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MRS.BADRUNIS versus THE TAMIL NADU STATE

High Court of Madras

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Mrs.Badrunis v. The Tamil Nadu State - H.C.P.No. 2588 of 2002 [2003] RD-TN 464 (26 June 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 26/06/2003

CORAM

THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU

and

THE HONOURABE MR.JUSTICE S.R.SINGHARAVELU

H.C.P.No. 2588 of 2002

Mrs.Badrunissa ...Petitioner

-Vs-

1.The Tamil Nadu State,

rep. by its Secretary,

Public (SC),

Fort St. George,

Chennai-9.

2.The Union of India,

rep. by its Secretary,

Ministry of Finance,

(COFEPOSA),

New Delhi. ...Respondents

Petition filed under Art.226 of the Constitution of India praying for the issue of writ of Habeas Corpus as stated therein. For petitioner : Mr.Habibulla Basha,

Senior Counsel,

for Mr.G.M.Syed

Fasiuddin

For 1st respondent : Mr.A.Navaneethakrishnan,

Addl. Public Prosecutor.

(The order of the Court was made by

R.JAYASIMHA BABU, J.)

:ORDER



The detention of Abdul Khader, aged 52 years, on the ground that he was engaged in smuggling activities, was made on 15.11.2002. He was detained at the Chennai Airport, when he returned to Chennai from Hong Kong and was found to be carrying 31 kgs. of white powdery substance in a suit case and attempting to pass through the Green Channel after giving the declaration regarding the number of pieces of baggage brought by him, which was one, but without making any declaration regarding dutiable goods that he may have carried in that suit case.

2. After the bag was opened in the presence of witnesses, it was found that there were six polythene bags containing white powdery substance labeled as "seamax bonding solution". After the samples obtained from those bags were analysed, it was found that the white powdery substance was steroids, viz., 16 kgs of Prednisolone, 10 kgs of Dexanethasone and 5 kgs of Betamethasone, the total value of which was Rs.1 5,95,000/-. He was arrested on 2.8.2002. He was later granted bail by the Court on 17.9.2002 and was on bail at the time the detention order was made on 15.11.2002. He had not breached the condition subject to which the bail had been granted.

3. In his confession statement, a statement which he subsequently retracted, but which retraction itself was later retracted, he has stated that he was employed as as courier for one Nazir and that he was paid a sum of Rs.5,000/- for making trips to Hong Kong and bring back with him things delivered to him by a person in Hong Kong and he had always walked through the Green Channel, having brought the articles in his accompanying baggage and that the thing s so brought by him were handed over to Nazir immediately he came out of the airport. His passport showed that he had made many trips to Hong Kong in the preceding 18 months.

4. On the basis of the information given by the detenu, the Police were able to secure Nazir, for whom the detenu had served as courier. Nazir was identified by the detenu at an identification parade conducted in Customs House on 8.10.2002. The order of detention was made about a month later on 15.11.2002.

5. Mr. Habibulla Basha, learned Senior Counsel for the petitioner the wife of the detenu, assailed the order of detention on several grounds, the first of which was that the delay in making the order of about 3-1/2 months has snapped the link between the purpose for which the detention is made and the facts on the basis of which the detention order has been made. Counsel, in support of that submission, relied on the decisions of the Apex Court in the case of T.A.Abdul Rehman v. State of Kerala (AIR 1990 SC 225); Pradeep Nilkanth Paturkar v. Ramamurthi and others (1993 SCC (Crl.), 392); Ahamed Mohaideen v. State of Tamil Nadu (1999 Crl.L.J., 3488) and an unreported judgment of a Division Bench of this Court in H.C.P.No.658 of 1999. In these decisions, Courts have stressed that there must be a proximate link between the events, leading up to the order of detention and the purpose sought to be achieved by the detention order. Though it would not be permissible to merely count the number of months or days between the date of the incident and the date of the detention order for the purpose of holding that there was delay, what has been stressed is that it is the unexplained delay that would result in the order being regarded as vitiated, as such long and unexplained delay would indicate that the link between the events and the object of the detention had snapped.

6. In the case of Gora v. State of West Bengal (AIR 1975 SC 473), the Court observed thus:-

"Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it".

7. Applying the test so formulated by the Court we are unable to accept the submission that in this case, the delay has been so gross or that the delay has not been sufficiently and properly been explained and on that ground the detention order is required to be interfered with.

8. The facts already adverted to show that after his arrest on 2.8.2 002, the assistance of the detenu was sought in identifying Nazir for whom he had worked for four years. Nazir was identified by the detenu on 8.10.2002 and documents relating to that identification had been furnished to the detenu. Thereafter, the authorities took some time to collect all the relevant papers and thereafter proceeded to make the order of detention. The period that has elapsed from the time of the initial arrest and the date of detention order has been satisfactorily explained.

9. We may deal with other minor grounds urged for the petitioner before we consider a ground which is substantive and with which we will deal presently.

10. It was urged that the order of detention is vitiated by reason of a relevant document not having been placed before the Advisory Board, viz., the order made by the Sessions Judge, rejecting the application for cancelling the bail. We have seen the original of that order. All that that order states is that "as the person is already in detention, the application for revocation of his bail does not require further consideration and is dismissed". More over, the copy of that order was issued by that authority only some weeks after the Advisory Board had met, the Board having met on 20.1.2003.

11. Several decisions were cited by counsel in support of his submission that all relevant documents should be placed before the detaining authority. The decision cited by counsel are, Mohinder Pal Singh v. State of Tamil Nadu [1999 (2) MWN (Crl.) 17]; Subramanian v. State of Tamil Nadu [1999 (2) MWN (Crl.) 244] and two unreported judgments of two other Division Benches of this Court in H.C.P.No.1444 of 1999 and H.C.P.No.213 of 2000. It has been held in those cases that all relevant materials should be placed before the detaining authority by the sponsoring authority; that even post-detention documents, if they are relevant, should be placed before the Advisory Board.

12. In this case, the document viz., the order of the Sessions Judge, dismissing the application for cancellation of bail was not available to the authority on the date the Advisory Board met. There was nothing in that document which would have been of any assistance to anyone as all that the order states is that the application does not require any further consideration by reason of the accused being in detention by virtue of the detention order made against him under the COFEPOSA.

13. It was also submitted that one of the documents furnished to the detenu is illegible, inasmuch as below the document were found some handwritten notings in English which were not decipherable, and that it created confusion in the mind of the detenu and also disabled him from making effective representation. We di rected the respondents to produce the original of the document. We have seen the original. In the document there are no notings at all. In the counter affidavit it has been stated that the notings found in the copy given to the detenu was an inadvertent photocopying error as some other documents got superimposed on this document while the document was being photocopied. We are satisfied with that explanation and it is also not possible to hold that the presence of some superfluous matter in the document furnished to the petitioner is so grave an error as to vitiate the very order of detention.

14. The point of substance, however, which needs to be addressed is the one based upon the alleged non-application of mind by the detaining authority. In the order of detention, after referring to the seizure of the white powdery substance and some other papers from the detenu, it is stated thus:-

"By attempting to import the aforesaid goods under seizure without any valid documents in trade quantity under the guise of "bonding solution" with the intention to smuggle them into India, you have rendered the same liable for confiscation under Sec.111 of the Customs Act, 1962 read with the Foreign Trade (Development & Regulation) Act, 1992 , and has also rendered yourself liable for penal action under Sec.11 2 of the Customs Act, 1962." We find that in the confession statement recorded to a specific question by the officer as to whether the detenu had any valid document to show the legal import of the goods, the detenu has stated that he did not have any. He has further stated thus:-

"I know, it is an offence to bring goods in trade quantity, escaping through Green Channel, without declaring to Customs."

15. It was submitted by learned counsel for the petitioner that the needfor a valid document for licit import will arise only when the law requires a licence or other document prior to the importation, and as these steroids are not prohibited goods and its import is permitted without any restriction, the detaining authority had confused itself in thinking that a valid document was required for the import of steroids. It was further submitted that the authority was not clear as to whether at all a document was required for its import, as in the order it is stated that the seizure of the powder was on account of a suspicion that it was a chemical for which documents permitting import were necessary.

16. Learned counsel submitted that under the Import Policy prevailing at that time and which is also the policy now, no licence is required for the importation of steroids. Learned counsel also invited our attention to the statement in the counter affidavit that the detenu had brought with him a 'restricted item' and submitted that this again would indicate that the respondents were not clear as to whether the chemical brought by the detenu was a 'prohibited item' or a ' restricted item'. Learned counsel, therefore, submitted that the authority had failed to apply its mind to the relevant facts before making the order of detention.

17. Another facet of the argument was that the authority had not indicated a specific sub-section of Section 111 of the Customs Act in the detention order. Learned counsel submitted that Section 111 which deals with the confiscation of improperly imported goods, under cluse (d) refers to goods imported "contrary to any prohibition imposed by or under this Act or any other law for the time being in force" and steroids not being prohibited goods, but on the other hand being life saving drugs, clause (d) of Section 111 of the Customs Act has no application. Learned counsel submitted that by referring to the valid documents, the authority must be regarded as having had in view only Section 111 (d) of the Act and not any other part of Section 111.

18. Learned counsel for the State sought to refute those contentions made for the petitioner, by inviting our attention to the definition of "smuggling" in Section 39 of the Customs Act, which reads thus:- "smuggling", in relation to any goods, means or act or omission which will render such goods liable to confiscation under section 111 of Section 113. Section 111 refers to confiscation of improperly imported goods, while Section 113 refers to confiscation of goods attempted to be improperly exported. Learned counsel for the State invited our attention to sub-clause (m) of Section 111, which reads thus:-

"any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54."

Section 77 deals with declaration by owner of baggage and mandates that the owner of any baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer.

19. Section 79 of the Customs Act was also relied upon. That Section deals with bona fide baggage exempted from duty. Sub-section (2) of Section 79 empowers the Central Government to make rules for the purpose of carrying out the provisions of that Section. Sub-clause (b) of sub-section (2) of Section 79 refers to the maximum value of any individual article and the maximum total value of all the articles which may be passed free of duty under clause (b) sub-section (1).

20. The Baggage Rules, 1998, issued by the Government of India, in exercise of its powers conferred by Section 79 (2), more particularly Rule 3, was referred to and relied upon. That Rule 3 deals with passengers returning from countries other than Nepal, Bhutan, Myanmar or China and provides that such person shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix A. Column (2) of Apendix A allows passengers above the age of 12 years and returning after stay abroad of more than three days to bring with them (i) Used personal effects, excluding jewellery, required for satisfying daily necessities of life; (ii) Articles other than those mentioned in Annex.I upto a value of Rs.12,000 /- if these are carried on the person or in the accompanied baggage of the passenger. If a passenger after, stay abroad for less than three days, returns such passenger is allowed to bring articles worth only Rs.6,000/-. The articles mentioned in Annexure I, which cannot be brought as baggage free of duty, even within the limit of Rs.6,000/- or Rs.12,000/-, are fire arms, cartridges of fire arms exceeding 50, cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 gms., alcoholic liquor and wines in excess of one litre each and gold or silver, in any form, other than ornaments.

21. Learned counsel for the State, placing reliance on the provisions of the customs Act and the Baggage Rules, submitted that the detenu was a passenger who was returning to India from Hong Kong and all that he was entitled to bring with him as part of personal baggage were his personal effects required for satisfying daily necessities of life and articles of the value of Rs.12,000/- or less, such articles not being those mentioned in Annexure-I and not being jewellery. Counsel submitted that all passengers are required to submit a declaration after they arrive with regard to the dutiable goods carried by them. The declaration to be made requires that the passenger states his or her name in full, the flight number of the aircraft by which he or she arrived when such arrival is at the airport, the number of baggage carried, the number of check baggage, the number of hand baggage and the total value of dutiable goods being carried. The passenger is required to sign the declaration.

22. In this case, the detenu when he arrived from Hong Kong, filled up such a declaration and, while stating the pieces the checked baggage was 'one' and hand baggage also being 'one', did not declare the value of the dutiable goods that were brought with him in his baggage, having left that column without any answer. Learned counsel submitted that by attempting to pass through the Green Channel with dutiable goods in his baggage, he was clearly contravening the Baggage Rules and the provisions of the Act and that act of the detenu amounted to smuggling as he was seeking to bring into India dutiable goods without payment of duty and by reason of Clause (m) of Section 111, such goods were liable to be confiscated. That act of the detenu amounted to 'smuggling' as that term is defined in Section 2 (39) of the Customs Act.

23. It was further submitted that the COFEPOSA, as its very title indicates, is an Act which is aimed at preventing smuggling activities and the order of detention that can be made under Section 3 of the COFEPOSA is for the purpose of preventing the detenu from "smuggling goods".

24. Counsel also relied on a decision of the Apex Court in the case of Kamarunnissa v. Union of India (AIR 1991 SC 1640), wherein it was held, inter alia, that the omission to specify sub-clause (1) after resorting to section 3 of the COFEPOSA Act would not vitiate the order of detention when the detention order itself clearly stated that that detention was directed on account of the smuggling activities indulged in by the detenu. Learned counsel for the State submitted that in this case, the omission to specify sub-clause (m) of Section 111, after referring to that section would not vitiate the order.

25. Reliance was also placed on a decision of the Apex Court in the case of The District Magistrate, Nowgong v. Sarat Mudaoi (1983 Crl.L.J., 1728). It was a case under the National Security Act, wherein in the order of detention a specific mention about the supply/service being affected by the activities of the detenu had not been made. The Court in that case held that the specification of those activities in the grounds was sufficient compliance with the requirement of law.

26. One of the the documents furnished to the detenu is a copy of his passport. A perusal of the contents of that passport shows that the detenu was not a person who, on a solitary occasion, had brought some dutiable goods of high value without knowing the consequences of his action. The detenu had obtained a passport in the year 1993 and later in the year 2001 had obtained a fresh passport. The stampings in that passport show the frequency with which the detenu had travelled to Hon Kong and and back. They also indicate the very short periods for which he had stayed in Hong Kong. Between October 2001 and July 2002, he had visited Hong Kong every month and in many of those months twice and in some of those months thrice a month. He went to Hong Kong twice in October, twice in December, 2001, thrice in each of the months of January, March, April and May 2002, twice in February and once in June and once in July. He was arrested when he returned to Chennai on the 1st of August. The regularity of his visits to Hong Kong can leave no doubt in any one's mind that the detenu was very much a professional courier, who regularly commuted between Hong Kong and India for the sole purpose of carrying goods at the behest of Nazir and was intended to aid him in his activities of smuggling into India goods which were then disposed of by Nazir. There was no possibility at all of the detenu being under any misapprehension about the nature of the goods that he was bringing. He was well aware of the fact that it was meant for trade and that the trade in which Nazir was engaged was trade in smuggled goods.

27. The preamble to the COFEPOSA Act, in para 3 states thus:- "AND WHEREAS having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith."

The activities in which the detenu had been indulging in with great regularity month after month for a period of well over a year as disclosed from the entries in his passport brings him within the class of persons whose activities were intended to be prevented by the COFEPOSA. Added to this is the fact that the detenu had been involved in another case earlier, with regard to the importation of a substance, which was labeled in the very same way in which the baggage brought by him at the time of his arrest was labeled viz. as "bonding solution". The labeling was clearly meant to mislead, as the contents of the baggage of the detenu were found to be steroids and certainly did not correspond to the label that had been affixed on the baggage.

28. The value of the goods that he was carrying and the nature of the goods also appear to have been within the knowledge of the detenu. On his person was found a plain white paper in which it was written "Beta Methasone Sodium - 2,480 US Dexa methasone Sodium - 1,800 US B-12 - 5,050 US" The packages which he had carried in his checked baggage was found to contain 16 kgs of Prednisolone, 10 kgs of Dexanethasone and 5 kgs of Betamethasone.

29. The submission made for the petitioner that the declaration which an incoming passenger is required to furnish does not provide sufficient information to the passenger about the permissible quantities and the values as also the kind of goods that he may bring in, though on the face of it rather attractive, is not one which can be sustained. Every international traveler is required to inform himself or herself of the Rules, which permit or regulate in any manner the goods that one can bring, the kind, the quantity as also the value and further as to whether such goods can be taken as part of the personal baggage and, if so, the quantity and the value. More over, it is not possible for the entire contents of the Baggage Rules to be furnished to the passenger at the time of his travel although it is desirable that the highlight of it made known to the traveler. The declaration, which the passenger is required to make requires him to state the total value of the dutiable goods being imported. In this case, the detenu did not choose to disclose the value of the goods that he was carrying his bag, though the slip carried on his person indicated its value to be several thousand US Dollars. That bringing restricted goods in trade quantities in one's baggage is an offence is also a fact which was known to the detenu. He has stated in his confession statement that "I know, it is an offence to bring goods in trade quantity and walk through the Green Channel without declaring to Customs."

30. It is clear that the detenu had full knowledge of the work that he was doing viz., that of a courier for a person who was engaged in dealing with smuggled goods; that he had been regularly visiting Hong Kong at his behest to bring goods as part of his personal baggage for being handed over to Nazir at whose instance he made all these trips. He must also have been fully aware that the very object of working as a courier was to avoid the payment of duty on goods brought as personal baggage and, possibly, also to bring in goods the import of which may have been prohibited or restricted.

31. The definition of 'smuggling' in the Customs Act is sufficiently wide to cover not only the bringing in of prohibited goods, but also bringing in dutiable goods without payment of duty. The act indulged in by the detenu clearly shows that he had brought dutiable goods--it is not disputed that the steroids brought by him are infact dutiable-- without having paid duty thereon. The statement in the detention order that by reason of the detenu having brought in 31 kgs. of steroids as part of his personal baggage, he had indulged in smuggling, therefore, cannot be said said to be in any manner vague or as indicating non-application of mind on the part of the detaining authority to the relevant material nor does it indicate any confusion in his mind as to why the detention of the detenu was being ordered.

32. In paragraph 7 of the detention order, the events that led to his arrest are set out. Thereafter, the order proceeds to refer to the chemical analysis of the white powder that had been carried by the detenu and the other further developments including the identification by the detenu of Nazir. The detaining authority, after narrating all those facts, recorded his subjective satisfaction of the need of the detenu's detention thus:- "From the above materials, the State Government are satisfied that you have indulged in smuggling goods and abetting the smuggling of goods". That conclusion of the detaining authority cannot be said to be one which has been reached without properly applying his mind to the facts which he was required to examine with a view to decide as to whether the detenu was at all required to be detained under the provisions of the COFEPOSA.

33. The steroids which were brought by the detenu viz. Prednisolone, Dexanethasone and Betamethasone are goods, the import of which is not prohibited, but are goods on which duty is payable on importation. The new Import-Export Policy for the year 1997-2002 shows that the Basic/Preferential Customs Duty on Prednisolone is 35/25 per cent, Additional Duty of Customs is 16 per cent and Special Additional Duty is 4 per cent. The rate of duty on Dexanethasone and Betamethasone is the same.

34. Thus, what had been brought by the detenu were clearly dutiable goods on which duty was payable. A passenger, who brings with him dutiable goods, whose value exceeds Rs.12,000/-, is, under the Baggage Rules, required to pay duty at 60 per cent ad valorem. In the "New Import-Export Policy and Proedures 2002-2007, Chapter 98 deals with "Project Imports, Laboratory Chemicals; Passen gers' Baggage; personal importations by air or post, ship stores". Entry 9803 thereunder is "All dutiable articles, intended for personal use, imported by post or air, and exempted from any prohibition in respect of the imports thereof under the Imports and Exports (Control) Act, 1947 (18 of 1947) but excluding articles falling under heading 9803". Heading 9803 10 00 is "Drugs and Medicines". It is 'restricted'. Entry 9803 90 00 is "Other". That is also 'restricted'. Thus, a passenger, while he may bring with him goods, the importation of which is not prohibited, is nevertheless under a restriction with regard to the value of the goods and the quantity thereof that he may bring as part of his baggage. Any quantity in excess of the permissible limit will incur the liability for payment of duty. More so, when the goods are in trade quantities. It is evident on the facts of this case that what had been brought was not medicine for personal use as it was at no time the case of the detenu that he had brought these steroids for his own medication or even for the medication of any member of his family. What had been brought was several kilograms of steroids worth several lakhs of rupees and was obviously meant for trade.

35. The defendant's attempt to bring those dutiable goods into India without having paid duty thereon was clearly not a licit import. The reference to the document evidencing licit import in the context in which it is referred to in the detention order is the document evidencing payment of duty on dutiable goods brought into India by the passenger, after payment of which duty only the goods could be taken out of the customs area in the international airport.

36. Learned counsel for the petitioner submitted that specific entries in the customs tariff always have to be regarded as not having been covered by general entries. Entry 9803 is special for passengers and restricts their right to bring in dutiable goods beyond the prescribed value.

37. The petition is dismissed. Index: Yes

Website: Yes

To

1.The Tamil Nadu State,

rep. by its Secretary,

Public (SC),

Fort St. George,

Chennai-9.

2.The Secretary to Government,

(COFEPOSA),

Ministry of Finance,

Union of India,

New Delhi.

dev/




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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