Kerala High Court
Kunhi Mohammad vs Union Of India (Uoi) on 25 July, 2006
Equivalent citations: 2006CRILJ4352, 2006(3)KLT795
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, V. Ramkumar
JUDGMENT K.S. Radhakrishnan, J.
1. This Writ of Habeas Corpus has been preferred to set at liberty one M.P. Kunji Mohammed alias Kunjhippa who was detained in Central Prison, Thiruvananthapuram in pursuance to an order of detention bearing No. 5017/SSAl/05/home dated 14-3-2005 issued by the Government of Kerala. Kunjhippa was ordered to be detained under Section 3(1)(i) to (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as per detention order dated 14-3-2005. The grounds for detention with copies of the documents in support of the grounds were served on the detenu and called for his objection. He submitted representation dated 3-12-2005. Representation was considered by the detaining authority and the same was rejected and reply was sent to the detenu vide letter dated 21-12-05. The Advisory Board after hearing the detenu opined vide letter dated 16-1-2006 there was sufficient reasons for the continued detention of the detenu. Detaining Authority, the Government of Kerala later confirmed the order of detention under Section 8(f) of the COFEPOSA Act.
2. Detenu was later arrested on 28-11-2005 and was sent to the Central Prison, Thiruvananthapuram. This Writ Petition has been preferred challenging the order of detention on various grounds. Sri. B. Kumar, Senior Counsel appearing for the detenu pressed mainly two grounds specifically referred to in grounds (J) and (K) of the Writ Petition. Senior counsel submitted that the sponsoring authority had failed to place before the detaining authority a very vital and important document Ext.P11, thereby the order of detention passed by the detaining authority was vitiated. Ext.P11 is an application preferred by the co-accused Mohammed Abdul Nazar before the Chief Commissioner of Customs, Bangalore on 21-2-2005 seeking to compound the offence undertaking to pay the duty thereon. Later Mohammed Abdul Nazar had paid Rs. 10 lakhs towards duty for the goods which was accepted by the department. Counsel submitted that the vital document ought to have been placed by the sponsoring authority before the detaining authority. Counsel submitted that the sponsoring authority should not have kept this vital material to themselves without disclosing the same to the detaining authority, which according to the counsel has vitiated the order of detention. In support of his contention counsel placed reliance on the decision of the Apex Court in V.C. Mohan v. Union of India and Ors. (2002) SCC (Crl.) 648.
3. Senior counsel also submitted that Ext. P11 application submitted before the Chief Commissioner of Customs contained retraction statement of the co-accused Nazar. Co-accused Nazar had retracted two statements which were recorded from him by the Customs Authorities in Ext.P11 application for compounding. Counsel in support of his contention placed reliance on the decision of the Apex Court in State of U.P. v. Kamal Kishore Saini (1988) SCC (Cri) 107 (II). Reference was also made to the decision of the Apex Court in A. Sowkathi Ali v. Union of India (2000) 7 SCC 148.
4. Sri. M.P. Prakash, Special Government Pleader appearing for the State of Kerala submitted that Ext.P11 petition addressed to the Commissioner of Customs is not a relevant or material document to be considered by the detaining authority. Counsel submitted that the said representation is only a request for compounding the case and also seeking permission to pay duty. Further it is also stated that the said representation was rejected by the Chief Commissioner of Customs, Bangalore and report to that effect was sent to the co-accused. Learned Government Pleader submitted that the application as well as the order passed thereon by the Chief Commissioner of Customs is not a relevant document to pass order of detention under the COFEPOSA Act. Counsel submitted that the application is to be entertained under the Customs Act, a different statute and the proceedings leading to detention has to be dealt with under the COFEPOSA Act. Both are independent and separate enactments.
5. We may now examine the rival contentions raised by both sides in the facts of this case. M/s. Pride International Trading had imported a consignment of consumer goods and household items from UAE vide Bill of Lading No.SCL/DXB/E/COK/2675 dated 15-11-2004. As per the said Bill of Lading, the consignment grossly weighing 24,000 kgs. was shipped by M/s. Anwahi Stores, Dubai and carried from Dubai to Cochin by vessel M.V.Lanka Mahapola in container No. CRXU 932183-8. The importer, through their agent M/s. Total Shipping India Private Ltd. filed a Bill of Entry No. 151584 with the Customs House, Cochin on 25-11-04 for clearance of the said consignment. Invoice and packing list No. 18175 dated 13-11-04 issued by M/s. Anwahi Stores were submitted by the importer at the time of filing the Bill of Entry. The Bill of Entry and the enclosed documents were scrutinized by the Superintendent of Customs of the Dock Intelligence Unit of R & I Division and was noticed that as per the Bill of Entry and other documents there were only 16 items and the given quantity and nature of the items declared was not sufficient to substantiate a gross weight of 24000 Kgs. reflected in the Bill of Lading. Therefore the officers of the Dock Intelligence Unit kept the container under surveillance. On 27-11-04 the C.H.A., M/s. Total Shipping India Private Ltd. filed an application before the Assistant Commissioner of Customs seeking permission for sealing and movement of the container from Docks to M/s. Asian Terminal, a private container freight station located in Willingdon Island for de-stuffing under Customs Supervision. Based on the said request and an undertaking given by the C.F.S. operator to transport and produce the container before the Superintendent of Customs at the C.F.S., the removal of the container from Docks to the C.F.S. was permitted under Customs seal. The container was removed from the Wharf through Q 10 gate at around 11 a.m. on 29-11-04. The trailer carrying the container, instead of going directly to the C.F.S. remained parked near the Wharf until around 1830 hours. During surveillance it was observed that two lorries had entered the premises and one of them was parked back to back with the Container No. CRXU 932183-8. Customs authorities noticed that the container was opened and goods were being transferred from the container to one of the lorries. Officers intervened and the persons engaged in the operation were restrained. Detenu was one among them. On questioning, he had admitted that the goods were imported by his firm M/s. Pride International and that the container actually contained goods in excess of the declaration made by him. Officers later examined inventories and seized the goods totally valued at Rs.56,63,360/- and the two lorries collectively valued at Rs. 7,00,000/- under a mahazar dated 30-11-2004 under the provisions of the Customs Act, 1962.
6. The detenu Kunjhippa appeared before the Superintendent of Customs and his voluntary statement under Section 108 of the Customs Act was recorded. He had stated that together with his friend Sri. Mohammed Abdul Nazar who is the petitioner in WP(C). 239 of 2005 is running an import export firm in the name and style "Pride International" Mumbai and he had planned to import electronic goods and pen torch batteries from Dubai and that he was told by his friend in Dubai one Yousef that the aforementioned items would attract more customs duty if imported from China and that it would be profitable to import the same from Dubai and hence the detenu, Nazar and Yousef made preparations to import the above mentioned goods. Thus in pursuance to the conspiracy the detenu himself had gone to Dubai and with the help of his friend Yousef purchased goods worth Rs. 25 lakhs and sent the goods in the name of his company. The assessable value of the seized goods is Rs. 28,08,446.35. The amount of Rs. 56,33,360/- shown is the tentative market value arrived at as on the date of seizure. The anti dumping duty in respect of the seized goods comes to Rs. 39,98,948/-. In addition to this, basic customs duty of approximately Rs. 11,53,505/- is also liable to be levied. The actual market value of the imported goods is more than the tentative market value of Rs. 56,33,360/-.
7. The sponsoring authority on completion of the investigation of the case sent proposal for initiating proceedings under the COFEPOSA Act to the office of the detaining authority as per letter dated 10-2-2005 which was received in the office on 14-2-05. Files were then placed before the COFEPOSA Screening Committee constituted for the purpose. Screening Committee met on 4-3-05. After perusing the files and after arriving at subjective satisfaction the detaining authority ordered to issue detention order on 5-3-05. Later after completing all formalities the detention order was passed on 14-3-05. Detenu was served with Ext.P7 order dated 14-3-2005 along with grounds for detention, which would clearly show that Co-accused Nazar had appeared before the Superintendent of Customs and his voluntary statement under Section 108 of the Customs Act, 1962 was recorded. He had stated that he along with the detenu had planned to import electronic goods and pen torch batteries from Dubai. Further Nazar had stated that the detenu did all the financial dealings of this operation and that Nazar was one of his employees and was paid salary.
8. Muhammed Abdul Nazar had also appeared before the Superintendent of Customs on 21-12-2004 and had informed the officer that he wanted to disclose certain facts which were not included in his earlier voluntary statement. In his second voluntary statement also he had specifically referred to the detenu and the involvement of the detenu in the whole transaction. On the basis of those two voluntary statements recorded under Section 108 of the Customs Act the detenu was informed by the grounds of detention as follows:
a) You, Sri. M.P. Kunjhi Mohammed conspired with Sri. Mohamed Abdul Nasar alias Nazar Veeran Mohamed, Proprietor of M/s. Pride International Trading, holding Importer Exporter Code No. 0302067647, to smuggle consumer goods and pen torch batteries to India:
b) To ensure successful operation of the clandestine transaction, in concert with Sri. Mohamed Abdul Nasar, you conspired with Sri. P.V. Vijaykumar, Sri. R. Sreekumar and Sri. Philip Varghese, and in pursuance of the conspiracy attempted to smuggle consumer goods and pen torch batteries collectively valued at Rupees Fifty Six Lacs Thirty Three Thousand Three Hundred and Sixty:
c) In furtherance of your common intention, you imported a consignment of consumer goods and pen torch batteries in the name of M/s. Pride International Trading, and, with the activeconnivance of Sri. P.V. Vijaykumar and Sri. R. Sreekumar deliberately mis-declared the contents in the Bill of Entry, contrived to remove the container to a private C.F.S in accordance with the pre-meditated plan, and attempted to smuggle the undeclared goods with the active connivance of the watchman of the C.F.S. Sri. Philip Varghese;
2) While you were personally engaged in the overall supervision of the clandestine removal, in the early morning of 30-11-2004 you were intercepted by Officers of Customs Preventive Commissionerate, Cochin, and the goods collectively valued at Rupees Fifty Six Lacs Thirty Three Thousand Three Hundred and Sixty, and the two lorries collectively valued at Rupees Seven Lacs were seized under a Mahazar:
e) Out of the two lorries seized, one bearing registration number KL-10 D 216 belongs to you as is evidenced from the registration certificate and your admission:
f) The goods collectively valued at Rupees Fifty Six Lacs Thirty Three Thousand Three Hundred and Sixty seized under the Mahazar dated 30-11-2004 while you were attempting to clandestinely removed it from the premises of the C.F.S. M/s Asian Terminal are deemed to be smuggled goods within the meaning of Section 2(e) of the COFEPOSA Act, 1974 (asamended) read with Section 2(39) of the Customs Act, 1962:
g) You financed the transaction, master minded the entire operation and engaged in criminal conspiracy with others with a view to defraud the Exchequer,
h) The goods brought by you were intended to be distributed and sold in the domestic market evading Customs Duty and other Government levies:
i) You have the wealth, influence and resources to organize large scale smuggling activities from behind the scene:
j) You have the uncanny ability to recruit people and engage with them in conspiracy to smuggle goods in a manner highly prejudicial to the interests of the Nation.
Based on those reasons the detaining authority was satisfied that the detenu should be detained under Section 3(1)(i) to (iii) of the COFEPOSA Act, 1974, with a view to prevent him from (i) smuggling of goods, (ii) abetting the smuggling of goods, and (iii) engaging in transporting or concealing or keeping smuggled goods. Detenu filed his representation dated 3-12-2005 which was rejected by the detaining authority and was given reply by the detaining authority on 21 -12-05. Later the order of detention was passed against the detenu which was confirmed by the detaining authority vide its order dated 23-1-2006.
9. Voluntary statements made by the co-accused Nasar were relied upon by the detaining authority to issue order of detention against the petitioner. The co-accused retracted from those two voluntary statements in the application filed by him before the Chief Commissioner of Customs, Bangalore for compounding the offence under Section 137 of the Customs Act, 1962 as amended by Section 71 of the Finance (No. 2) Act 2004. It is specifically stated in Ext.P11 application for compounding by the co-accused as follows:
On 6-12-20041 have been served with a summons to appear before the Superintendent of Preventive Division Customs on 8-12-2004. Accordingly I appeared before that Officer on the date of summons and I was asked to sign a statement dictated by the said officer to me. In fact the said dictation was as against the true affairs of the case and as against the actual transaction done by me in respect of the said import. Since I was under duress and in a feeling of eminent danger to my person I had no other way but to obey the commands of the customs officials under the threshold of threat and coersion. The said statement dictated to me was not given by me voluntarily in the above circumstances. Thereafter I was asked to appear before him on 21-12-2004. I obeyed the said command and appeared on that day. Then the said Officer dictated another statement to one of the Customs Officials who recorded the same and asked me to sign on it just like the previous day I happened to sign on the 2nd statement as well as there was no other way. After recording on that statement the Superintendent Preventive Customs, informed me that myself was arrested.
Above statement made by the co-accused before the Commissioner of Customs, a superior authority though in a compounding application preferred under Section 137 of the Customs Act, 1962, is a relevant material which ought to have been placed before the detaining authority. The Apex Court in C. Mohan's case (supra) has examined the question whether an application preferred by the detenu before the Settlement Commission under Section 127-B of the Customs Act and the orders passed thereon directing payment of additional duty are relevant documents to be placed before the detaining authority. The Apex Court held that the application as well as the order passed by the Settlement Commissioner on it are not only important but of definite impact in the matter of detention. Court felt that the factum of non-placement of relevant documents has had a serious effect and made definite inroad into the petitioner's liberty. The Court concluded that the order passed by the Commissioner directing the detenu to make payment of the additional duty cannot but be termed to be a very relevant material having a direct impact on the issue and in the event of non-placement of the same before the detaining authority, question of affirmation of the detention order would not arise.
10. We have already indicated that in the compounding application preferred under Section 137 of the Customs Act before the Chief Commissioner of Customs, Bangalore the co-accused retracted from his earlier two statements made before the sponsoring authority on 6-12-2004 as well as 21-12-2004. Those two voluntary statements made by the co-accused weighed with the detaining authority in issuing order of detention against the detenu. Since co-accused had retracted from those two statements in the compounding application preferred before the Chief Commissioner of Customs, superior authority of the customs department, those retraction statements of the co-accused are relevant documents which ought to have been placed before the detaining authority, in the event of which detaining authority in a given case would have taken a different view. We may in this connection refer the decision of the Apex Court in Sowkath Ali's case (supra). The Court took the view that nonplacing of retraction statement of the co-detenus before the detaining authority would affect his subjective satisfaction even if the detaining authority was the same in cases of detention of the co-detenus as well as the petitioner detenu no presumption can be drawn that the detaining authority was aware of the retraction.
11. We are of the view that the principle laid down by the Apex Court would apply to the facts of this case since the detaining authority had placed reliance on the two voluntary statements made by the co-accused for issuing the order of detention as against the petitioner in this case. Retraction statements made by the co-accused even in an application for compounding under Section 137 of the Customs Act would be relevant and important documents which the sponsoring authority should have placed before the detaining authority. Having not done so, we are of the view that the subjective satisfaction arrived at by the detaining authority to issue the order of detention is vitiated. Under the above mentioned circumstances, we are inclined to allow this Writ Petition and quash the detention order dated 14-3-2005 and also the confirmation order dated 23-1-2006 and we are inclined to issue a writ of Habeas Corpus and order to set the detenu at liberty. The judgment however, would not stand in the way of the authorities to follow the proceedings and pass fresh order of detention in accordance with law.