{"id":90235,"date":"2004-09-03T00:00:00","date_gmt":"2004-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamalam-vs-state-of-tamil-nadu-on-3-september-2004"},"modified":"2017-08-28T04:23:30","modified_gmt":"2017-08-27T22:53:30","slug":"kamalam-vs-state-of-tamil-nadu-on-3-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamalam-vs-state-of-tamil-nadu-on-3-september-2004","title":{"rendered":"Kamalam vs State Of Tamil Nadu on 3 September, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Kamalam vs State Of Tamil Nadu on 3 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 03\/09\/2004\n\nCoram\n\nThe Hon'ble Mr. Justice P. SATHASIVAM\nand\nThe Hon'ble Mr. Justice M. CHOCKALINGAM\n\nHabeas Corpus Petition No. 526 of 2004\n\nKamalam,\nW\/o. Ramalingam Subramaniam,\n770\/C1 East Third Street,\nPudukottai.\n\n                                  .. Petitioner.\n\n-Vs-\n\n1. State of Tamil Nadu,\n   represented by Secretary, Public (SC)\n   Department, Fort St. George,\n   Chennai-600 009.\n\n2. Union of India,\n   represented by Secretary to Government,\n   Ministry of Finance, Department of\n   Revenue, COFEPOSA Unit, New Delhi-110 001.\n\n                                  .. Respondents.\n\n\nPetition is filed under Article 226 of the Constitution of India, for issuance\nof a Writ of Habeas Corpus, calling for the  records  of  the  1st  respondent\nconnected with  order  in  GO.No.   SR.1\/182-9 \/2004 dated 2-3-2004, quash the\nsame and set at liberty the detenu Ramalingam Subramanian, son of  Ramalingam,\nnow detained in Central Prison, Trichy under the provisions of Conservation of\nForeign Exchange and Prevention of Smuggling Activities Act.\n\n!For petitioner:   Mr.  B.  Kumar, Senior counsel\n                  for Mr.  A.  Anwar Ali.\n\n^For respondents:  Mr.  Abudukumar Rajarathinam,\n                  Govt.  Advocate (Crl.Side)for R1.\n\n                  Mrs.  Vanathi Srinivasan,\n                  ACGSC for R-2.\n\n:ORDER\n<\/pre>\n
(Order of Court was delivered by P.  Sathasivam, J.,)<\/p>\n
Petitioner  is the wife of the detenu who was detained under Section 3 (1) (i)
\nof the Conservation of Foreign Exchange and Prevention of Smuggling Activities
\nAct (in short “COFEPOSA Act”) ( Central  Act  52  of  1974)  by  the  impugned
\nproceedings dated  02-03-2004.   The said order came to be passed by the first
\nrespondent with a view to prevent the detenu Ramalingam  Subramanian  residing
\nat No.770\/C1, East Third Street, Pudukottai from smuggling goods in future.\n<\/p>\n
2.  Heard Mr.    B.   Kumar, learned senior counsel for the petitioner and Mr.
\nAbudukumar Rajarathinam, learned Government Advocate, for first respondent  as
\nwell as  Mrs.    Vanathi  Srinivasan,  learned  Additional  Central Government
\nStanding counsel for second respondent.\n<\/p>\n
3.  After taking us through the grounds of detention and other materials,  Mr.
\nB.  Kuamr, learned senior counsel, has submitted that from the materials there
\nis no  contravention of Customs Act at all to pass the order of detention.  He
\nfurther contended that as per the Customs Act, 1962, a  passenger  who  brings
\ncertain  goods has the right to abandon the goods thereby avoid the payment of
\nduty and clearance of the goods, hence  there  cannot  be  an  application  of
\nsection 77  or  section  111(d),  (l)  and (m).  He further contended that the
\ndetaining authority has ignored and not taken into consideration  the  finding
\nrendered in the order of bail granted to the detenu by the Court of Additional
\nChief Metropolitan  Magistrate,  Economic  Offences, Chennai.  In the light of
\nthe conclusion of the learned Magistrate, it will not  amount  to  an  offence
\nunder Section 132 or 135 of the Customs act.  According to the senior counsel,
\nthe  detaining authority is not alive to the factum of specific finding in the
\nbail order, thus there is total non-application of mind on a factor which is a
\njudicial order and it is binding on  the  Government.    On  the  other  hand,
\nlearned  Government  Advocate, after taking us through the relevant provisions
\nof the Customs Act and COFEPOSA Act, 1974, would submit that inasmuch  as  the
\ndetenu  was  very  well  aware  and  brought  out dutiable goods and liable to
\nproceed under Section 135 (1)(b) of the Act, the detaining authority is  fully
\njustified in passing the order of detention.\n<\/p>\n
4.  We have carefully considered the rival submissions.\n<\/p>\n
5.   It  is  seen  from the grounds of detention that on 12 -1-2004 three bags
\nwithout any baggage tag were found kept in a trolley near  the  Conveyor  belt
\nNo.4,  un-attended, after all the passengers arrived by Indian Airlines flight
\nNo.1C 566 had left the arrival hall of the Anna International Terminal.  Since
\nno one came forward to claim the ownership of the same, all the  three  pieces
\nof  the  baggage were opened and examined by the Customs Intelligence officers
\none by one in the presence of witnesses.  The first bag found to  contain  one
\nIndian Passport  bearing additional booklet No.  Z 1542966 issued at Singapore
\non 8-7-2002 to one Ramalingam Subramanian, resident of 485, Indira  Nagar,  II
\nStreet, Pudukottai,  Tamil Nadu.  Inside the passport, one Customs Declaration
\nCard duly signed, with the particulars of Flight  No.    as  IC  556  name  as
\nRamalingam  Subramanian,  number of packages as 3, checked-in baggage as 2 and
\nhand baggage as 1 having been filled up, but leaving the value of the dutiable
\ngoods being imported blank was found.  In  another  bag  one  Indian  Airlines
\nflight  ticket  No.91429 7556 6 issued in the name of Subramanian R along with
\nClaim Tags No.  SQ 177329 and SQ 177329 bearing the name of Subramanian R were
\nalso recovered.  On further examination, it was found to contain 20 Nos.    of
\nNokia Cellphones with  batteries and adopters (Model No.  3100) and 3 Nos.  of
\nPioneer Car Stereo DEH 2650.  Then the multi colour Zipper  bag  with  baggage
\ntag No.   SQ  177328  was examined in the presence of witnesses and 4 Nos.  of
\nSony Handycam DCR TRV 228E with accessories and 9 Nos.  of Pioneer Car  Stereo
\nDEH 5550  were  recovered from it.  Thereafter, one white coloured Martel VSOP
\ncard board carton without any baggage  tag  was  opened  in  the  presence  of
\nwitnesses and  18 Nos.  of Pioneer Car Stereo DEH 3550 were recovered from it.
\nSince the aforesaid goods were not accompanied by any documents, the same were
\nseized along with the baggage under a mahazar for further action under Customs
\nAct, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 on  a
\nreasonable belief  that  they  were  attempted to be smuggled into India.  The
\nsaid Ramalingam Subramanian was informed about the  same.    Pursuant  to  the
\nsame,  he  made a voluntary statement before the Intelligence Officer, Customs
\nHouse, Chennai-1 on 21-01-2004 wherein it is stated that while returning  from
\nSingapore on 12-01-2004 he bought clothes and packed them in a polythene cover
\nfor  his  wife  and  his family members and reached Singapore Airport, that an
\nun-known person approached him at Singapore Airport and introduced himself  as
\na  baggage broker and showed him three baggages and requested him to carry the
\nsame and hand over the same to a person who would identify him outside Chennai
\nAirport, for which he would be paid 250 Singapore Dollars at Singapore Airport
\nitself.  He further stated that at Chennai Airport, after collecting  his  two
\nchecked-in  baggages  and  along  with  his hand bag he tried to go out of the
\nAirport, but since he did not know the contents of the three baggages given by
\nthe unknown person at Singapore Airport, he decided to abandon the same at the
\narrival hall of the Airport itself, that he took his clothes and came  out  of
\nthe Chennai  Airport  and left for Pudukottai.  Based on the materials, he was
\narrested on 22-1-2004 and produced before the  Additional  Chief  Metropolitan
\nMagistrate,  E.O.II,  Egmore,  Chennai and he was remanded to judicial custody
\ntill 5-2-2004.  A  telegram  was  also  sent  to  his  wife  on  23  -01-2004,
\nintimating his   arrest  and  remand.    From  the  available  materials,  the
\ndepartment came to the conclusion that the electronic goods in trade  quantity
\nwere  brought  by  him with his knowledge and abandoned them at the airport to
\nevade customs duty and had rendered liable for confiscation under Section  111\n<\/p>\n
(d)  (l) and (m) of the Customs Act, 1962 read with Foreign Trade (Development
\nand Regulation) Act, 1992 and for not making a true declaration to the customs
\nauthorities as required under section 77 of the Customs Act,  1962.    He  has
\ncommitted  an  offence  punishable  under  Sections 132, 135 and also rendered
\nhimself liable for penal action under section 112.  The State Government  from
\nthe  materials  after  satisfying  that  he  has  indulged  in smuggling goods
\ndetained him under the provisions of COFEPOSA Act, 1974 with a view to prevent
\nhim from smuggling of goods in future.\n<\/p>\n
6.  By drawing our attention to Section  23  (2)  of  the  Customs  Act,  1962
\n(hereinafter referred to as “the Act”), Mr.  B.  Kumar, learned senior counsel
\nfor  the  petitioner,  submitted that the detenu is entitled to relinquish his
\ntitle to the goods or abandon the same and in  that  event  he  shall  not  be
\nliable to pay the duty thereon.  The relevant provision reads as under:-\n<\/p>\n
“Section  23  (2)  The  owner  of any imported goods may at any time before an
\norder for clearance of the goods for home consumption under section 47  or  an
\norder  for permitting the deposit of goods in a warehouse under section 60 has
\nbeen made, relinquish his title to the goods and thereupon  he  shall  not  be
\nliable to pay the duty thereon.”\n<\/p>\n
Section 47  speaks  about clearance of goods for home consumption.  It is seen
\nthat if the officer is satisfied that the goods entered for  home  consumption
\nare  not  prohibited goods and the importer has paid the import duty, assessed
\nthereon and any charges paid under the Act, the  officer  may  pass  an  order
\npermitting clearance  of  the  goods  for home consumption.  Section 48 speaks
\nabout procedure in case of goods not cleared, warehoused or transhipped within
\n30 days after unloading.  Section  77  relates  to  declaration  by  owner  of
\nbaggage as under:-\n<\/p>\n
“Section 77.  Declaration by owner of baggage
\nThe  owner  of  any  baggage  shall,  for  the  purpose of clearing it, make a
\ndeclaration of its contents to the proper officer.”\n<\/p>\n
Section 80 refers to temporary detention of baggage:\n<\/p>\n
“Section 80.  Temporary detention of baggage
\nWhere the baggage of a passenger contains any article which is dutiable or the
\nimport of which is prohibited and in respect of which a tirue declaration  has
\nbeen  made  under  section  77,  the proper officer may, at the request of the
\npassenger, detain such article for the purpose of being returned to him on his
\nleaving India and if for any reason, the passenger is not able to collect  the
\narticle  at  the time of his leaving India, the article may be returned to him
\nthrough any other passenger authorised by him and leaving India  or  as  cargo
\nconsigned in his name.”\n<\/p>\n
Section  111  speaks  about  confiscation  of  improperly imported goods, etc.
\nAmong various clauses (d) (l) and (m) are relevant.  Section 113 speaks  about
\nconfiscation  of goods attempted to be improperly exported, etc., which we are
\nnot concerned in this case.   Section  135  relates  to  evasion  of  duty  or
\nprohibitions.\n<\/p>\n
“Section  135 (1) Without prejudice to any action that may be taken under this
\nAct, if any person-\n<\/p>\n
(a) is in relation to  any  goods  in  any  way  knowingly  concerned  in  any
\nfraudulent  evasion or attempt at evasion of any duty chargeable thereon or of
\nany prohibition for the time being imposed under this act or any other law for
\nthe time being in force with respect to such goods, or\n<\/p>\n
(b) acquires possession of or is in any way concerned in  carrying,  removing,
\ndepositing,  harbouring,  keeping, concealing, selling or purchasing or in any
\nother manner dealing with any goods which he knows or has reasons  to  believe
\nare liable to confiscation under section 111,he shall be punishable….”\n<\/p>\n
7.  The analysis of the above statutory provisions make it clear that even for
\nhuman consumption if the goods imported are not prohibited goods on payment of
\nimport  duty, if any, and after payment of necessary charges in respect of the
\nsame, the proper officer is empowered to pass an order permitting clearance of
\ngoods.  Though sub-section (2) of Section 23 enables the owner of the imported
\ngoods to relinquish his title to save duty,  the  said  provision  is  not  an
\nabsolute one,  but  subject  to other conditions.  We have already referred to
\nSection 77 of the Act which enables  the  owner  of  any  baggage  to  make  a
\ndeclaration  of its contents to the proper officer for the purpose of clearing
\nthe same.  Though the detenu had left the said three baggages without clearing
\nthe same before the proper officer, his voluntary statement given  before  the
\nofficer,  Customs  House, Chennai-1 and the materials available from the three
\nbaggages would show that he undertook to deliver the said bags from a  baggage
\nbroker  at  Singapore  airport  with  an  assurance that on handing over the 3
\nbaggages to a person who would identify him outside Chennai airport, he  would
\nbe  paid  250  Singapore  dollars  at  Singapore  airport  itself  and on that
\nunderstanding\/assurance, he checked in all the 3 baggage along with  his  hand
\nbaggage.   It  is  further  seen  that  in the baggage it was found one Indian
\npassport issued at Singapore on 8-7-2002 to the detenu Ramalingam  Subramanian
\nand  also  contained  customs declaration card duly signed with particulars of
\nflight No.  as IC 556 in the  name  of  Ramalingam  Subramanian  stating  that
\nnumber  of packages as 3, checked in baggage as 2 and hand baggage as 1 having
\nbeen filled up, but leaving the value of the  dutiable  goods  being  imported
\nblank was  found.    Apart  from  the  same,  the baggage was found to contain
\nseveral other trade materials as referred to in clause (ii) of the grounds  of
\ndetention.   It  is  also  seen  from  the materials furnished that cases were
\nregistered against the detenu twice during 2002 for bringing  goods  violating
\nCustoms Act to  the  tune  of Rs.  4 Lakhs.  All the above materials show that
\nthe detenu was aware  that  the  materials  inside  the  baggages  were  trade
\narticles  entrusted  by  a  baggage broker at Singapore to be handed over to a
\nperson at Chennai Airport.  Though the above articles are not prohibited  one,
\nthe  same  are  dutiable  and in the event of nonpayment of duty, the same are
\nliable for confiscation under Section 111 (d) (l) and (m) of the Customs  Act,
\n1962  read  with Foreign Trade ( Development and Regulation) Act, 1992 and for
\nnot making a true declaration to the customs  authorities  as  required  under
\nSection 77 of the Act.\n<\/p>\n
8.  The relevant provisions referred to above also show that the procedure for
\ncustoms  clearance  applied  for  goods  for human consumption under a bill of
\nentry and passengers accompanied baggage need to be  necessarily  declared  to
\nthe  customs  properly  though an option to clear or not on payment of duty is
\navailable to the passengers.  In other words, as rightly argued by the learned
\nGovernment Advocate, a passenger cannot abandon the goods as a matter of right
\nand leave the Airport without informing or  declaring  to  the  customs.    As
\nobserved earlier, though the goods are not prohibited, they were not any trade
\nquantity and  were  seized  by  the  Customs  Officers for nondeclaration.  As
\nstated earlier, in the statement given by the detenu  on  21-01-2004,  he  had
\ncategorically stated that he brought 3 baggages given by a broker at Singapore
\nAirport, abandoned them at Chennai Airport along with his passport and that he
\ndid not pay any customs duty.  From the materials, we are of the view that the
\ndetaining  authority  is  right  in holding that the electronic goods in trade
\nquantity were brought by the detenu with his knowledge a nd abandoned them  at
\nthe  Airport  to evade customs duty; hence the contrary contentions raised are
\nliable to be rejected.  The claim that no material  was  shown  to  show  that
\nthere  is  no  contravention  of Customs Act and to pass an order of detention
\ncannot be accepted; accordingly we reject the first contention.\n<\/p>\n
9.  Coming to the second contention, namely, nonconsideration of  the  finding
\nin  the  bail  order  passed  by the Additional Chief Metropolitan Magistrate,
\nEconomic  Offences-II,  Chennai,  we  have  perused  the  bail   order   dated
\n11-02-2004.   First  of  all,  the  said  order  is  not with reference to any
\nadjudication proceedings, but it relates to the claim of the  accused  whether
\nhe is  entitled  for  bail  or  not.    In  the  said application, the learned
\nAdditional Chief Metropolitan Magistrate has rendered a finding to the  effect
\nthat the accused had never mis-declared the goods or nature of goods or nature
\nof valuation.    Further,  on the premise when the accused did not declare the
\nvalue of the goods brought by them, the question of valuation of goods in  the
\nR.R is not sustainable, he granted bail in favour of the accused.  The learned
\nJudge  has  also  relied  on  a judgement of the Bombay High Court in State of
\nMaharashtra vs.  Anil Bhagchand Jain, reported in 1990 (47) 250 (Bombay) which
\nis also not applicable to the case on hand.  We have  already  observed  about
\nthe  voluntary  statement  of  the  detenu  before the officers of the Customs
\nDepartment regarding receipt of 3 baggages from a baggage broker at  Singapore
\nto be  delivered  to  a  person at Chennai Airport.  We also observed that the
\ndetenu was aware of the fact that he carried dutiable goods and in  the  event
\nof non-declaration\/non-payment of duty, the goods are liable for confiscation.
\nIn  such  a circumstance, the finding rendered in the order of bail granted to
\nthe detenu is not supported by legal authority and it is not incumbent on  the
\npart  of  the detaining authority to consider the same while passing the order
\nof detention.  Further, it is also relevant to note that  before  the  learned
\nAdditional Chief Metropolitan Magistrate it was stated that the detenu did not
\nknow the  details  of  the goods available in the baggages.  The learned Judge
\nhas also observed that after collecting two checked up baggages and hand  bag,
\nthe  detenu  left the airport because nobody has approached him at the airport
\nfor receiving the 3 baggages  which  were  given  by  the  unknown  person  at
\nSingapore.   However,  as  rightly  pointed  out  in  his representation dated
\n31-01-2004 he had stated that on 12-01-2004 he arrived at Chennai  airport  by
\nflight  IC 556 and due to continuous stomach pain he was forced to abandon his
\nbaggage at airport and he left the airport.  He had also stated  that  out  of
\nthe  items listed by the officers as his goods few items did not belong to him
\nand other items were over valued and requested for revaluation.  For this, the
\nCustoms Department in their reply dated 12-02-2004 had stated that the  entire
\ngoods  were recovered from his baggage only and that the values adopted are in
\ntune with the valuation adopted for same models during the period  in  Chennai
\nand other  Airports.    In  such  a  circumstance, we are of the view that the
\ndetaining authority has not committed any error in not considering the finding
\nrendered  by  the  learned  Additional  Chief  Metropolitan  Magistrate  while
\ngranting bail in favour of the detenu.\n<\/p>\n
10.   From  the materials placed, the detaining authority is right in arriving
\nat a conclusion that the electronic goods in trade quantity  were  brought  by
\nthe  detenu  with  his  knowledge  and  abandoned them at the airport to evade
\nCustoms Duty.  We also satisfied that the detaining authority has not violated
\nany of the statutory provisions while passing the order of detention.   It  is
\nalso  brought to our notice that the representation of the detenu’s wife dated
\n16-3-2004 was also properly considered and disposed of on 29-3-2004.   We  are
\nsatisfied   that   in   the   light  of  the  four  Government  holidays,  the
\nrepresentation was properly considered and disposed of within 9 days and there
\nwas no delay in considering the same.  The department has also explained  that
\nthe  value  adopted  by the Customs are in tune with the valuation adopted for
\nthe same models during the period in Chennai and other Airports.\n<\/p>\n
11.   Under  these  circumstances,  we  do  not  find  any  valid  ground  for
\ninterference; accordingly the petition fails and the same is dismissed.\n<\/p>\n
R.B.\n<\/p>\n
Index   : Yes.\n<\/p>\n
Internet: Yes.\n<\/p>\n
To:-\n<\/p>\n
1.  The Secretary to Government,
\nPublic (SC) Department, Fort St.  George,
\nChennai-600 009.\n<\/p>\n
2.  The Secretary to Union of India,
\nMinistry of Finance, Department of
\nRevenue, COFEPOSA Unit, New Delhi-110 001.\n<\/p>\n
3.  The Public Prosecutor, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kamalam vs State Of Tamil Nadu on 3 September, 2004 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. […]<\/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":[8,13],"tags":[],"class_list":["post-90235","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKamalam vs State Of Tamil Nadu on 3 September, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kamalam-vs-state-of-tamil-nadu-on-3-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamalam vs State Of Tamil Nadu on 3 September, 2004 - 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