Madras High Court
Varadarasu Ramraj vs The State Of Tamil Nadu Rep. By Secretary ... on 20 April, 2007
Author: P.K. Misra
Bench: P.K. Misra, J.A.K. Sampath Kumar
ORDER P.K. Misra, J.
1. Heard Mr. B. Kumar, learned Senior Counsel for the petitioner and Mr. Babu Muthu Meeran, learned Additional Public Prosecutor for the respondents.
2. The Order of detent under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, [in short, 'the COFEPOSA Act'], is in question. Certain facts which are not in dispute may be first narrated in order to appreciate the questions involved in the present HCP.
3. The detenu, Varadarasu Ramaraj, is admittedly a person of Indian origin and previously he was a Indian citizen. Subsequently, about 24 years ago, he went to France and obtained citizenship of France. On 19.09.2006, the detenu came from France and landed at Chennai Airport. He proceeded to green channel and declared that he has only 50 Euros with him. However, customs authorities intercepted him on suspicion and it was discovered that he had with him 307 gold coins weighing 8 grams each and one gold coin weighing 40 grams. It also appears that he had 6650 Euro Currencies, equivalent to Rs. 3,81,045/- in Indian currency. He had also twelve cell phones with him. As per the grounds of detention, the statement of the detenu was recorded on 20.09.2006, on which date he was arrested and remanded to judicial custody. Para Subsequently, an Order of preventive detention was passed on 09.11.2006. In the grounds of detention, it was indicated inter alia that the detenu had mis-declared the contents of his baggage and he has attempted to smuggle 308 gold coins weighing 2496 grams. It was further indicated in paragraph No. IX to the following effect:
...that the eligibility to import gold becomes applicable only when the passenger declares the gold to the Customs oh arrival and that you had last visited India during May, 2006 and left India by 12th June, 2006, thus; you had not stayed abroad for the stipulated period of six months to be eligible to import gold under the concessional rate of duty.
4. Similarly in paragraph No. xi, it is noticed that the detenu had sent a representation dated 26.10.2006 to Customs Department stating that he was a foreign citizen and was ready to pay duty on gold coins. But the Customs Officers did not pay any heed and remanded the detenu to judicial custody and that detenu had brought the gold coins only for the purpose of marriage of his daughter and that he was willing to pay the necessary customs duty. In paragraph No. 11, it was further stated as under:
The Commissioner of Customs, Chennai in his reply dated 2.11.2006 sent to you has stated inter alia that you declared the value of goods imported by you as 50 Euros only and did not declare the gold in the Customs declaration card; that you did not declare the gold and currency even when you were questioned before the mahazar witnesses; that the eligibility to import gold becomes applicable only when the passenger declares the gold to the Customs on arrival and that you had last visited India during May, 2006 and left India by 12th June, 2006, thus you had not stayed abroad for the stipulated period of six months to be eligible to import gold under the concessional rate of duty.
5. In paragraph No. 5 of the grounds of detention, it was further stated as follows:
5. The State Government are also aware that bail Petitions were filed on your behalf and they were dismissed. Further, the state Government are also aware that you are likely to file another Petition for bail and there is likelihood of you being released on bail. In view of the facts and circumstances set out above, the State Government are satisfied that there is real possibility of you coming out on bail and there is likelihood of your indulging in such prejudicial activities again while on bail and there is a compelling necessity to prevent you from smuggling of goods. The State Government, therefore, considers that it is necessary to detain you under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Ultimately, the Detaining Authority came to the conclusion that it was necessary to detain the detenu to prevent him from indulging in smuggling of goods in future.
6. In the above background, the learned Senior Counsel for the petitioner has raised the contention that since the detenu was a person of Indian origin, but a citizen of France, as per the liberalized rules relating to import of gold and silver, he could have imported certain quantity gold by paying duty at concessional rates and its detaining authority by misconstruing the relevant provision came to the conclusion that the defence had not stayed aboard for six months and thereafter 1st eligible to import gold under concessional rate of duty. This indicates non application.
7. In order to appreciate the contention of the learned Senior Counsel for the petitioner, the notification dated 01.11.1994 is extracted there under:
Concessional Duty on Import of gold as Baggage:
The Central Government has allowed import of gold, in any form including ornaments (but excluding ornaments studded with stones or pearls), by an eligible passenger, at a concessional duty of [Rs. 250] per ten grams, subject to the following conditions, namely:
(a) the duty at the rate specified above shall be paid in convertible foreign currency;
(b) the quantity of such gold shall not exceed [ten kilograms] per eligible passenger; and
(c) the gold is either carried by the eligible passenger at the time of his arrival in India or is imported by him within fifteen days of his arrival in India.
Notwithstanding anything contained above, the exemption under this notification shall also apply to gold taken delivery of by an eligible passenger from a customs bonded warehouses of the State Bank of India or the Minerals and Metals Trading Corporation Limited, subject to the conditions (a) and (b) above and subject to further condition that such eligible passenger files a declaration in the prescribed form before the proper officer of customs at the time of his arrival in India declaring his intention to take delivery of the gold from such a customs bonded warehouse and pays the duty leviable thereon before his clearance from customs.
Explanation For the purposes of this notification, "eligible passenger" means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967 (15 of 1967). who is coming to India after a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits does not exceed thirty days and such passenger has not availed of the exemption under this notification at any time of such short visits.
8. It is admitted by the learned Counsel that in the present case, the detenu had brought gold during his visit on 19.09.2006. Before that, he had come to India for a few days during the month of January, 2006 and thereafter for a few days during the month of May, 2006 and the total period of such stay during the previous visits was less than 30 days and therefore, in the view of explanation such period of the detenu was eligible to bring gold as part of his baggage, on payment of concessional duty, as contemplated. But the customs officials as well as the Detaining Authority, on a wrong interpretation, have opined that the detenu was not eligible to bring gold, as he had visited India within six months from the date of arrival, as he had come to India during the months of January as well as May, 2006.
9. We have carefully gone through the notification. A fair reading of the notification makes it clear that a eligible passenger can bring gold as part of the baggage by paying concessional duty, provided the duty at the rate specified shall be paid in convertible foreign currency; the quantity of such gold shall not, exceed [ten kilograms] per eligible passenger; and the gold is either carried by the eligible passenger at the time of his arrival in India or is imported by him within fifteen days of his arrival in India. As per the explanation, an "eligible passenger" means a passenger of Indian origin, who is coming to India after a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits does not exceed thirty days and such passenger has not availed of the exemption under this notification at any time of such short visits. In the present case, gold was brought on 19.09.2006. Therefore, the visit of India during month of January, 2006, which was beyond the passenger of Indian origin came to India after a period of six months, he would be eligible to do so. In other words, if he has visited India for a short time and total duration of such visits did not exceed thirty days, it can be taken that he came to India after a period of six months and, therefore, eligible. It is also required that during any such short visit, he should not have availed of such facility. Applying these tests to the present case, we have to find out whether the passenger, who came to India on 19.09.2006 was eligible, as he had come to India after a gap of six months. Similarly, even if he came to India after 9th March 2006, if such visit was for a period less than thirty days, such duration would be ignored and it will be still held that he was eligible. The question might arise, if a person makes frequent visits during six months whether he would be considered eligible. The language used in the explanation is that the total duration of stay during such visit does not exceed thirty days. Therefore, if a person has visited India almost every month, but the total duration of all such visits together does not exceed thirty days, such person may be eligible. At any rate, in the present case, during the last six months before 19.10.2006, he had visited India only during the month of May, 2006 and the duration of such visit was only ten days. Therefore, he was eligible. It is also to be noticed that he had not availed of such facility during the last visit during May, 2006. In such view of the matter, it is obvious that person was otherwise eligible. However, Customs Authorities as well as the Detaining Authority have come to the conclusion that since he had visited India, during the month of May, 2006 and he was visiting India within a period of six months, he was not eligible. The customs officers and the Detaining Authority have thereby completely ignored the explanation. According to the learned Counsel for the petitioner, this would amount to non-application of mind. For the aforesaid purpose, the learned Counsel relied upon the decision of the Supreme Court reported in AIR 1975 SC 550 Kudhiram's case [at paragraph No. 9], regarding non application of mind relating to the relevant provisions of the notification.
10. The learned Counsel for the State however submits that in order to be eligible, a person should have declared gold and then only one can claim eligibility and in the present case, detenu had not declared about his bringing of 308 gold coins. In the present case, Detaining Authority has referred to both aspects viz., the detenu has not declared about his bringing gold and had also referred to the fact that the detenu was not eligible because he had visited India during the month of May, 2006.
11. In this Context, one has to remember that before the order of detention was passed, representation was made by the wife of the detenu specifically stating that gold coins have been brought by the passenger for the purpose of marriage of their daughter and the passenger was always willing to pay duty payable at concessional rates. One does not know if the above details had been brought to the notice of the Detaining Authority, whether different view would have been taken. Detention Order is made on the subjective satisfaction. If the Detaining Authority has simply recited that the passenger had not declared gold, the matter would have been otherwise. But in the present case, the Detaining Authority has relied upon both aspects viz., passenger had not declared and moreover, he was also not eligible, as he had visited India within a period of six months, his last visit being during the month of May, 2006. Since it is difficult for us to predicate as to what would have been the conclusion of the Detaining Authority, if the Detaining Authority would have noticed the explanation and (sic) in the fact that there was no allegation of any previous involvement in similar activities. We are of the opinion that subjective satisfaction of the Detaining Authority has been vitiated on as the explanation, which had a has not at all been noticed by the Detaining Authority. In such view of the matter, the Order of detention is liable to be quashed.
12. Apart from the above, the contention of the learned Counsel for the petitioner is to the effect that there has been non application of mind on the part of the Detaining Authority regarding one more aspect, as to whether detenu has been remanded or not. In this connection reference can be made to the decision of the Full Bench of this Court made in HCP No. 1623/2001, dated. 11.04.2002. It is of course true that in the said Full Bench decision, the detenu, who had been arrested and initially remanded, was subsequently taken to hospital and therefore, on the date of next remand, he was not, produced before the Magistrate and therefore, the Magistrate simply, adjourned the matter. The Full Bench found that the Order of detention by reciting that detenu was remand prisoner indicated non-application of mind and therefore, the Order of detention was vitiated. The said decision was followed in 2003 (1) CTC 673 [Abdul Alim v. State of Tamil Nadu by its Secretary], where the factual scenario appears to be exactly similar to the present case.
In the said case, even though the person was in jail, he had not been produced before the Magistrate and the Magistrate had simply adjourned the matter to the next day without specifically extending remand bill a particular date. The Detaining Authority, however, recited as if the remand of the detenu has been extended. In such a case, the Division Bench held that the Order of detention was on account of non application of mind to very vital aspect and therefore, such detention was quashed. Similar view has been expressed by several other Division Benches in cases like HCP No. 1627/2001, HCP No. 688/1997, HCP No. 1266/2044, HCP No. 1400/2004 and HCP No. 1839/1999. On this ground also the Order of detention is liable to be quashed.
13. The other contention raised by the Senior counsel to the effect that in the Order of detention, the Detaining Authority has merely repeated the alleged confessional statement made by the detenu as well as the contents of the magazar without independent application of mind, is not required to be considered, as we are of the view that detention is liable to quashed on other grounds already indicated.
14. Similarly the contention of the learned Counsel for the petitioner that the Order of detention should not have been passed based on one single instance, in the absence of any allegation of the detenu's involvement in any earlier incident, need not be considered, even though prima facie such a contention may be acceptable, in view of the decision of the constitutional bench [Attorney General for India v. Amratlal Prajivandas].
15. In the result, the Order of detention is quashed. The detenu is directed to be set at liberty forthwith, unless wanted in connection with some other case.