{"id":229228,"date":"1992-05-14T00:00:00","date_gmt":"1992-05-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-k-bapna-vs-union-of-india-and-ors-on-14-may-1992"},"modified":"2015-02-26T09:58:55","modified_gmt":"2015-02-26T04:28:55","slug":"n-k-bapna-vs-union-of-india-and-ors-on-14-may-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-k-bapna-vs-union-of-india-and-ors-on-14-may-1992","title":{"rendered":"N.K. Bapna vs Union Of India And Ors on 14 May, 1992"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N.K. Bapna vs Union Of India And Ors on 14 May, 1992<\/div>\n
Equivalent citations: 1992 SCR (3) 267, \t 1992 SCC (3) 512<\/div>\n
Author: S Rangnathan<\/div>\n
Bench: Rangnathan, S.<\/div>\n
           PETITIONER:\nN.K. BAPNA\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT14\/05\/1992\n\nBENCH:\nRANGNATHAN, S.\nBENCH:\nRANGNATHAN, S.\nRAMASWAMI, V. (J) II\nYOGESHWAR DAYAL (J)\n\nCITATION:\n 1992 SCR  (3) 267\t  1992 SCC  (3) 512\n JT 1992 (4)\t49\t  1992 SCALE  (1)1135\n\n\nACT:\n     Constitution of India, 1950:\n     Articles 21, 22 and 32-Preventive\t Detention-Detention\norder-Whether could be challenged even before service of the\norder  on  the detenu-Claims of the  State  and\t fundamental\nright of the citizen to be balanced.\n     Conservation  of  Foreign\tExchange  &  Prevention\t  of\nSmuggling Activities Act, 1974:\n     Section 3(1)-Goods imported by company and declared  to\ncustoms\t authorities-After assessment to duty and  clearance\nkept  in  bonded warehouses under lock and  key\t of  customs\nofficials-Removal or abetting removal by Managing  Director,\nwithout\t permission  of proper\tofficer-Whether\t constituted\nsmuggling-Detention order-Legality of.\n     Customs Act, 1962:\n     Sections  2(39), 2(43), 23, 49, 59, 72 and\t 111(j)\t and\n125(2)-Import  of goods-Goods assessed to duty and  kept  in\nwarehouse  under  lock\tand  key  of  customs\tauthorities-\nClandestine  removal  of goods without\tpaying\tof  assessed\nduty-Whether constituted 'smuggling'-Whether goods liable to\nbe  confiscated-Import of goods when concluded-Whether\topen\nto authorities to either confiscate goods or collect  duties\npayable by them.\n\n\n\nHEADNOTE:\n     The  Petitioner was the Managing Director of a  company\nengaged\t in  the business of manufacture and  production  of\nplastic\t goods.\t The Company imported certain materials\t and\nthe   good  were  cleared  for\tbonded\twarehouseing   after\nassessment  to\tduty.\tThe  Company  cleared  part  of\t the\nmaterial,  after payment of duty, under the  supervision  of\nthe  Customs Officials on different dates, and\tthe  balance\nwas  kept in the warehouses, which were kept under lock\t and\nkey and the key was in the custody of\n\t\t\t\t\t\t       268\nCustoms\t officials.  Sometime later, the  Customs  officials\ndiscovered  shortage  of material kept\tin  the\t warehouses.\nCertain\t enquiries and proceedings ensued and in the  course\nof  these  enquiries, the petitioner came to  know  that  an\norder of detention had been passed against him under Section\n3(1) of the Conservation of Foreign Exchange & Prevention of\nSmuggling  Activities Act, 1974, with a view  to  preventing\nhim  from abetting the smuggling of goods.  Without  waiting\nfor  the order and the grounds of detention being served  on\nhim,  the petitioner filed a writ petition before  the\tHigh\nCourt  challenging the order of detention.  The\t authorities\ndid not file any counter affidavit affirming or denying\t the\nfacts  mentioned  in  the writ petition nor  did  they\tcome\nforward\t to  disclose or even indicate the  grounds  of\t the\nproposed  detention,  if any.  A Single Judge  of  the\tHigh\nCourt dismissed the writ petition on the ground that, on the\nfacts disclosed in the petition, the case, prima facie\tfell\nwithin the scope of the expression 'smuggling' as defined in\nthe Act.\n     On\t  appeal,   the\t Division  Bench   held\t  that\t the\ncircumstances\treferred  to  in  the  petition\t  were\t not\nsufficient to constitute 'smuggling'.  However, it dismissed\nthe appeal on the view that without the grounds of detention\nit  would  not\tbe  proper for the courts  to  go  into\t the\nvalidity or otherwise of the order of detention or make\t any\npronouncement that the order in question had not been passed\nunder  the  Act\t under which it was proposed  to  have\tbeen\npassed\tor  that it was passed with a wrong purpose  or\t was\npassed on vague, extraneous or irrelevant grounds.\n     In\t the  Special Leave Petition before  this  Court  on\nbehalf of the Petitioner it was contended that the  Division\nBench of the High Court having held that activities did\t not\nconstitute  'smuggling' ought to have  straightaway  quashed\nthe  detention\torder; that the goods in question  had\tbeen\nassessed to customs duty by the authorities and an order for\ntheir  clearance from the customs area had been made on\t the\nexecution  of a bond for the due payment of the\t duty;\tthat\nthe petitioner was not guilty of 'smuggling' or the abetment\nthereof; that the scope of s.111(j) should be restricted  to\ngoods which were dutiable and no duty had been assessed\t and\ntheir  removal\tfrom  a warehouse where\t they  were  lodged,\npending\t assessment of duty, that the operation of  'import'\nwas  concluded once the goods were assessed to customs\tduty\nand  cleared  from  the\t customs area  and  the\t concept  of\n'smuggling'  could have no meaning in respect of such  goods\nthereafter,  that where goods were removed from a  warehouse\nin which they\n\t\t\t\t\t\t       269\nwere  lodged  under  section 59 without\t permission  of\t the\nconcerned  authorities,\t the  only  consequence\t that  could\nfollow\twas action under section 72; and there could  be  no\nlevy  of penalty under Section 125, and such goods were\t not\nliable\t to   confiscation,  and  the  provision   for\t the\ncontravention  of  which  there\t could\tbe  no\tpenalty\t  or\nconfiscation  should  not  be  so  read\t as  justifying\t the\ndraconian  remedy  of preventive detention; once  the  goods\nwere  cleared  by  the customs authorities,  they  were\t not\nliable to confiscation, unless the order granting  clearance\nwas reversed in appropriate proceedings.\n     Dismissing the Special Leave Petition, this Court,\n     HELD  : 1. It is now well settled that, even in a\tcase\nof  preventive\tdetention,  it\tis  not\t necessary  for\t the\nproposed  detenu  to wait till a detention order  is  served\nupon him before challenging the detention order.  Though the\nConstitution  of India, which permits preventive  detention,\nrequires  the detaining authorities to serve the grounds  of\ndetention  within a prescribed\tperiod after  the  detention\norder  is  served on the detenu, it does  not  envisage\t any\ndisclosure of the grounds of detention prior to the  service\nof the detention order on the detenu.  To apprise the detenu\nin  advance  of the grounds on which he is  proposed  to  be\ndetained may well frustrate the very purpose of the law.  On\nthe other hand, to insist that no order of detention can  be\nchallenged until actual detention in pursuance thereof takes\nplace  might irretrievably prejudice the rights of  proposed\ndetenus in certain situations. Thus, the conflicting  claims\nof the State and the fundamental right of a citizen need  to\nbe   reconciled\t and  the  limitations,\t if  any   precisely\nenunciated. [273 E-G]\n     The  Additional Secretary to the Government of India  &\nOrs.  v. Smt. Alka Subhash Gadia & Ors.,<\/a> (1991)\t 1  J.T.S.C.\n549, relied on.\n     2.1.  The\tactivity  of the  company  would  amount  to\nsmuggling  and\tthat  of  the  petitioner  to  abetment\t  of\nsmuggling  if  they  had removed or caused  or\tabetted\t the\nremoved\t of the goods from the bonded warehouse without\t the\npermission  of\tthe  concerned authorities.   The  order  of\ndetention  proposed  cannot be said to proceed\ton  a  basis\ntotally\t extraneous to the provisions of the Act and  cannot\nbe described as an order not made under the Act under  which\nit  is purportedly made nor can it be said that the  grounds\nof  detention  are vague, irrelevant or\t extraneous  to\t the\npurpose or provision of the Conservation of Foreign Exchange\n(prevention of Smug-\n\t\t\t\t\t\t       270\ngling Activities) Act. [280 G-H, 281A]\n     2.2.  There can be no smuggling if the goods  had\tbeen\nremoved from the warehouse not by the petitioner but by\t the\ncustoms\t authorities or somebody else.\tBut that will  be  a\nquestion of fact.  Assuming that the goods have been removed\nby  the petitioner or the company for the warehouse  without\nthe  permission of the proper officer, a simple\t reading  of\nthe relevant sections is sufficient to say prima facie that,\nin  the\t present  case,\t there has  been  smuggling  by\t the\nCompany, and an abetment of smuggling by the petitioner.  On\nthe  broad  conspectus of facts and the\t special  definition\nclauses in the relevant statutes it cannot be said that\t the\nproposed  detention  in this case  is  totally\toutside\t the\nprovisions  of\tthe  statute.\tIf  there  is  prima  facie,\nsmuggling  or  abetment\t of smuggling, it  is  open  to\t the\ncompetent authorities to issue a detention order, which\t may\nbe challenged later on the merits on any grounds that may be\navailable  but\tit  cannot  be\tsaid  that  the\t action\t  is\nflagrantly in violation of the statute or that the order  is\none not made under the provisions of the statute under which\nit has been purportedly issued. [277 A-D]\n     3.1.  There is no justification to\t restrict  \"dutiable\ngoods\"\tto \"dutiable goods not yet assessed to\tduty\".\t The\nsuggestion that \"warehouse\" referred to in the clause (j) of\nSection\t 111  should be understood to mean  a  warehouse  to\nwhich  goods  are removed under s.49 but not  one  to  which\ngoods  are  taken  in pursuance of s.59,  ignores  the\twide\ndefinition  of\tthat expression set out in  s.2(43)  of\t the\nCustoms Act. [278 D-E]\n     Deputy Commissioner of Commercial Taxes v. M\/s.  Caltex\nIndia)\tLtd.,  AIR 1962 Mad 298 and Union of India  v.\tJain\nSudh  Vanasapthi Ltd.,<\/a> 1992 1 Scale 34 10 E.L.T. 43  (Del.),\nreferred to.\n     3.2. Even the general concept of smuggling contains two\nelements: one, the bringing into India of goods, the  import\nof which is prohibied; and two, the bringing into  country's\ntrade  stream,\tof goods the import of\twhich  is  permitted\nwithout\t paying\t the  customs duties  with  which  they\t are\nchargeable.  The second eventually can occur not only  where\nthere is a clandestine import evading the assessment of duty\nbut  also  where  there is  a  clandestine  removal  without\npayment of the assessed duty.  In a case where the goods are\nwarehoused  under s.49 and they are  clandestinely  removed,\nthere would be smuggling as the duties payable thereon\thave\nbeen evaded altogether.\t But even in a case where the  goods\nare assessed\n\t\t\t\t\t\t       271\nto  duty  and  allowed\tto  be\twarehoused  under  s.59,   a\nclandestine  removal can result in loss of duty.  No  doubt,\nthere is a provision in s.72 for collection of the duty\t and\nforfeiture  of the bond furnished to secure due\t payment  of\nduty  but  these  may not always be adequate  cover  to\t the\nRevenue\t if the goods are spirited away without\t permission.\n[278 F-H, 279 A]\n     3.3. The mere fact that the goods have been  ostensibly\ncleared,  after assessment of duty, to a warehouse does\t not\npreclude the applicability of the concept of smuggling\teven\nin  such  a  case.  In a sense, import may  be\tsaid  to  be\ncomplete  for certain purposes, say, sales tax\tpurposes  on\ntheir  clearance after assessment of duties at\tthe  customs\nbarrier\t but it is not complete in a real sense.   Even\t the\nwarehouse,  to which the goods are permitted to\t be  removed\nunder  s.59  is\t a premises under the lock and\tkey  of\t the\ncustoms authorities and is, in a sense, an extension of\t the\ncustoms\t area.\tGood's\tcan be cleared\ttherefrom  for\thome\nconsumption  or\t exportation only after payment\t of  duties.\nTill  that is done, there is always the risk of the loss  to\nthe  State of the duties payable.  So import cannot be\tsaid\nto  be complete till then.  There is no reason to read\tdown\ns.111 (j) which only recognises this position. [279 B-D]\n     Deputy  Commissioner of Commercial Taxes v. M\/S  Caltex\n(India) Ltd. AIR 1962 Mad 298, referred to.\n     3.4. The consequences which follow on a particular\t act\nor  omission  will  depend on the  statutory  provisions  in\nquestion. It may be that the petitioner's act in the present\ncase  may not have attracted s.125 as it stood\tearlier\t but\nwill  now  attract a penalty in view  of  s.125(2)  inserted\nw.e.f.\t27.12.1985.   It  may also  attract  s.72  but\tthis\ncannot,\t however,  be  decisive\t of  the  interpretation  of\ns.111(j). [279 G]\n     Shewpujanrai  Indrasanrai\tLtd.  v.  The  Collector  of\nCustoms & Ors.,<\/a> [1959] S.C.R. 821, referred to.\n     3.5.  Even\t if  it is assumed that\t s.72  will  not  be\napplicable where the goods are confiscated, the\t authorities\nhave  to  choose, having regard to  all\t the  circumstances,\nbetween confiscating the goods on the one hand or collecting\nthe  duties payable thereon on the other.  Having regard  to\nthe  language  of s.111(j), it cannot held that\t in  such  a\ncase,  the  goods  are not liable  to  confiscation,  merely\nbecause an alternative recourse to Section 72 is  available.\nIn  view  of the language of Section 111(j), the  goods\t are\nliable\n\t\t\t\t\t\t       272\nto  confiscation.   This conclusion does not  go  behind  or\nignore\tthe effect of the order clearance.  It\taccepts\t the\nfact  of  clearance  and proceeds on the  footing  that\t the\ngoods,\trightly cleared under s.59, have been  clandestinely\nremoved\t from the warehouse within the meaning of s.59. [280\nB,F]\n     Union  of India v. Jain Shudh Vanaspathi,<\/a> (1992)  Scale\n34 and Jain Shudh Vanaspathi Ltd. & Anr. v. Union of India &\nOrs., (1982) 10 E.L.T. 43 (Del.), referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL  APPELLATE JURISDICTION : Special Leave  Petition
\n(C) No. 5781 of 1992.\n<\/p>\n
     From  the\tJudgment  and Order dated  6.4.1992  of\t the
\nCalcutta High Court in F.M.A.T. No. 914 of 1992.\n<\/p>\n
     A.K.  Sen,\t Pradeep Tarafdar, B.N.\t Singhvi  (for\tM\/s.
\nSwarup John & Co.) for the Petitioner.\n<\/p>\n
     A Subba Rao and Parmeswaran for the Respondent.
\n     The Judgement of the Court was delivered by
\n     S.\t RANGANATHAN,  J.  The petitioner  is  the  Managing
\nDirector  of  M\/s  E.A.P. Industries Ltd.,  engaged  in\t the
\nbusiness of manufacture and production of plastic compounds,
\nplastic\t films\tand  sheets  and  plastic  chemicals.\t The
\npetitioner says that it came to his knowledge that an  order
\nhas been passed on 1st January, 1992 directing his detention
\nunder section 3(1) of the Conservation of Foreign Exchange &
\nPrevention  of Smuggling Activities Act,  1974\t(hereinafter
\nreferred  to as ‘the Act’) – with a view to  preventing\t him
\nfrom abetting the smuggling of goods. A copy, purporting  to
\nbe  a  copy of the said order, has been\t placed\t on  record,
\nthough it is not quite clear how the petitioner came by\t it.
\nThereupon  he  filed a writ petition in\t the  Calcutta\tHigh
\nCourt for an injuction restraining the concerned authorities
\nfrom  detaining him in pursuance of the above  order.\tThis
\nwrit  petition as an appeal therefrom have  been  dismissed;
\nhence the present Special Leave Petition.\n<\/p>\n
     According\tto the Petitioner, the detention  order\t has
\nbeen issued in consequence of certain proceedings which\t had
\nbeen  initiated\t against him by the customs  officials.\t  He
\nsays that the company imported 267.782 metric tons of Ethyle
\nHexanol (EHA). This Consignment was unloaded at
\n\t\t\t\t\t\t       273<\/span>
\nKandla\tport  and  24 tankers thereof  were  transported  to
\nbonded\twarehouses  after  assessment to  duty\tin  October-
\nNovember 1989. Out of the chemical thus kept in the   bonded
\nwarehouse  the\tcompany\t cleared  175  metric  tons  between
\nDecember,  89  and  October, 90 on  payment  of\t duty.\t The
\ncompany\t also imported 204 M.T. of P.V.C. Resin from  France
\non  2.5.90. This consignment was unloaded at  Calcutta\tPort
\nand  was  cleared for bonded warehousing.  Out\tof  this  75
\nMetric\ttons  of P.V.C. resin were cleared  by\tthe  company
\nafter payment of duty on 17.9.1990 and 8.11.1990  under\t the
\nsupervision  of\t the Customs officials.\t  According  to\t the
\npetitioner  the warehouse were kept under lock and  key\t and
\nthe key was in the custody of customs officials.\n<\/p>\n
     Sometime  in  September  1991,  the  Customs  officials
\ndiscovered a shortage of 93.975 metric tons of P.V.C.  resin
\nand a similar shortage also in the stock of EHA kept in\t the
\nwarehouse.  Centain enquires and proceedings ensued and\t the
\npetitioner  says  that in the course of these  enquiries  he
\ncame  to  know that an order of detention  had\tbeen  passed
\nagainst\t him under the Act.  Without waiting for  the  order
\nand  the  grounds  of detention being  served  on  him,\t the
\npetitioner  filed a writ petition challenging the  order  of
\ndetention.\n<\/p>\n
     It\t is  now  well\tsettled that,  even  in\t a  case  of
\npreventive  detention, it is not necessary for the  proposed
\ndetenu\tto  wait till a detention order is served  from\t him
\nbefore challenging the detention order.\t It is true that the
\nConstitution  of India, which permits  preventive  detention
\nrequires  the detaining authorities to serve the grounds  of
\ndetention  within  a prescribed period after  the  detention
\norder  is  served on the detenu.  It does not  envisage\t any
\ndisclosure of the grounds of detention prior to the  service
\nof the detention order on the detenu.  To apprise the detenu
\nin  advance  of the grounds on which he is  proposed  to  be
\ndetained may well frustrate the very purpose of the law.  On
\nthe other hand, to insist that no order of detention can  be
\nchallenged until actual detention in pursuance thereof takes
\nplace  might irretrievably prejudice the rights of  proposed
\ndetenus in certain situations.\tThus, the conflicting claims
\nof the State and the fundamental right of a citizen need  to
\nbe  reconciled\tand  the  limitations,\tif  any,   precisely
\nenuciated.   This  has been done by the recent\tdecision  of
\nthis Court in The Additional Secretary to the Government  of
\nIndia  &  Ors. v. Smt. Alka Subhash Gadia & Ors.,<\/a>  1991\t (1)
\nJ.T.  (S.C.)  549.  The real question of law that  fell\t for
\nconsideration before the court in that case was whether the
\n\t\t\t\t\t\t       274<\/span>
\ndetenu or anyone on his behalf is entitled to challenge\t the
\ndetention   order   without   the   detenu   submitting\t  or
\nsurrendering  to  it and if so in what type of cases.  As  a
\ncorollary to this question, the incidental question that had
\nto  be answered was whether the detenu or the petitioner  on
\nhis  behalf,  is entitled to  the detention  order  and\t the
\ngrounds\t on  which the detention order is  made\t before\t the
\ndetenu\tsubmits\t to  the  order.   The\tfirst  question\t was
\nanswered  by saying that the courts have power to  interfere
\neven  before the detention order is served or the  detention
\nis effected but that such power will be exercised  sparingly
\nand  in\t exceptional cases of the type\tenunciated  therein.
\nThe Court observed :\n<\/p>\n
\t  “It is not correct to say that the courts have  no
\n\t power to entertain grievances against any detention
\n\t order prior to its execution.\tThe courts have\t the
\n\t necessary  power  and they have used it  in  proper
\n\t cases as has been pointed out above, although\tsuch
\n\t cases\thave been few and the grounds on  which\t the
\n\t courts\t have  interfered  with\t them  at  the\tpre-
\n\t execution  stage  are necessarily very\t limited  in
\n\t scope and number, viz., where the courts are  prima
\n\t facie satisfied (i) that the impugned order is\t not
\n\t passed under the Act under which it is purported to
\n\t have  been  passed, (ii) that it is  sought  to  be
\n\t executed  against a wrong person, (iii) that it  is
\n\t passed for a wrong purpose, (iv) that it is  passed
\n\t on vague, extraneous and irrelevant grounds or\t (v)
\n\t that the authority which passed it had no authority
\n\t to  do so.  The refusal by the courts to use  their
\n\t extraordinary\t powers\t  of  judicial\t review\t  to
\n\t interfere with the detention orders prior to  their
\n\t execution  on any other ground does not  amount  to
\n\t the  abandonment  of  the said power  or  to  their
\n\t denial\t to the proposed detenu, but prevents  their
\n\t abuse and the perversion of the law in question.”
\n     On the second question, the Court had this to say:
\n\t  “In  view of the discussion aforesaid, the  answer
\n\t to  this question has to be firmly in the  negative
\n\t for  various  reasons.\t In the first  instance,  as
\n\t stated earlier, the Constitution and the valid\t law
\n\t made  thereunder do not make any provision for\t the
\n\t same.\t On the other hand, they permit\t the  arrest
\n\t and detention of a person without furnishing to the
\n\t detenu the order and the grounds
\n\t\t\t\t\t\t       275<\/span>
\n\t thereof  in advance.  Secondly, when the order\t and
\n\t the  grounds  are  served and the detenu  is  in  a
\n\t position  to  make  out  prima\t facie\tthe  limited
\n\t grounds   on\twhich  they  can   be\tsuccessfully
\n\t challenged,  the  courts, as pointed  out  earlier,
\n\t have power even to grant bail to the detenu pending
\n\t the final hearing of his petition.   Alternatively,
\n\t as stated earlier, the Court can and does hear such
\n\t petition expeditiously to give the necessary relief
\n\t to  the detenu.  Thirdly, in the rare\tcases  where
\n\t the  detenu, before being served with them,  learns
\n\t of the detention order and the grounds on which  it
\n\t is made, and satisfies the Court of their existence
\n\t by  proper affirmation, the Court does not  decline
\n\t to  entertain\tthe writ petition even at  the\tpre-
\n\t execution  stage,  of course, on the  very  limited
\n\t grounds  stated above.\t The Court no doubt even  in
\n\t such  cases  is not obliged to interfere  with\t the
\n\t impugned  order at that stage and may\tinsist\tthat
\n\t the  detenu  should first submit to it.   It  will,
\n\t however,  depend  on the facts of each\t case.\t The
\n\t decisions  and the orders cited above show that  in
\n\t some genuine cases, the Courts have exercised their
\n\t powers\t at  the pre-execution\tstage,\tthough\tsuch
\n\t cases\thave  been rare.  This only  emphasises\t the
\n\t fact  that the Courts have power to interfere\twith
\n\t the  detention\t orders even  at  the  pre-execution
\n\t stage but they are not obliged to do so nor will it
\n\t be  proper  for them to do so save  in\t exceptional
\n\t cases.\t Much less can a detenu claim such  exercise
\n\t of  power as a matter of right.  The descretion  is
\n\t of the Court and it has to be exercised  judicially
\n\t on will-settled principles.”\n<\/p>\n
     In\t the present case, the authorities did not file\t any
\ncounter\t affidavit affirming or denying the facts  mentioned
\nin  the writ petition nor did they come forward to  disclose
\nor  even indicate the grounds of the proposed detention,  if
\nany.   The learned Single Judge in the High Court  dismissed
\nthe  writ  petition on the short ground that, on  the  facts
\ndisclosed in the petition, the present case prima facie fell
\nwithin the scope of the expression ‘smuggling’ as defined in
\nthe Act.  The Division Bench came to the conclusion that the
\ncircumstances\treferred  to  in  the  petition\t  were\t not
\nsufficient  to\tconstitute ‘smuggling’.\t  Nevertheless,\t the
\nCourt took the view that without the grounds of detention it
\nwill not be proper for courts the to go into the validity or
\notherwise   of\t the  order  of\t detention   or\t  make\t any
\npronouncement  that the impugned order has not\tbeen  passed
\nunder the Act under which
\n\t\t\t\t\t\t       276<\/span>
\nit  is\tproposed to have been passed or that it\t was  passed
\nwith  a wrong purpose or was passed on vague, extraneous  or
\nirrelevant grounds.\n<\/p>\n
     We\t have heard Sri Asoke Sen, learned counsel  for\t the
\npetitioner  and\t Sri  Subba Rao,  learned  counsel  for\t the
\nrespondent at considerable length.  Sri Asoke  Sen  contends
\nthat  the Division Bench of the High Court  having  accepted
\nthe  petitioner’s  contention  that  his  acivities  do\t not
\nconstitute  ‘smuggling’ ought to have  straightaway  quashed
\nthe  detention\torder.\t He points out\tthat  the  goods  in
\nquestion   had\tbeen  assessed\tto  customs  duty   by\t the
\nauthorities  and  an  order for\t their\tclearance  from\t the
\ncustoms\t area had been made on the execution of a  bond\t for
\nthe  due payment of the duty.  Referring to the\t definitions
\nof  ‘smuggling’\t in various dictionaries and  decisions,  he
\ncontends   that\t it  is\t ridiculous  to\t suggest  that\t the
\npetitioner is guilty of ‘smuggling’ or the abetment thereof.
\nPrima  facie,  one would ageer that  there  is\tconsiderable
\nforce  in  this contention of the learned  counsel  for\t the
\npetitioner that there cannot be any smuggling of goods which
\nhave   been  openly  imported,\tdeclared  to   the   customs
\nauthorities  and  cleared by them after\t being\tassessed  to
\nduty.\tHowever, we cannot go by the dictionary\t meaning  of
\nthe  word as the Act has a definition clause  which  adopts,
\nfor the word, the same meaning which it has in section 2(39)
\nof  the\t Customs  Act. Section 2(39)  of  the  Customs\tAct,
\ndefines ‘smuggling’ thus:\n<\/p>\n
\t  “Smuggling”,\tin relation to any goods, means\t any
\n\t act or omission which will render such goods liable
\n\t to confiscation under section 111 or section 113″.
\n     Section  111 declares, inter alia, that  the  following
\ngoods will be liable to confiscation:\n<\/p>\n
\t  (j)  any dutiable goods removed or attempted to be
\n\t removed from a warehouse without the permission  of
\n\t the proper officer or contrary to the terms of such
\n\t permission.\n<\/p>\n
and  section 2(43) of the said Act contains a definition  of
\n‘warehouse’, which reads:\n<\/p>\n
\t  ‘Warehouse’  means  a public\twarehouse  appointed
\n\t under\tsection 57 or a private\t warehouse  licensed
\n\t under section 58.”\n<\/p>\n
     It\t is  clear  even from the  facts  disclosed  in\t the
\npetition  that the case of the authorities may be  that\t the
\npetitioner has abetted the removal of the
\n\t\t\t\t\t\t       277<\/span>
\nimported  goods\t from  the  bonded  warehouse  without\t the
\npermission  of the proper officer.  Of course, there can  be
\nno smuggling if the goods had been removed for the warehouse
\nnot  by\t the petitioner but by the  customs  authorities  or
\nsomebody else as suggested by the petitioner.  But that will
\nbe  a  question\t of  fact and one has  to  assume,  for\t the
\npurposes of the present argument, that the goods are alleged
\nto  have been removed by the petitioner or the company\tfrom
\nthe warehouse without the permission of the proper  officer.
\nIn  such  a  situation, a simple  reading  of  the  relevant
\nsections  is  sufficient  to say prima facie  that,  in\t the
\npresent\t case, there has been smuggling by the company,\t and
\nan abetment of smuggling by the petitioner.  It is difficult
\nto  say\t on the broad conspectus of facts  and\tthe  special
\ndefinition  clauses  in\t the  relevant\tstatutes  that\t the
\nproposed  detention  in\t this case is  totally\toutside\t the
\nprovisions  of\tthe  statute.\tIf  there  is  prima  facie,
\nsmuggling  or  abetment\t of smuggling, it  is  open  to\t the
\ncompetent  authorities to issue a detention order which\t may
\nbe challenged later on the merits on any grounds that may be
\navailable  but\tit  cannot  be\tsaid  that  the\t action\t  is
\nflagrantly in violation of the statute or that the order  is
\none not made under the provisions of the statute under which
\nit has been purportedly issued.\n<\/p>\n
     Realising\tthe direct impact of the relevant  statutory
\nprovisions  on\tthe sparse facts stated by  the\t petitioner,
\nShri  Ashoke Sen has elaborated contentions before us  which
\nhave found favour with the Division Bench of the High  Court
\nto  demonstrate\t that  the facts alleged do  not  bring\t the
\npresent case within the statutory provisions.  According  to
\nhim,  section  111 (j) comes into operation only in  a\tcase
\nwhere  no duty has been assessed on goods and the goods\t are
\nallowed to be deposited in a warehouse under the  provisions
\nof  section  49 of the Customs Act  pending  clearance\tfrom
\ncustoms.   He  submits that in such a case  the\t removal  of
\ngoods  without the permission of the  statutory\t authorities
\nwould amount of smuggling because in such a case the process
\nof  import is not complete.  Also in such a case  the  goods
\nwould  clearly have escaped duty because the  provisions  of
\nsection 72 are not made applicable to a case where the goods
\nare warehoused under section 49.  In such a case Shri Ashoka
\nSen says, the statutory concept of smuggling would  squarely
\napply but, he says, it cannot have any application to a case
\nwhere  the goods are cleared from the customs area with\t the
\npermission  of\tthe customs authorities.  In  this  type  of
\ncase,  the  process of import is complete  :  vide,  Deputy
\nCommissioner  of  Commercial Taxes v.  M\/s.  Caltex  (India)
\nLtd., AIR 1962 Mad 298 and, there
\n\t\t\t\t\t\t       278<\/span>
\ncan  be\t no  smuggling thereafter.  Even if  the  goods\t are
\nclandestinely removed from the bonded warehouse there is  no
\nescapement of duty since the duty is adequately\t safeguarded
\nby a bond for double the amount of duty with which the goods
\nare  chargeable.  The only remedy of the Department in\tsuch
\ncases  is the recovery of the duties etc. under s.72 and  no
\nconfiscation  of  the goods is permissible  in\tsuch  cases.
\nIndeed, there can be no confiscation of goods once they\t are
\ncleared\t from  the customs area under s.47,  vide  Union  of
\nIndia  v.  Jain\t Sudh  Vanaspathi  Ltd.,<\/a>  1992-1  Scale\t  34
\naffirming  10  E.L.T.  43 (Del.).  In  the  light  of  these
\nconcepts  he  urges that the scope of s.111  (j)  should  be
\nrestricted  to\tgoods which are dutiable and in\t respect  of
\nwhich  no  duty has been assessed and their removal  from  a
\nwarehouse where they are lodged pending assessment of duty.\n<\/p>\n
     We\t are  of  the opinion  that,  interesting  as  these
\narguments are, they cannot be accepted.\t The  interpretation
\nsought to be placed by counsel on the provision contained in
\ns.111(j)  is  unduly  narrow and  imports,  into  the  clear
\nlanguage  thereof,  words that are not there.  There  is  no
\njustification  to  restrict “dutiable  goods”  to  “dutiable
\ngoods  not  yet\t assessed to  duty”.   The  suggestion\tthat
\n“warehouse”  referred to in the clause should be  understood
\nto  mean a warehouse to which goods are removed\t under\ts.49
\nbut not one to which goods are taken in pursuance of s.59 is
\nwithout\t basis\tand  ignores the  wide\tdefinition  of\tthat
\nexpression set out in s.2(43) of the Customs Act.\n<\/p>\n
     Sri  Sen has urged three considerations in\t support  of
\nhis plea to limit the scope of s.111(j) as urged by him. The
\nfirst  is that the operation  of ‘import’ is concluded\tonce
\nthe goods are assessed to customs duty and cleared from\t the
\ncustoms\t area  and the concept of ‘smuggling’  can  have  no
\nmeaning\t in respect of such goods thereafter.  This  is\t not
\nquite  correct.\t  Even\tthe  general  concept  of  smuggling
\ncontains two elements: one, the bringing into India of goods
\nthe  import of which is prohibited; and two,  the  bringing,
\ninto  the  country’s trade stream, of goods  the  import  of
\nwhich  is permitted without paying the customs\tduties\twith
\nwhich  they  are  chargeable.\tIn  our\t view,\tthe   second
\neventuality can occur not only where there is a\t clandestine
\nimport\tevading the assessment of duty but also where  there
\nis  a  clandestine removal without payment of  the  assessed
\nduty.\tIn a case where the goods are warehoused under\ts.49
\nand   they  are\t clandestinely\tremoved,  there\t  would\t  be
\n‘smuggling’  as the duties payable thereon have been  evaded
\naltogether.  But even in a case where the goods are assessed
\nto  duty  and  allowed\tto  be\twarehoused  under  s.59,   a
\nclandestine removal can result in
\n\t\t\t\t\t\t       279<\/span>
\nloss  of duty.\tNo doubt, there is a provision in  s.72\t for
\ncollection of the duty and forfeiture of the bond  furnished
\nto  secure due payment of duty but these may not  always  be
\nadequate cover to the Revenue if the goods are spirited away
\nwithout permission.  The mere fact that the goods have\tbeen
\nostensibly cleared, after asessment of duty, to a  warehouse
\ndoes  not  preclude  the applicability\tof  the\t concept  of
\nsmuggling  even in such a case.\t In a sense, import  may  be
\nsaid  to  be complete for certain purposes  say,  sales\t tax
\npurposes  as in Dy. C.C.T. v. Caltex (India) Ltd., AIR<\/a>\t1962
\nMad 298 on their clearance after assessment of duties at the
\ncustoms barrier but it is not complete in a real sense. Even
\nthe  warehouse,\t to  which the goods  are  permitted  to  be
\nremoved\t under s.59 is a premises under the lock and key  of
\nthe customs authorities and is, in a sense, an extention  of
\nthe  customs area.  Goods can be cleared therefrom for\thome
\nconsumption  or\t exportation only after payment\t of  duties.
\nTill  that is done, there is always the risk of the loss  to
\nthe  State of the duties payable.  So import cannot said  to
\nbe  complete till then from the point of view with which  we
\nare  concerned.\t There is no reason why we should read\tdown
\ns.111(j) which only recognises this position.\n<\/p>\n
     The  second point made by Sri Sen is that\twhere  goods
\nare removed from a warehouse in which they are lodged  under
\ns.59  without  permission of the concerned  authorities\t the
\nonly  consequence  that\t can follow is\taction\tunder  s.72.
\nAccording  to  him, in such cases, there can be no  levy  of
\npenalty under s.125 and the goods removed without permission
\nare not liable to confiscation.\t  He urges that a provision,
\nfor  the contravention of which there can be no\t penalty  or
\nconfiscation,  should  not  be so  read\t as  justifying\t the
\ndraconian remedy of preventive detention.  In support of his
\ncontentions  on\t this  part of\tthe  case,  learned  counsel
\nstrongly   relied   on\tthe  decision  of  this\t  Court\t  in
\nShewpujanrai Indrasanrai Ltd. v. The Collector of Customs  &
\nOrs.,<\/a> [1959] S.C.R. 821.  We are unable to see any force  in
\nthis  contention.   The\t consequences  which  follow  on   a
\nparticular  act\t or omission will depend  on  the  statutory
\nprovisions in question.\t It may be that the petitioner’s act
\nin the present case may not have attracted s.125 as it stood
\nearlier\t but will now attract a penalty in view of  s.125(2)
\ninserted  w.e.f. 27.12.1985.  It may also attract  s.72\t but
\nthis cannot, however, be decisive  of the interpretation  of
\ns.111  (j).   In the decision referred to by  counsel  which
\narose  under the Sea Customs Act, 1878 smuggled\t goods\twere
\nconfiscated  and, in addition, the smuggler was called\tupon
\nto  pay\t the duties on the goods.  The Court held  that\t the
\nquestion  of a levy of import duties did not arise as  there
\nwas
\n\t\t\t\t\t\t       280<\/span>
\nno  statutory  provision  covering the facts  of  that\tcase
\nenabling  such levy.  This decision is no authority for\t the
\nproposition that s.111(j) is inapplicable to a case to which
\ns.72 is applicable.  Even if one assumes that s.72 will\t not
\nbe  applicable where the goods are confiscated the  position
\nonly  comes  to this, that the authorities have\t to  choose,
\nhaving regard to all the circumstances, between confiscating
\nthe  goods on the one hand or collecting the duties  payable
\nthereon\t on  the other.\t Having regard to  the\tlanguage  of
\ns.111(j), it is not possible to agree with counsel that,  in
\nsuch a case, the goods are not liable to confiscation merely
\nbecause\t an  alternative recourse to s.72  is  available  to
\nthem.\n<\/p>\n
     The third point made by Sri Sen is that once goods\t are
\ncleared\t by the customs authorities, they are not liable  to
\nconfiscation unless the order granting clearance is reversed
\nin  appropriate\t proceedings.  He places reliance  for\tthis
\nproposition on Union of India v. Jain Shudh Vanaspathi,<\/a>(1992\n<\/p>\n
– 1 Scale 34) affirming the decision of the Delhi High Court
\nin  Jain  Shudh Vanaspati Ltd. & Anr. v. Union\tof  India  &
\nOrs.,<\/a>  [1982] 10 E.L.T. 43 (Del.) (to which one of us was  a
\nparty).\t  There was some discussion before us as to  whether
\nthis  Court has confirmed the decision of the High Court  on
\nthe  above point or left it open in para 4 of the  judgment.
\nWe  do\tnot think it is necessary for for us to\t enter\tinto
\nthis controversy.  That was a case where the goods had\tbeen
\ncompletely  cleared accepting the plea of the importer\tthat
\ntheir  import was not prohibited.  The High Court held\tthat
\nso  long as this acceptance stood the goods were not  liable
\nto  confiscation.  We are here concerned with  the  question
\nwhether the goods are liable to confiscation under  s.111(j)
\nand  this question has to be answered in the affirmative  in
\nview  of the language of the section.  The  conclusion\there
\nthat the goods are liable to confiscation does not go behind
\nor  ignore the effect of the order of clearance, as in\tthat
\ncase.  It accepts the fact of clearance and proceeds on\t the
\nfooting\t that  the goods, rightly cleared under\t s.59,\thave
\nbeen  clandestinely  removed from the warehouse\t within\t the
\nmeaning of s.59.  The decision cited by learned counsel\t is,
\ntherefore, of no assistance to him.\n<\/p>\n
     The  upshot  of the above discussion is  that,  on\t the
\nconspectus of facts placed before the Court and referred  to
\nearlier,  the  activity\t of  the  company  would  amount  to
\nsmuggling  and\tthat  of  the  petitioner  to  abetment\t  of
\nsmuggling,  if\tthey had removed, or caused or\tabetted\t the
\nremoval\t of the goods from the bonded warehouse without\t the
\npermission of the concerned
\n\t\t\t\t\t\t       281<\/span>
\nauthorities.  The order of detention proposed cannot be said
\nto  proceed on a basis totally extraneous to the  provisions
\nof  the\t Act and cannot be described as an  order  not\tmade
\nunder the Act under which it is purportedly made nor can  it
\nbe said that the grounds of detention are vague,  irrelevant
\nor extraneous to the purpose or provisions of the Act.\n<\/p>\n
     In\t the result, we uphold the orders of the High  Court
\ndismissing  the\t writ petition though we do not\t uphold\t the
\nreasoning of the Division Bench.  The special leave petition
\nis, accodingly, dismissed but with no order regarding costs.\n<\/p>\n
N.P.V.\t\t\t\t\t Petition dismissed.\n\t\t\t\t\t\t       282<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N.K. Bapna vs Union Of India And Ors on 14 May, 1992 Equivalent citations: 1992 SCR (3) 267, 1992 SCC (3) 512 Author: S Rangnathan Bench: Rangnathan, S. PETITIONER: N.K. BAPNA Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT14\/05\/1992 BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. RAMASWAMI, V. (J) II […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-229228","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN.K. 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