Criminal Writ Petition No. 3253 of 2011. Case: Rashid Kapadia Vs Medha Gadgil and Ors. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 3253 of 2011 |
| Judges | A. M. Khanwilkar , J. and R. G. Ketkar, J. |
| Issue | Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) - Section 3 |
| Citation | 2012 CriLJ 1686 |
| Judgement Date | January 04, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
R. G. Ketkar, J.
-
By this Petition under Article 226 of the Constitution of India, Mr. Rashid Kapadia, father of Khalil Ahmed Rashid Ahmed Kapadia, (hereinafter referred to as the "detenu") has challenged the order of detention bearing No. P.S.A.1211/CR-17(2)/SPL/3 (A) dated 20-7-2011. The said order is passed by the 1st respondent - Principal Secretary (Appeals and Security) Government of Maharashtra, Home Department, Mantralaya, Mumbai (for short hereinafter referred to as the "Detaining Authority") under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act).
-
Heard Mr. D. S. Mhaispurkar, learned Counsel for the petitioner and Mr. J. P. Yagnik, learned APP for the Respondents at length. Rule. Mr. Yagnik waives service. By consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.
-
The facts and circumstances, giving rise to the filing of the present writ petition, briefly stated are as under:-
The officers attached to the Nhava Sheva Preventive Unit, Nhava-Sheva, detained the export consignment of M/s. Noble Impex under 8 shipping bills (filed under the Drawback Scheme) all dated 26-10-2010, after scrutiny of the export data available on EDI System of Jawaharlal Nehru Port Trust, Nhava-Sheva, Uran. In the scrutiny of the documents of the above shipping bills, it was revealed that there was gross mis-declaration with respect to quantity, quality and valuation of the declared export goods viz. "Dupattas" and "Sarong", besides claiming disproportionately higher amount of drawback. The goods totally valued at ` 3,67,98,880/? (FOB) with drawback claim of ` 34,20,030/? were detained under the panchanama dated 29-10-2010 for further investigation.
-
During the course of investigation, the statements of the detenu and Sarvashri Ashok Pandurang Dhakane, Bala Baburao Jadhav, Sanjay Nivrutti Waghmare and Sayed J. Naimuddin were recorded under Section 108 of the Customs Act, 1962. They admitted wrong declaration on shipping bills. The said Waghmare and the detenu admitted that shifting of export goods on the Warehouse through his associate to Shed No. 3, D-Node CWC Warehouse, JNPT, Uran. The sealed samples of the goods covered under the 8 shipping bills drawn under the panchanama dated 29-10-2010 were forwarded to Textile Laboratory and Research Centre on 11-11-2010 for testing the composition and criteria of the said items viz. Dupattas and Sarong. The samples were also sent to the Government Approved Valuer, Thane on 12-11-2010 for valuation. As per the valuation report, the value was determined as ` 10/? per piece of Dupatta and ` 20/? per piece for Sarong, as compared to the declared value of ` 351.34 and ` 280.78 of the respective items. The officers were of the view that the declaration was considerably very low and accordingly, the goods were seized. It is the case of the revenue that the detenu is the cousin of Sayed Naimuddin, proprietor of M/s. Noble Impex and associate, and attempted to export the overvalued articles for the purpose of getting high drawback.
-
It is the case of the revenue that Ashok Dhakane, partner of Clearing House Agent, (for short 'CHA'), Firm M/s. Dhakane and Co., bearing No. 11/0944, Bala Jadhav, employee of M/s. Dhakane and Co. and Sanjay Nivrutti Waghmare abated the improper export for claiming drawback fraudulently by offering CHA services to the said Naimuddin and the detenu. The Detaining Authority was of the view that there was a deep rooted conspiracy to export overvalued goods and thereby these persons committed offences under the Customs Act, 1962 and having regard to their activities, it has become necessary to pass the Detention Order. Accordingly the Detaining Authority has passed the impugned order of Detention on 20-7-2011. It is against this order, the father of the detenu has filed the present petition.
-
Mr. Mhaispurkar has raised several contentions in support of this petition. He submitted that the detenu's cousin Sayed Naimuddin retracted the statement vide letters dated 13-11-2010 and 6-12-2010. However, those retractions were not placed before the Detaining Authority. Though the Detaining Authority considered the confession made by said Naimuddin, the retractions made by Naimuddin were not placed by the sponsoring authority before the Detaining Authority. The statements and its retractions were vital documents, which would have influenced the mind of the Detaining Authority one way or the other and hence failure to consider those documents has rendered subjective satisfaction of the Detaining Authority null and void. (Ground No. "X").
-
He further submitted that the Detaining Authority has considered the statements of the detenu recorded on 2-11-2010, 24-11-2010 and 6-12-2010. However, those statements were retracted vide retraction dated 13-11-2010 and 6-12-2010. The sponsoring authority has neither placed those retractions before the Detaining Authority nor the Detaining Authority was aware about these retractions. As such, the satisfaction arrived at by the Detaining Authority is severely impaired for want of considering the vital documents. (Ground No. "Y".). In support of these submissions, he relied upon the following judgments:-
(1) Madanlal Anand v. Union of India, AIR 1990 SC 176,
(2) K. Satyanarayanan Subudhi v. Union of India, 1991 Supp. (2) SCC 153: (AIR 1991 SC 1375),
(3) Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14: (AIR 2009 SC 628),
(4) Prakashchandra v. Commissioner and Secretary, Government of Kerala, AIR 1986 SC 687,
(5) L. C. George v. Union of India, 2002 Cr LJ 540 (Bombay High Court),
(6) K. S. Nagamuthu v. State of Tamilnadu, (2006) 4 SCC 792: (AIR 2006 SC 374).
(7) Errol Robert Lucian v. State of Maharashtra, 2004 All MR (Cri) 305.
-
Mr. Mhaispurkar further submitted that neither the sponsoring authority placed the bail applications filed by the detenu as well as said Sayed before the Detaining Authority, nor the Detaining Authority was aware of its contents. In those bail applications, the detenu as well as said Sayed had denied their involvement in the alleged offences. Hence, these are vital documents and ought to have been considered by the Detaining Authority. The satisfaction arrived at by the Detaining Authority is therefore severely impaired for want of considering these vital documents (Ground No. "Z"). In support of these submissions, he relied upon the following judgments:-
(1) State of U.P. v. Kamal Kishore Saini, (1988) 1 SCC 287: (AIR 1988 SC 208),
(2) Adishwar Jain v. Union of India, (2006) 11 SCC 339: (2006 AIR SCW 5786),
(3) Ahmed Nassar v. State of Tamilnadu, (1999) 8 SCC 473: (AIR 1999 SC 3897),
(4) A. Sowkath Ali v. Union of India, (2000) 7 SCC 148: (AIR 2000 SC 2662),
(5) Ayya v. State of U.P., (1989) 1 SCC 374: (AIR 1989 SC 364),
(6) Abdul Sathar Ibrahim Manik v. Union of India, AIR 1991 SC 2261,
(7) Arvind Ganeshmal v. Union of India, 1998 (3) Mh LJ 934.
-
Mr. Mhaispurkar further submitted that the Detaining Authority has considered the statement of the detenu recorded on 2-11-2010, 24-11-2010 and 6-12-2010. From perusal of these statements, it is apparent that the detenu has nowhere stated that he has actually mis-declared the goods as regards its quality and valuation. There is no material to indicate that the detenu is beneficiary due to mis-declaration. The detenu never admitted that he was to get duty drawback from the export consignment. Thus on the basis of material placed before the Detaining Authority, it nowhere appears that the detenu was concerned with actual exporting the said goods, by mis-declaration of its quantity, quality or value. On the other hand Mr. Sayed Naimuddin admitted in his statement recorded under Section 108 of the Customs Act, 1962 that he has mis-declared, overvalued the goods of inferior quality. He further admitted having signed invoices and packing lists other documents such as shipping bills were filed by one Bala Jadhav for exporting those goods. Hence the order of detention issued with a view to preventing the detenu from indulging in smuggling activities in future, shows total non-application of mind and is thus null and void (Ground No. "N").
-
He also submitted that the sponsoring authority has neither placed before the Detaining Authority nor did the Detaining Authority consider the statement of the said Naimuddin recorded on 1-12-2010, 3-12-2010 and 6-12-2010. From perusal of these statements it is apparent that he specifically admitted that the work of preparing invoices and packing list for consignment of 120 packages was prepared by Sanjay Waghmare on behalf of M/s. Noble Impex and he was not aware as to who prepared invoices and packing list for the remaining 130 consignments. In these statements, Naimuddin has indicated the name of Waghmare for transportation of goods as well as preparation of export documents. He also admitted his being I.E.C. Holder and Exporter as well as his active participation in the export business. Answers given by Naimuddin in these statements show that the detenu was not at all involved in the said prejudicial activity and hence the said statements were vital documents, which proved the innocence of the detenu. The subjective satisfaction recorded by the...
To continue reading
Request your trial