barges, panchnamas were drawn. The officers of the DRI seized the said diesel oil weighing about 770 MTs, worth Rs. 2 crores, under the Customs Act, 1962.

(b) During the course of investigation, the officers came to know the name of the appellant-detenu and one Chand as the persons behind the said smuggling. On 22/23.12.2004, the statement of the Captain of the vessel was recorded wherein he stated that he was asked by his master to take the vessel to the Indian Coast and to deliver the consignment to one Bobby-the detenu in India. On the same day, the statement of Sayyed Hussain Madar @ Chand was also recorded wherein he, inter alia, stated that he was to purchase the said Diesel Oil brought by Bobby in India and sell the same.

(c) During the course of follow-up action of the said seizure of the vessel, the officers of the DRI, Mumbai seized about 5.127 MTs of previously smuggled diesel oil stored in two barges at Reti Bunder, Belapur and arrested Chand, Captain Fouad Ahmed Al Manie, Shaikh Ahmedali, Murugan Murugeshan and Sadiq Anwar under Section 104 of the Customs Act, 1962 on 23.12.2004 and were produced before the Addl. CMM, Esplanade, Mumbai on 24.12.2004 and were later released on bail on 09.02.2005. However, subsequently, all of them retracted their statements. On 04.03.2005, residential premises of the appellant-Bobby were searched and finally he was traced on 14.03.2005. On the same day, he moved an anticipatory bail application in the Sessions Court, Mumbai which was rejected on 24.03.2005. On 24.03.2005, the statement of Bobby was recorded under Section 108 of the Customs Act, 1962. On the basis of his statement, the officers arrested the appellant on 25.03.2005. On 12.04.2005, he was granted bail by the Addl. CMM, Mumbai but he did not avail of the same. On 03.05.2005, the Joint Secretary to the Government of India, after considering the appellant’s high propensity and potentiality to indulge in prejudicial activities and with a view to prevent him from abetting the smuggling of goods in future, passed the detention order against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the COFEPOSA Act”).

(d) Being aggrieved by the said order, on 02.06.2005, the appellant filed Criminal Writ Petition No. 1500 of 2005 before the Bombay High Court. The High Court, finding no substance in the writ petition, by impugned judgment dated 16.03.2006, dismissed the same.

OCTOBER 12, 2012.