ORDER
S.K. Agarwal, J.
1. The petitioner, wife of the detenu Ram Murti has challenged the order of detention No. F5/12/2000/HP-II dated 20.6.2000 passed by Lt. Governor of National Capital Territory of Delhi u/s.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter the Act).
2. The ground of detention, inter ali, stated: that on 9th April, 2000 the detenu arrived at the I.G.I. Airport, New Delhi, from Dubai by Gulf Airlines flight GF 130. After immigration clearance he allegedly walked through the green channel and was stopped by the Customs Preventive Officer at the exit gate of Arrival Hall and was asked whether he was carrying any dutiable goods. He replied in the negative. Two independent witnesses were called and in their presence he was again asked whether he was carrying and dutiable goods such as gold, silver, mobile phones, etc. This time again detenu replied in the negative. Thereupon, a notice u/s. 102 of the Customs Act, 1962 was served asking him whether he would like to get his baggage searched in the presence of Magistrate or Gazetted Officer and he replied in writing that his baggage could be searched by any customs officer. On search of his bags following dutiable goods (126 mobile phones) were discovered:-
Sl. No. Item No. Value (I.V.)
1. Panasonic Mobile 102 10,20,000
Phones Model GD 90
with Batteries.
2. Nokia Mobile Phones 20 3,60,000
Model 8210 with Batteries
3. Motorola Mobile Phones 4 72,000
NC-2-41E11 with Batteries
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Total 126 14,52,000
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Market value of the goods was assessed to be Rs. 28,08,749/-. Since the detenu was not able to produce any legal evidence for importation of the goods or proof of payment of customs duty, the recovered goods were seized u/s. 110 of the Customs Act, 1962(hereafter the Custom Act) in the reasonable belief that the goods have been smuggled into India and were liable to be confiscated under the provisions of the said Act. Panchnama dated 9th April, 2000 was prepared at the spot. Statement of the detenu was recorded u/s. 108 of the Customs Act, wherein he inter-alia admitted that he flew to Dubai from Delhi on 7th April, 2000 on a ticket handed over to him at his residence by a person, who told him that one Bhola had sent the ticket whom he had met in Dubai on his previous visit. The goods which were recovered were brought by Bhola, who had asked the detenu to take them to Delhi and hand over to a person outside the IGI Airport who was to recognise the detenu. He was promised to be paid Rs. 20,000/- for bringing those goods. He, however did not know the address of said Bhola in India. He also did not know the address of the contact man of Bhola in India, who had given him the tickets. After his arrest residential premises of the detenu were searched but nothing incriminating was found. The scrutiny of the passport of the detenu revealed that he had made fourteen short trips abroad between 4-1-1999 to 9-4-2000. He travelled to Singapore and Hongkong, eight times, and six times to UAE during this period. He was remanded to judicial custody uptill 24th April, 2000 and the remand was extended from time to time his application for grant of bail was dismissed. Thereafter, he filed an application for grant of bail, before the High Court, which was listed for hearing on 4th July, 2000. In the meantime complaint against him was also filed.
3. The Lt. Governor of the National Capital Territory of Delhi taking into consideration, aforesaid facts including his retraction and his application for bail pending in the High Court of Delhi, found that there was imminent possibility of the detenu being released on bail. Keeping in view his modus operandi to smuggle electronic items into India, he felt satisfied that detenu would continue to indulge in pre-judicial activities if released on bail. The Detaining Authority with a view to preventing him from smuggling goods in future passed the impugned order of detention. Copy of the detention order was not filed and the same was taken on record subsequently.
4. We have heard learned counsel for parties and have been taken through the record.
Learned counsel for petitioner has challenged the order of detention on the grounds (i) that the subjective satisfaction of the detaining authority is vitiated as it was passed mechanically at the dictate of the sponsoring authority i.e. Commissioner of Customs, IGI Airport, New Delhi without considering the quantum of customs duty involved and the existing New Import-Export Policy and Procedures 1997-2002, under which the import of “Mobile Phones” are freely permissible and that the concealment and non disclosure of material vital facts which would have influenced the mind of the detaining authority, one way or the other, such as amount of customs duty involved under the current policy and (ii) that the non-consideration of the contents of the detention receipt issued by the sponsoring authority which has resulted in non application of mind on the part of the detaining authority, vitiating the requisite subjective satisfaction rendering the impugned detention order invalid.
5. Legal position with regard to the subjective satisfaction in preventive detention matter is well settled, by several authoritative pronouncements. In order to decide whether a person is to be placed under the preventive detention or not, the detaining authority has to act on the basis of the information supplied to it by the sponsoring authority. Satisfaction which the detaining authority has to arrive u/s.3(1) of the Act, is a subjective satisfaction. Court while examining the question whether the condition for making a detention order exists, cannot examine the sufficiency of material on the basis of which the satisfaction was based. The court has the limited jurisdiction to examine whether the subjective decision reached by the detaining authority was based on some material on record. There can be no dispute that the detention order would get vitiated, if the material or vital facts, which would have bearing on the issue and influenced the mind of the detaining authority, one way or the other, were ignored or not considered by the detaining authority before passing detention order. Reference in this regard can be made to decision of Supreme Court in Ashadevi Vs. K. Shivraj and Anr., AIR 1979, SC, 447 wherein it was held.
“It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.”
6. It was argued that under the New Import-Export Policy and Procedures 1997-02; the quantum of customs duty involved was only Rupees 3.75 lakhs (approximately); and that if this fact was brought to the notice of the detaining authority, it would have certainly influenced its mind one way or the other is without any merit. Admittedly, all the supporting documents including bail applications moved by the detenu, reply filed by the customs, confessional statement of the detenu as well as his retraction were placed before the detaining authority. In view of the same it is not possible to assume that the detaining authority was not aware of the said policy.
7. The Supreme Court while dealing with the similar argument that the connected records relating to the co-traveller who was allegedly found in possession of 102 mobile phones, in Rajappa Neelkantan vs. State of Tamil Nadu rejected the same observing:
“Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised now.”
In this case goods were liable to be confiscated as they were attempted to be smuggled into India by passing through the green channel without declaring the same to the Customs under Section 77 of the Customs Act. As per the allegations the detenu had not declared that he was carrying dutiable goods, even on a specific query. The detention order was passed with a view to preventing the detenu from engaging in the transporting smuggle goods, inter alia, taking into consideration detenu’s earlier confessional statement before the Custom Authorities, subsequent retractions, his 14 short trips to Singapore, Hong Kong, UAE within a short span of 15 months. In view of the above, the plea of the detenu is rejected.
8. The second ground of challenge was that the detaining authority did not take into consideration that the goods in question were declared but the same were detained against the Detention Receipt by the Customs Authorities because they were not sure about the exact duty payable. In support of this argument lot of exphasis was laid on printed lines of the Detention Receipt (Annexure P-II) “the goods have been detained at my request and sealed in my presence over my signature in (No. of package with description) Gross Wt.”. The Receipt was duly signed by the detenu Ram Murti, Air Customs Superintendent and the official who had received the sealed packages at the warehouse. In reply it was stated that the Detention Receipts are the formats used by the department to deposit the seized goods in the warehouse for safe custody. At the top of the Receipt it is mentioned “Arrest Case”. It gives the details of the articles deposited by the customs officers in the warehouse. Admittedly, Detention Receipt was also placed before the detaining authority. Therefore, the conclusions sought to be drawn from its contents by the petitioner are totally misplaced.
No other point was argued.
9. We find no merit in any of the pleas advanced. Consequently writ petition is dismissed.