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3. A Huge quantity of gold jewellery weighing about 17 Kgs., and valued at more than Rs. 1 Crore, was caught being smuggled by concealing it in household articles such as a Refrigerator which arrived as unaccompanied baggage at the Air Cargo Complex, Sahar Mumbai by FEDEX flight No.FX5034 on 17.11.2005. The unaccompanied baggage arrived under the name of one Sarwar Husain Sagir Husain, who held Indian Passport No.A5942380. The Petitioner Vivek Dutta was identified as the person who came to clear the consignment. He was intercepted by the DRI Officers. Documents being 2 cargo delivery orders, 2 Airway bills, one authority letter from Sawar Hussain in his favour and the Passport of Sawar Hussain came to be impounded. He disclosed that he was directed to clear the consignment by Petitioner Sanjay Nair. The consignment containing inter alia the Refrigerator with 17.059 Kgs., of gold concealed in the door and other internal compartments, Soni Television and a long Clock and another consignment containing cordless phones and answering machines came to be seized. The statement of Vivek Dutta was recorded which showed he is operating as a freelance custom clearing agent under CHA license of M/s. Dalal & Sons (CHA No.11/497). He stated that the Petitioner Sanjay Nair asked him to clear the goods and Petitioner Sanjay Nair as well as Petitioner Arvind Saxena made him sign the authority letter in the name of Sarwar Husain under which he had sought to clear the consignments from 17.11.2005. He was paid Rs.25,000/by Sanjay Nair for clearing the consignment. He stated about the amounts he was paid for clearing the consignments on earlier occasions.

13. The further statement of Vivek Dutta recorded on 31.1.2006 revealed on Chotu working with Arvind Saxena and Sanjay Nair. It also revealed that the letter of authority was got forged by Arvind Saxena in the name of Vivek Dutta in the presence of Sanjay Nair and Ravi Kotian. The statement showed that he was paid his commission for clearing the consignments either by Arvind Saxena or Ravi Kotian.

14. Consequently the detention order came to be passed against each of the 4 Petitioners on the ground that they, had easy access to UB Center at the Airport and indulged in smuggling activities for bringing contraband goods by obtaining entry either as employees of licensed custom house agents or otherwise and thus operated as an organised gang.

20. The detention orders in these cases clearly show that Vivek Dutta was only sent to clear the goods upon being paid his commission of Rs.25,000/by Sanjay Nair who in turn was also to clear the goods, (if he had himself done so), upon the similar commission being paid to him. The detention orders however, show that Arvind Saxena obtained the fake Passport of Sarwar Husain who had not imported any goods or ordered any consignment from abroad. He also got the latter of authority signed by Vivek Dutta in the presence of the others and accordingly, got it forged. Whereas Vivek Dutta, Sanjay Nair and Arvind Saxena have shown some affiliation to the firm of Custom House Agents being Dalal & Co. and Sayani and Sons respectively, Ravi Kotian has not shown any such affiliation also. Each of them has done freelance work in addition to the work of the firm assigned to them for clearance of consignments. Whereas Vivek Dutta and Sanjay Nair did nothing further than to take the documents given to them for clearance of the goods, Arvind Saxena obtained the fake Passport and got the letter of authority forged and fabricated to be used for the consignment. That was not a function of the Custom House Agent. He, therefore, exceeded the authority of the Custom House Agent. He acted on his own account and not as an agent. Whereas Vivek Dutta and Sanjay Nair could immediately reveal in their statements how they worked for Arvind Saxena and Ravi Kotian, Arvind Saxena though claiming to be Custom House Agent and stated to be working with Sayani & Company has not shown the ultimate owner who signed the declaration under Section 77 of the Customs Act and who smuggled the goods by doing the act by which they were rendered liable to confiscation viz., by concealing the dutiable goods in the refrigerator before they were loaded as per Section 111(i) of the Customs Act. Even if he acted as an agent he acted for an undisclosed principal. The very concept of agency implicitly requires the disclosure of the principal on whose behalf the agent acts. Vivek Dutta and Sanjay Nair showed how they were directed to clear the consignment by Arvind Saxena and Ravi Kotian. Arvind Saxena has not shown on whose behalf he acted or directed Sanjay Nair or Vivek Dutta to act for clearing the consignment as his subagent.

24. On reading the 4 detention orders containing the separate statements of the 4 Petitioners as also the statements of the 2 Custom House Agents as well as Sarwar Husain, the innocent, unknowing Passportholder, whose Passport was misused, it becomes evident that Vivek Dutta and Sanjay Nair, in their capacity as freelance Custom House Agents worked on the directions of their Principals Arvind Saxena and Ravi Kotian, who paid them commission for clearing the contraband goods contained in the 2 consignments which arrived at Sahar Airport, Mumbai on 17.11.2005. Arvind Saxena and Ravi Kotian are not shown to be agents of any Importer of those consignments.