Muthumariappan vs The State of Tamil Nadu and The Union of India (UOI)

P. Sathasivam, J.—In this petition, the petitioner by name Muthumariappan, challenges his detention order dated 30.03.2006 passed by the

first respondent herein, detaining him u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(Central Act 52 of 1974).

Heard the learned senior counsel for the petitioner, learned Additional Public Prosecutor for respondents 1 and 3 and learned Additional

Central Government standing counsel for second respondent.

At the foremost, Mr. B. Kumar, learned senior counsel for the petitioner submitted that when the detenu disputed the value of the goods seized

by the Customs Department, even after the order of the Additional Chief Metropolitan Magistrate, E.O.I, Chennai to refix the value within 25 days

from the date of receipt of the order, the failure on the part of the officials to comply with the same vitiates the impugned order of detention. He

further contended that inasmuch as the valuation is material/jurisdictional aspect, detention order passed by the detaining authority without taking

note of the Circular issued by the Central Government and the directions issued by the learned Magistrate is liable to be quashed on the ground of

non-application of mind.

Elaborating the above contentions, learned senior counsel submitted that it is the definite case of the detenu that the seized goods were of lesser

value, but the officers assessed the same excessively. It is stated that the assessment of the officers is not supported by any cogent material and it is

contrary to the customs valuation. It is also brought to our notice that the detenu has requested the sponsoring authority to consider and revalue the

seized goods by way of representation, but the sponsoring authority failed to revalue the goods seized under mahazar. In this regard, learned senior

counsel for the petitioner has placed before us the order of the Additional Chief Metropolitan Magistrate, E.O.I, Chennai-8, dated 21.03.2006

made in M.P. No. 662 of 2006. The said petition was filed by the petitioner/accused/detenu seeking direction to the respondent, viz.,

Superintendent of Customs (Air) Prosecution Unit, Customs House, Chennai to revalue the goods under seizure in R.R. No. 5/2006 and the

learned Judge, by order dated 21.03.2006, accepted the case of the petitioner and issued direction to revalue the goods under seizure in R.R. No.

5/2006 within 25 days from the date of order.

It is not in dispute that the sponsoring authority has not revalued the goods as directed by the Additional Chief Metropolitan Magistrate. No

doubt, the learned Additional Public Prosecutor has brought to our notice that against the order of learned Additional Chief Metropolitan

Magistrate, the Department filed a Criminal Revision Petition before this Court. But, except copy of the grounds of revision, no other details are

available. In the course of arguments, learned Additional Public Prosecutor submitted that this Court has entertained the revision and ordered

notice on 19.07.2006. There is no doubt that the valuation of the goods brought into the country is relevant, because if it is below Rs. 5 lakhs, as

per the Circular, no arrest will be made. Added to this, as observed earlier, though an order was passed by the learned Additional Chief

Metropolitan Magistrate even on 21.03.2006, to revalue the goods under seizure within 25 days from the date of order, the fact remains, the

sponsoring authority neither revalued the same within the time as directed by the Court nor obtained an order staying the order passed by the

learned Additional Chief Metropolitan Magistrate. We have already referred to the fact that in the representation a specific reference has been

made regarding the excess valuation of goods by the Customs Officers. In the representation, the detenu has specifically stated that the detaining

authority admitted the value as fixed by the Customs Department being on the higher side. In the same representation, the petitioner has pointed

out that in another case, viz., O.S. No. 287 of 2005, very same Officers fixed the value of Nikon Speed light SB 800 Flash gun with accessories

at Rs. 7,100/-, whereas the same property has been valued at Rs. 9,000/- per piece in the case of the detenu. He also referred to the order of the

Additional Chief Metropolitan Magistrate, Chennai directing the sponsoring authority to refix the value of the seized goods. In the reply dated

17.07.2006, the State Government without adverting to those specific details, has merely stated that his representation was duly considered and

rejected as there was no valid ground to accept.

The Courts have oft-repeatedly held that consideration of representation is not an empty formality, particularly when several details, such as

orders/valuation fixed in respect of similar goods by the authorities are referred and it is but proper on the part of the Government to get the

remarks from the officers concerned and pass a speaking order in one way or the other. We are satisfied that such recourse has not been followed

in the present case. As observed earlier, even the Department has not complied with the order of the Additional Chief Metropolitan Magistrate,

but only filed a revision before this Court belatedly wherein no interim order has been obtained.

The learned senior counsel for the petitioner has also brought to our notice, the notification of the Government of India, Ministry of Finance,

Office of the Commissioner of Customs (Airport) in O.S. No. 287 of 2005 - AIR dated 30.06.2005, wherein the Joint Commissioner of Customs

(AIR), Anna International Airport, Chennai has fixed the value of Nikon Speed light SB 800 Flash gun with accessories at the rate of Rs. 7,100/-

per unit, whereas the same product was valued at the rate of Rs. 9,000/- in the case of the detenu. For that, there is no explanation at all on the

side of the respondents. It is also brought to our notice that the above referred order of the Joint Commissioner of Customs dated 30.06.2005

became final and the Customs authorities accepted the said valuation. In this regard, it is brought to our notice the decision of the Calcutta High

Court in the case of Ghanshyam Chejra Vs. Collector of Customs, , wherein it is held that,

... Once the Customs Authorities have accepted the valuation, they should be bound by their precedents and estopped from acting to the

contrary.

We are in agreement with the said conclusion.

It is also relevant to note that even in the grounds of detention in para 1 (xvi) the detaining authority has stated,

that the Government have taking into consideration the averments / contentions contained in the representations and bail petition, but from the

materials placed on record, the Government are satisfied that the same are baseless, devoid of merit and hence the Government reject the same

except the portion regarding valuation of goods.

The above conclusion amply shows that in so far as the valuation of goods is concerned, the detaining authority also accepted that the assessment

by the Department is excessive and not correct.

All the above mentioned material aspects have not been duly considered by the detaining authority while passing the order of detention. In view

of the above said infirmities, we are satisfied that the detention order is liable to be interfered with. On this ground, the order of detention impugned

in the petition is set aside and the detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with any other

case.