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Judgment
J.A.K. Sampath Kumar, J.
The petitioner, by name Asial Beevi, challenges the impugned order of detention dated 20.07.2005, detaining her son Mohammed Arif, who was
detained and kept in custody in the Central Prison, Chennai, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 (hereinafter referred to as ""the Act"").
Heard both sides.
Heard Mr.B.Kumar, learned Senior Counsel for the petitioner and Mr. Abudukumar Rajarathinam, learned Government Advocate for the first
respondent and Mr.P.Kumaresan, learned Additional Central Government Standing Counsel for the second respondent.
The learned Senior Counsel appearing for the petitioner contended that when the detenu was a remand prisoner, his mother sent two telegrams
on his behalf, one to the Government and the other to the Directorate of Revenue Intelligence (DRI), New Delhi, which is the Head Office of DRI,
complaining, that the goods brought by the detenu had been excessively valued, only to have a cause to detain the detenu under this Act and other
vital materials and the same were not considered by the Government. Hence, the detention order is liable to be set aside.
Against this, the learned Government Advocate contended that no such telegrams were received by the Government at any point of time and
even if they received, the same cannot be considered as representation in the light of the decision of the case District Magistrate and Another v. R.
Kumaravel reported in 1994 SCC (Cri) 229 and, as such, the contention of the learned senior counsel for the petitioner cannot sustain.
The learned senior counsel appearing for the petitioner also relied on the following decisions;
(i) M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, ;
(ii) Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Others, ;
(iii) Ayya v. State of U.P. 1989 SCC (Cri) 153
(iv) Ahamed Nassar v. State Of Tamil Nadu and Others 1999 SCC (Cri) 1469 ; and
(v) P.M.S. Mohiadeen Sahib v. State of Tamil Nadu (2006) 1 M.L.J. (Crl.) 131.
in support of his contention.
We have carefully considered the rival contentions and perused the relevant materials.
The senior counsel for the petitioner relied on two telegrams sent by the wife of the detenu in support of his contention. There is nothing on
record to show that the said telegrams were really received by the persons mentioned in the telegrams. Learned counsel relied on the documents
only with reference to the proof of sending those telegrams to the addressees. Those documents will not in any way consider as a proof of service
on the persons mentioned in the said telegrams; whereas, against this, it is the categoric contention of the learned Government Advocate that no
such telegrams were received by the persons concerned referred to in the telegrams and also filed counter, objecting to this contention.
In this context, it is relevant to mention the name of the addressees and the contents in the telegrams, for better appreciation of the facts of the
case.
(1)Government of Tamil Nadu,
Fort Saint George,
Chennai-600 009.
My husband Mohammed Ariff arrested by Directorate of Revenue Intelligence Officers, T.Nagar, Chennai-17 by fixing high and inflated value for
goods brought by him. Goods value very is very low. Release requested - Aiysha Beevi.
(2) Director,
Directorate of Revenue Intelligence,
New Delhi.
My husband Mohammed Ariff arrested by your Officers at Chennai. Airport Officers have fixed very high value for goods brought by him in order
to arrest him. Enquiry and release requested - Aiysha Beevi.
The said telegrams were sent on 05.07.2005. Even before that, i.e. on 03.07.2005, the sponsoring authority has sent a telegram to the
petitioner, informing her about the arrest and detention of the detenu under the Customs Act. The said telegram is available at page 65 of the paper
book. In the said telegram, sender''s name has been specifically referred and it reads as, Senior Intelligence Officer, 25, Gopalakrishna Iyer Road,
T. Nagar, Chennai"";
More so, by whom the detenu was arrested was also referred to and it reads thus:
Shri Mohd.Arif, S/o.Mohd Akup was arrested by the Directorate of Revenue Intelligence, T.Nagar, Chennai-17 on 02.07.2005 under Customs
Act 1962 and produced before the Addl.Chief Metropolitan Magistrate, E.O.II, at his residence on 03.07.2005 and remanded to judicial custody
at Central Prison, Chennai. This is for your information.
So, from the said telegram, it is clear that the person, by whom the detenu was arrested, has revealed his identity and address. If that be the case,
the petitioner ought to have sent a telegram to the proper person with a clear address instead of addressing to ""1. Government of Tamil Nadu, Fort
St.George, Chennai-600 009 and 2.Director, Directorate of Revenue Intelligence, New Delhi"" without mentioning the concerned department.
Now, let us look into the principles laid down in the rulings referred by the senior counsel for the petitioner. In the decision M/s. Sil Import,
USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, , it is held that mode of sending notice cannot be restricted to post or messenger and it can
even be sent by fax. In the decision cited in 1989 SCC (Cri) 153, it is held that What weight the contents and assertions in the telegram should
carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There
would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not
been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is
excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very
well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes
materiality. It is held in 1999 SCC (Cri) 1469 that sending representation by speed post is enough to be taken note of by the detenu.
The observations of the said decisions referred to above are that the representations of the detenu should be considered with an unbiased mind
and closest and most zealous scrutiny; but since the detaining authority failed to consider these relevant aspects, would vitiate the detention order.
The right of representation under Article 22(5) is a valuable Constitutional right and is not a mere formality, the same has to be considered carefully
for the purpose of deciding whether the detention is justified or not. It is settled law that consideration of representation must be effective and
purposeful.
Against these decision, the decision relied on by the learned Government Advocate in District Magistrate and Another v. R. Kumaravel 1994
SCC (Cri) 229 is relevant to decide the issue on hand.
Any material received by the District Magistrate in the shape of telegrams could not be taken into consideration by him in the absence of any
subsequent communication confirming the same. We are, therefore, of the view that the orders of detention could not be challenged on the ground
that some material contained in a telegram simpliciter was not taken into consideration by the detaining authority.
The principle laid in the said decision is directly applicable to the facts on hand. In this case, no written representation followed the telegram. So,
the telegram, stated to have been sent by the mother of the detenu is not valid in the eye of law as no written representation followed the same.
Apart from that there is no proof to show that the said telegram was really received by the concerned authority. Therefore, we are of the
considered view that the contention of the learned senior counsel for the petitioner cannot be sustained and the same is rejected.
Learned senior counsel for the petitioner next contended that the valuation arrived at by the DRI is not in accordance with the procedure
contemplated under Customs Act and the value declared by the detenu has to be taken into consideration and there cannot be any assumption in
respect of valuation of goods. It is a serious non-application of mind to accept a valuation, without knowing its basis and on this ground, the
detention order is liable to be quashed.
The learned Government Advocate has rightly contended that the goods brought by the detenu was valued according to Section 79 of the
Customs Act and that value cannot be assessed under Chapter VII of the Customs Act as stated by the learned counsel for the petitioner as it
relates to clearance of imported goods and export goods. In this context, the learned Government Advocate brought to our notice the decision
rendered by this Division Bench in H.C.P. No. 1126 of 2005 dated 15.02.2006, in which the same issue has been considered and rejected the
contention of the detenu. The finding in the said case reads as follows:
As regards the valuation, it is the grievance of the petitioner that the department has not furnished the required details in spite of her
representation to furnish the same. In the counter affidavit filed by Additional Secretary to the Government, Public (Law and Order() Department,
Secretariat, Chennai-9 in para 7 it was specifically stated that the ""valuation of subject goods have been done as per the guidelines and on seeing
the physical condition of the goods and thus the valuation is fair and correct and hence no independent enquiry was warranted....."". Though
reference was made from Valuation Rules, 1988, as rightly pointed out by the learned Government Advocate, the same are not applicable to the
cases of baggage of passengers, which are governed by Baggage Rules, 1998.
Chapter VII of the Customs Act, 1962 deals with clearance of imported goods and export goods. Section 55 makes it clear that the provisions
of this Chapter (Chapter VII) are not applicable to (a) baggage and (b) goods imported or to be exported by post. It is also relevant to note that
as per proviso to Sub-section (1) of Section 14, the price shall be calculated with reference to the rate of exchange as in force on the date on
which a bill of entry is presented u/s 46, or a shipping bill or bill of export presented u/s 50. The detenue has not placed any document much less
bill of entry. This fact is not disputed. In such a circumstance, by applying the guidelines and on seeing the physical condition of the goods, the
department valued the goods which cannot be considered as arbitrary or unfair"".
The principles laid down in the said HCP are directly applicable to the facts on hand.
Moreover, in this case, at the time of filing bail application on behalf of the detenu, some invoice was produced to show that the value of the
articles assessed by the detenu shall not be more than Rs. 3 lakhs. It is borne out by the record that no such invoice was shown by the detenu at
the time of baggage check; more so, if the detenu was in possession of the said invoice, he would have produced the same before the said Officer
and proved that baggage he brought was only for personal use and not for trade. Further there is no reference about the invoice in the seizure
mahazar. Even at the time of remand, the detenu has not stated anything about the possession of the said invoice to the remanding Magistrate to
show his innocence. In view of the narration of events coupled with the principles laid down in the said ruling as well as in non possession of the
invoice at the time of arrest, we are of the considered view that on seeing the physical condition of the goods, the department valued the goods,
which cannot be considered as arbitrary or unfair. Even otherwise, according to the counter of the first respondent, it is found that the cost of the
articles fixed by the concerned authority is far less than the cost price under the invoice relied by the detenu. For Example, unit value of item LC
864508 V chips has been taken as Rs. 90/- per piece whereas the value in the invoice No. 4341 submitted along with the bail petition in
Singapore $4.50 which conversion will amount to Rs. 120/- approximately. Similar is the case with other goods also. Despite of that, a faint
attempt made by the detenu to deceive two forums, namely, one before the remand Magistrate and the other before us, claiming, the invoice
obtained from outside while he was under custody to be genuine to set aside the order of detention which was rightly exposed by the learned
Government Advocate, by bringing to our notice, the various materials available in the paper book to reject the invoice. It is worthy to note that the
order of detention was not based on the mis-declaration of the baggage by the detenu but on the basis of materials collected in pursuance of the
statement made by the detenu leading to his smuggling activities, by the concerned authority. Hence, the contention of the learned counsel for the
petitioner cannot stand.
The learned senior counsel for the petitioner then contended that the detenu has made a proper declaration of the value of the goods and the
same was not considered by the Inspecting Officer, which fact was not taken note of by the detaining authority and hence, the detention order is
liable to be set aside.
Against this contention, the learned Government Advocate brought to our notice about the seizure mahazar, arrest intimation, declaration form
of the detenu, confession statement, etc., and contended that the Inspecting Officer had made a proper investigation of the baggage of the detenu
and rightly charged him under the relevant provisions of Customs Act.
Now, let us look into the seizure mahazar, confessional statement of the detenu etc. to find out whether the detention order is in accordance
with law. The seizure mahazar, which is available at page 8 of the paper book, reads as follows:-
Sl. No. Item Description Qty. Unit Price Total Value
(CIF)
I. Checked in baggage Tag. No. SQ 134515 Black Colour Bag
Sony Car Radio CDX R34105
Compact Disc with Accessories
16 5600 89600
Checked in baggage Tag. No. SQ 134514 Encora Multi Colour Zipper bag
Aiwa Walk Man Model RM 186
44 300 13200
Aiwa Walk Man Model TP-S350
48 500 24000
Panasonic MD 9000 EN Digital Video Camera
2 36000 72000
Sony Digital-8 (Handy Cam) DCR TRV 480 E PAL
3 15000 45000
Checked in baggage Tag. No. SQ 134513 Zipper bag
1 Sony Walkman Model VIP-X33
50 500 25000
2 Aiwa Walk Man HS RM 186
22 300 6600
3 SZM-14 ITV-for chips
100 pieces 345 34500
4 KC 864 508 V chips
20 pieces 90 1800
5 AN 80T05 chips
30 pieces 150 4500
6 AN 80T54 chips 50 pieces 145 7250
7 SMR-40000 C - B FAW Chips
250 pieces 480 120000
8 LA 7841 - 6C - 7 chips
500 pieces 62 31000
9 Sharp PC 817 chips 10000 pieces 10 100000
10 MUC 2021421 Q Chips
3000 pieces 19 57000
Hand Baggage Zipper Shoulder bag
1 Nokia Mobile Phone - 6630
2 15000 30000
2 Sony Digital Video camera DCR- TRV 285 E PAC Digital-8
3 15000 45000
3 Sony Digital Video Camera DCR- TRV 480 E PAC
2 15000 30000
Total value Rs. 7,36,450/-
The declaration of the detenu regarding his baggage is available at page 12 of the paper book. He has declared that he has brought about 200
Nos.of walkman and 8 Nos.of camera. It shows that the detenu has not made proper declaration of the baggages brought to India. The statement
of the detenu is found at page 38 to 46 and the English translation of his statement is available at page No. 47 to 49. The detenu has stated before
the Senior Intelligence Officer, DRI, Chennai on 02.07.2005 that he brought the goods to India only for wrongful gain. He has also stated that
during 2002, he had paid Rs. 50,000/- as customs duty once and he has carried trade articles without payment of duty on 30 occasions. The
relevant portion of the statement reads as follows:
I bring electronic goods for the carriers, I was paid Rs. 2500/- to 5000/-. So far I would have travellled around 30 times to Singapore and brought
electronic goods in my name. As far as possible I try bring the electronic goods without Customs declaration and without paying customs duty.
During 2002, I had paid Rs. 50000/- as customs duty once..... I came to know at the Chennai Airport that your officers have come and in the
Customs declaration, I declared the value of the goods carried by me as Rs. 3,00,000/- containing 200 walkmans and 8 cameras. I took my 4
baggage and went to Table as per a Customs Officer instructions.... On examination, from the baggage brought by me, 16 Sony car stereo, 164
Sony & Aiwa walkman, 10 video camera, 2 Nokia cell phones, 13950 Radio/TV IC chips were found. The goods were totally valued as Rs.
7,36,450/- and as same were brought against the provisions of the Customs Act as baggage, the officers recorded the proceeding under mahazar
and the goods, air ticket, baggage tag, etc., were seized....
The possession of the above mentioned articles would prove that they were not meant for personal consumption but only for otherwise
exposing his smuggling activities by evasion of customs duty. The remand order, which is found at page 63 reads as follows:
Accused produced at 12.30 P.M.today at my residence. No complaints of harassment or ill treatment at against the officials. Perused the remand
report, seizer Mahazar and statements. Prima facie case exist for remand pending investigation. Hence the accused is remanded to judicial custody
till 15.7.2005. Passport No. E 3923258 dated 30.1.2003 retained in the court custody.
Even before the remand Magistrate, the detenu has not stated that the baggage were brought only for personal consumption and not for trade.
He has not even mentioned anything about the possession of invoice. So, the narration of events would show that the detaining authority has taken
note of all the relevant facts placed before him, satisfied and passed the detention order. Such a detention order cannot be stated to be faulted
with. So, we are of the view that the submission of the learned senior counsel cannot sustain.
The learned senior counsel for the petitioner finally submitted that arrest of the detenu was intimated belatedly and, as such, the detention order
is liable to be set aside. We are unable to accept the contention of the learned senior counsel for the petitioner in view of the fact that immediately
after arrest and remand by the Judicial Magistrate, the petitioner (mother of the detenu) was informed by telegram, which is evident at page 65 of
the paper book.
In the light of what is stated above, we do not find any valid ground for interference. Accordingly, this petition fails and is dismissed.