IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03/09/2004
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice M. CHOCKALINGAM
Habeas Corpus Petition No. 526 of 2004
Kamalam,
W/o. Ramalingam Subramaniam,
770/C1 East Third Street,
Pudukottai.
.. Petitioner.
-Vs-
1. State of Tamil Nadu,
represented by Secretary, Public (SC)
Department, Fort St. George,
Chennai-600 009.
2. Union of India,
represented by Secretary to Government,
Ministry of Finance, Department of
Revenue, COFEPOSA Unit, New Delhi-110 001.
.. Respondents.
Petition is filed under Article 226 of the Constitution of India, for issuance
of a Writ of Habeas Corpus, calling for the records of the 1st respondent
connected with order in GO.No. SR.1/182-9 /2004 dated 2-3-2004, quash the
same and set at liberty the detenu Ramalingam Subramanian, son of Ramalingam,
now detained in Central Prison, Trichy under the provisions of Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act.
!For petitioner: Mr. B. Kumar, Senior counsel
for Mr. A. Anwar Ali.
^For respondents: Mr. Abudukumar Rajarathinam,
Govt. Advocate (Crl.Side)for R1.
Mrs. Vanathi Srinivasan,
ACGSC for R-2.
:ORDER
(Order of Court was delivered by P. Sathasivam, J.,)
Petitioner is the wife of the detenu who was detained under Section 3 (1) (i)
of the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act (in short “COFEPOSA Act”) ( Central Act 52 of 1974) by the impugned
proceedings dated 02-03-2004. The said order came to be passed by the first
respondent with a view to prevent the detenu Ramalingam Subramanian residing
at No.770/C1, East Third Street, Pudukottai from smuggling goods in future.
2. Heard Mr. B. Kumar, learned senior counsel for the petitioner and Mr.
Abudukumar Rajarathinam, learned Government Advocate, for first respondent as
well as Mrs. Vanathi Srinivasan, learned Additional Central Government
Standing counsel for second respondent.
3. After taking us through the grounds of detention and other materials, Mr.
B. Kuamr, learned senior counsel, has submitted that from the materials there
is no contravention of Customs Act at all to pass the order of detention. He
further contended that as per the Customs Act, 1962, a passenger who brings
certain goods has the right to abandon the goods thereby avoid the payment of
duty and clearance of the goods, hence there cannot be an application of
section 77 or section 111(d), (l) and (m). He further contended that the
detaining authority has ignored and not taken into consideration the finding
rendered in the order of bail granted to the detenu by the Court of Additional
Chief Metropolitan Magistrate, Economic Offences, Chennai. In the light of
the conclusion of the learned Magistrate, it will not amount to an offence
under Section 132 or 135 of the Customs act. According to the senior counsel,
the detaining authority is not alive to the factum of specific finding in the
bail order, thus there is total non-application of mind on a factor which is a
judicial order and it is binding on the Government. On the other hand,
learned Government Advocate, after taking us through the relevant provisions
of the Customs Act and COFEPOSA Act, 1974, would submit that inasmuch as the
detenu was very well aware and brought out dutiable goods and liable to
proceed under Section 135 (1)(b) of the Act, the detaining authority is fully
justified in passing the order of detention.
4. We have carefully considered the rival submissions.
5. It is seen from the grounds of detention that on 12 -1-2004 three bags
without any baggage tag were found kept in a trolley near the Conveyor belt
No.4, un-attended, after all the passengers arrived by Indian Airlines flight
No.1C 566 had left the arrival hall of the Anna International Terminal. Since
no one came forward to claim the ownership of the same, all the three pieces
of the baggage were opened and examined by the Customs Intelligence officers
one by one in the presence of witnesses. The first bag found to contain one
Indian Passport bearing additional booklet No. Z 1542966 issued at Singapore
on 8-7-2002 to one Ramalingam Subramanian, resident of 485, Indira Nagar, II
Street, Pudukottai, Tamil Nadu. Inside the passport, one Customs Declaration
Card duly signed, with the particulars of Flight No. as IC 556 name as
Ramalingam Subramanian, number of packages as 3, checked-in baggage as 2 and
hand baggage as 1 having been filled up, but leaving the value of the dutiable
goods being imported blank was found. In another bag one Indian Airlines
flight ticket No.91429 7556 6 issued in the name of Subramanian R along with
Claim Tags No. SQ 177329 and SQ 177329 bearing the name of Subramanian R were
also recovered. On further examination, it was found to contain 20 Nos. of
Nokia Cellphones with batteries and adopters (Model No. 3100) and 3 Nos. of
Pioneer Car Stereo DEH 2650. Then the multi colour Zipper bag with baggage
tag No. SQ 177328 was examined in the presence of witnesses and 4 Nos. of
Sony Handycam DCR TRV 228E with accessories and 9 Nos. of Pioneer Car Stereo
DEH 5550 were recovered from it. Thereafter, one white coloured Martel VSOP
card board carton without any baggage tag was opened in the presence of
witnesses and 18 Nos. of Pioneer Car Stereo DEH 3550 were recovered from it.
Since the aforesaid goods were not accompanied by any documents, the same were
seized along with the baggage under a mahazar for further action under Customs
Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 on a
reasonable belief that they were attempted to be smuggled into India. The
said Ramalingam Subramanian was informed about the same. Pursuant to the
same, he made a voluntary statement before the Intelligence Officer, Customs
House, Chennai-1 on 21-01-2004 wherein it is stated that while returning from
Singapore on 12-01-2004 he bought clothes and packed them in a polythene cover
for his wife and his family members and reached Singapore Airport, that an
un-known person approached him at Singapore Airport and introduced himself as
a baggage broker and showed him three baggages and requested him to carry the
same and hand over the same to a person who would identify him outside Chennai
Airport, for which he would be paid 250 Singapore Dollars at Singapore Airport
itself. He further stated that at Chennai Airport, after collecting his two
checked-in baggages and along with his hand bag he tried to go out of the
Airport, but since he did not know the contents of the three baggages given by
the unknown person at Singapore Airport, he decided to abandon the same at the
arrival hall of the Airport itself, that he took his clothes and came out of
the Chennai Airport and left for Pudukottai. Based on the materials, he was
arrested on 22-1-2004 and produced before the Additional Chief Metropolitan
Magistrate, E.O.II, Egmore, Chennai and he was remanded to judicial custody
till 5-2-2004. A telegram was also sent to his wife on 23 -01-2004,
intimating his arrest and remand. From the available materials, the
department came to the conclusion that the electronic goods in trade quantity
were brought by him with his knowledge and abandoned them at the airport to
evade customs duty and had rendered liable for confiscation under Section 111
(d) (l) and (m) of the Customs Act, 1962 read with Foreign Trade (Development
and Regulation) Act, 1992 and for not making a true declaration to the customs
authorities as required under section 77 of the Customs Act, 1962. He has
committed an offence punishable under Sections 132, 135 and also rendered
himself liable for penal action under section 112. The State Government from
the materials after satisfying that he has indulged in smuggling goods
detained him under the provisions of COFEPOSA Act, 1974 with a view to prevent
him from smuggling of goods in future.
6. By drawing our attention to Section 23 (2) of the Customs Act, 1962
(hereinafter referred to as “the Act”), Mr. B. Kumar, learned senior counsel
for the petitioner, submitted that the detenu is entitled to relinquish his
title to the goods or abandon the same and in that event he shall not be
liable to pay the duty thereon. The relevant provision reads as under:-
“Section 23 (2) The owner of any imported goods may at any time before an
order for clearance of the goods for home consumption under section 47 or an
order for permitting the deposit of goods in a warehouse under section 60 has
been made, relinquish his title to the goods and thereupon he shall not be
liable to pay the duty thereon.”
Section 47 speaks about clearance of goods for home consumption. It is seen
that if the officer is satisfied that the goods entered for home consumption
are not prohibited goods and the importer has paid the import duty, assessed
thereon and any charges paid under the Act, the officer may pass an order
permitting clearance of the goods for home consumption. Section 48 speaks
about procedure in case of goods not cleared, warehoused or transhipped within
30 days after unloading. Section 77 relates to declaration by owner of
baggage as under:-
“Section 77. Declaration by owner of baggage
The owner of any baggage shall, for the purpose of clearing it, make a
declaration of its contents to the proper officer.”
Section 80 refers to temporary detention of baggage:
“Section 80. Temporary detention of baggage
Where the baggage of a passenger contains any article which is dutiable or the
import of which is prohibited and in respect of which a tirue declaration has
been made under section 77, the proper officer may, at the request of the
passenger, detain such article for the purpose of being returned to him on his
leaving India and if for any reason, the passenger is not able to collect the
article at the time of his leaving India, the article may be returned to him
through any other passenger authorised by him and leaving India or as cargo
consigned in his name.”
Section 111 speaks about confiscation of improperly imported goods, etc.
Among various clauses (d) (l) and (m) are relevant. Section 113 speaks about
confiscation of goods attempted to be improperly exported, etc., which we are
not concerned in this case. Section 135 relates to evasion of duty or
prohibitions.
“Section 135 (1) Without prejudice to any action that may be taken under this
Act, if any person-
(a) is in relation to any goods in any way knowingly concerned in any
fraudulent evasion or attempt at evasion of any duty chargeable thereon or of
any prohibition for the time being imposed under this act or any other law for
the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing,
depositing, harbouring, keeping, concealing, selling or purchasing or in any
other manner dealing with any goods which he knows or has reasons to believe
are liable to confiscation under section 111,he shall be punishable….”
7. The analysis of the above statutory provisions make it clear that even for
human consumption if the goods imported are not prohibited goods on payment of
import duty, if any, and after payment of necessary charges in respect of the
same, the proper officer is empowered to pass an order permitting clearance of
goods. Though sub-section (2) of Section 23 enables the owner of the imported
goods to relinquish his title to save duty, the said provision is not an
absolute one, but subject to other conditions. We have already referred to
Section 77 of the Act which enables the owner of any baggage to make a
declaration of its contents to the proper officer for the purpose of clearing
the same. Though the detenu had left the said three baggages without clearing
the same before the proper officer, his voluntary statement given before the
officer, Customs House, Chennai-1 and the materials available from the three
baggages would show that he undertook to deliver the said bags from a baggage
broker at Singapore airport with an assurance that on handing over the 3
baggages to a person who would identify him outside Chennai airport, he would
be paid 250 Singapore dollars at Singapore airport itself and on that
understanding/assurance, he checked in all the 3 baggage along with his hand
baggage. It is further seen that in the baggage it was found one Indian
passport issued at Singapore on 8-7-2002 to the detenu Ramalingam Subramanian
and also contained customs declaration card duly signed with particulars of
flight No. as IC 556 in the name of Ramalingam Subramanian stating that
number of packages as 3, checked in baggage as 2 and hand baggage as 1 having
been filled up, but leaving the value of the dutiable goods being imported
blank was found. Apart from the same, the baggage was found to contain
several other trade materials as referred to in clause (ii) of the grounds of
detention. It is also seen from the materials furnished that cases were
registered against the detenu twice during 2002 for bringing goods violating
Customs Act to the tune of Rs. 4 Lakhs. All the above materials show that
the detenu was aware that the materials inside the baggages were trade
articles entrusted by a baggage broker at Singapore to be handed over to a
person at Chennai Airport. Though the above articles are not prohibited one,
the same are dutiable and in the event of nonpayment of duty, the same are
liable for confiscation under Section 111 (d) (l) and (m) of the Customs Act,
1962 read with Foreign Trade ( Development and Regulation) Act, 1992 and for
not making a true declaration to the customs authorities as required under
Section 77 of the Act.
8. The relevant provisions referred to above also show that the procedure for
customs clearance applied for goods for human consumption under a bill of
entry and passengers accompanied baggage need to be necessarily declared to
the customs properly though an option to clear or not on payment of duty is
available to the passengers. In other words, as rightly argued by the learned
Government Advocate, a passenger cannot abandon the goods as a matter of right
and leave the Airport without informing or declaring to the customs. As
observed earlier, though the goods are not prohibited, they were not any trade
quantity and were seized by the Customs Officers for nondeclaration. As
stated earlier, in the statement given by the detenu on 21-01-2004, he had
categorically stated that he brought 3 baggages given by a broker at Singapore
Airport, abandoned them at Chennai Airport along with his passport and that he
did not pay any customs duty. From the materials, we are of the view that the
detaining authority is right in holding that the electronic goods in trade
quantity were brought by the detenu with his knowledge a nd abandoned them at
the Airport to evade customs duty; hence the contrary contentions raised are
liable to be rejected. The claim that no material was shown to show that
there is no contravention of Customs Act and to pass an order of detention
cannot be accepted; accordingly we reject the first contention.
9. Coming to the second contention, namely, nonconsideration of the finding
in the bail order passed by the Additional Chief Metropolitan Magistrate,
Economic Offences-II, Chennai, we have perused the bail order dated
11-02-2004. First of all, the said order is not with reference to any
adjudication proceedings, but it relates to the claim of the accused whether
he is entitled for bail or not. In the said application, the learned
Additional Chief Metropolitan Magistrate has rendered a finding to the effect
that the accused had never mis-declared the goods or nature of goods or nature
of valuation. Further, on the premise when the accused did not declare the
value of the goods brought by them, the question of valuation of goods in the
R.R is not sustainable, he granted bail in favour of the accused. The learned
Judge has also relied on a judgement of the Bombay High Court in State of
Maharashtra vs. Anil Bhagchand Jain, reported in 1990 (47) 250 (Bombay) which
is also not applicable to the case on hand. We have already observed about
the voluntary statement of the detenu before the officers of the Customs
Department regarding receipt of 3 baggages from a baggage broker at Singapore
to be delivered to a person at Chennai Airport. We also observed that the
detenu was aware of the fact that he carried dutiable goods and in the event
of non-declaration/non-payment of duty, the goods are liable for confiscation.
In such a circumstance, the finding rendered in the order of bail granted to
the detenu is not supported by legal authority and it is not incumbent on the
part of the detaining authority to consider the same while passing the order
of detention. Further, it is also relevant to note that before the learned
Additional Chief Metropolitan Magistrate it was stated that the detenu did not
know the details of the goods available in the baggages. The learned Judge
has also observed that after collecting two checked up baggages and hand bag,
the detenu left the airport because nobody has approached him at the airport
for receiving the 3 baggages which were given by the unknown person at
Singapore. However, as rightly pointed out in his representation dated
31-01-2004 he had stated that on 12-01-2004 he arrived at Chennai airport by
flight IC 556 and due to continuous stomach pain he was forced to abandon his
baggage at airport and he left the airport. He had also stated that out of
the items listed by the officers as his goods few items did not belong to him
and other items were over valued and requested for revaluation. For this, the
Customs Department in their reply dated 12-02-2004 had stated that the entire
goods were recovered from his baggage only and that the values adopted are in
tune with the valuation adopted for same models during the period in Chennai
and other Airports. In such a circumstance, we are of the view that the
detaining authority has not committed any error in not considering the finding
rendered by the learned Additional Chief Metropolitan Magistrate while
granting bail in favour of the detenu.
10. From the materials placed, the detaining authority is right in arriving
at a conclusion that the electronic goods in trade quantity were brought by
the detenu with his knowledge and abandoned them at the airport to evade
Customs Duty. We also satisfied that the detaining authority has not violated
any of the statutory provisions while passing the order of detention. It is
also brought to our notice that the representation of the detenu’s wife dated
16-3-2004 was also properly considered and disposed of on 29-3-2004. We are
satisfied that in the light of the four Government holidays, the
representation was properly considered and disposed of within 9 days and there
was no delay in considering the same. The department has also explained that
the value adopted by the Customs are in tune with the valuation adopted for
the same models during the period in Chennai and other Airports.
11. Under these circumstances, we do not find any valid ground for
interference; accordingly the petition fails and the same is dismissed.
R.B.
Index : Yes.
Internet: Yes.
To:-
1. The Secretary to Government,
Public (SC) Department, Fort St. George,
Chennai-600 009.
2. The Secretary to Union of India,
Ministry of Finance, Department of
Revenue, COFEPOSA Unit, New Delhi-110 001.
3. The Public Prosecutor, High Court, Madras.