Home Case Index All Cases Customs Customs + HC Customs - 2018 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (11) TMI 1887 - HC - CustomsSmuggling - actual detention was made after a long lapse of time of about two years - no live-link to detain the detenu as he has not been involved in any case subsequent to the passing of Ext.P1 detention order - contradictions in the detention order - improper communication of the order of detention - violation of the first facet of Article 22(5) of the Constitution of India - HELD THAT:- The alleged transaction is not a business contract, which would be executed in accordance with a written agreement as per law, revealing the party's involvement in the smuggling activity. Smuggling of contraband is always done stealthily, without the real operators coming to the fore. They would always use gullible persons in impecunious condition to act as carriers for smuggling of Gold. There is absolutely no doubt that the person, who has been apprehended did not have any business, whatsoever, to fly frequently to UAE. It was only once that he was apprehended and his interrogation led to the involvement of the detenu indulging in abetting of smuggling Gold from UAE to India - The statements of all those witnesses would indicate the involvement of the detenu Faisal P.A. which has resulted in 113 KGs of Gold being smuggled into India not only by the detenu but also his brother Noushad P.A. based in Muvattupuzha, who was actively involved in recruiting persons as carriers of Gold. The said Noushad was involved in arranging the tickets for the carriers trough the aforementioned travel agency and was also proceeded against under COFEPOSA Act. An adjudication under the provisions of the Customs Act, 1962 as well as under the COFEPOSA Act does not require the standard of proof, which is normally required for the conviction of a person who stands on trial before a criminal court for whatever offence he has been charge-sheeted against. Adjudicatory process in a preventive detention is only a fact finding process by which the authorities need to be satisfied subjectively, that the person against whom the adjudication is initiated has been involved in actual smuggling or abetting in the smuggling of contraband. No proof beyond reasonable doubt is essential for the passing of an order of detention - argument of the learned Senior Counsel that the statements recorded by the Investigating Officers would only have the effect of statements recorded under Section 161 of the Code of Criminal Procedure and that an order of detention could not be made relying solely on such statements recorded by the investigating authorities as they are not substantive evidence and could only be used to contradict the witnesses in the course of trial cannot also be countenanced. We cannot discern a snapping of the livelink here, especially since the accused was absconding despite repeated summons. Petition dismissed.
|