TMI Blog1990 (7) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... Saurashtra Mail coming from Bombay were intercepted. They were taken to Central Excise Office, Jivabhai Mansion, Ahmedabad. Personal search of both of them was taken. As a result of the search two pieces of gold weighing 602.300 grams collectively valued at Rs. 1,93,639/- were found concealed in the sole of sandals worn by the detenu. Two small packets containing gold powder were also found on his person. On weighing the gold powder recovered from two packets it was found to be 3.400 grams collectively valued at Rs. 1092/-. Personal search of Smt. Kantaben N. Rana also resulted in the recovery of five packets containing ten pieces of gold totally weighing 3026.600 grams and 0.400 milligrams. The gold powder collectively valued at Rs. 9,73,047/-. On examination of the gold pieces and gold powder and after testing the same, an experienced goldsmith opined that the gold pieces and powder were having purity of 23.5 carats and they were made by melting foreign made contraband gold indicating their foreign origin. The total weight of gold bars and gold powder recovered and seized from the detenu and Smt. Kantaben Narandas was 3632.300 grams collectively valued at Rs. 11,67,778/-. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade sixteen trips and he had carried smuggled gold approximately weighing 2400 tolas valued at Rs. 60,00,000/-. He further stated that said Kantaben had accompanied him to Bombay on four occasions and Kantaben was being paid Rs. 150/- per trip as her remuneration, and fare amount etc. were being borne by the detenu. He further stated that financial transactions were to take place between Chandumama and Pravinbhai. He further confirmed the contents of the statement of December 28, 1987. 6. Smt. Kantaben N. Rana has also given her statement on December 27, 1987. She stated that the detenu was known to her since childhood and since last three to four months she was engaged in this gold smuggling business by the detenu and she had given her consent to do the smuggling business. She has admitted her visits to Bombay on December 25, 1987 for bringing gold biscuits and powder, details of which have been given hereinabove. She further stated that she had made such trip, three to four months back and had brought gold at that time also. 7. The grounds of detention also referred to statements of Chandulal Ranchhoddas Chokshi, Anil T. Desai, Manager of Purnima Guest House, Bombay, Miss Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Additional Chief Secretary had received the representation on February 22, 1989. Since gold was seized, the office of the detaining authority thought it proper to call for the remarks from the Collector of Customs and therefore sent the said representation to the office of the Collector of Customs and requested to offer comments. The Collector of Customs forwarded the representation to the Deputy Collector of Central Excise for offering his comments. The Collector of Customs thought it proper to adopt this course because the gold was seized by the Deputy Collector of Central Excise. The Deputy Collector of Central Excise submitted his reply on March 8, 1989. The Collector of Customs was on tour from March 8, 1989 to March 16, 1989. When he returned, the papers were placed before him and he in turn sent back the papers with his appropriate comments to the detaining authority who decided the same on March 28, 1989. In view of the aforesaid factual position prima facie explanation was necessary with regard to the period commencing from February 22, 1989 to March 8, 1989. This is the period taken by the Dy. Collector of Central Excise for offering his comments. Another period which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and requested for showing mercy and releasing him from detention. Ordinarily, the representation would be against detention. But this particular representation/mercy petition contained averments regarding the detenu s financial position and his pitiable position and the consequent sufferings by his family members. In view of these circumstances, if the office of the Deputy Collector of Central Excise and the office of the Collector of Customs thought it fit to inquire about the actual financial position of the detenu then it cannot be said that they have adopted an unusual or unnecessary course. In fact, that would show that the department had shown anxiety to see as to whether the financial condition narrated in the representation was such that it required any sympathetic consideration or not. If that be so, the position may be explained with appropriate remarks to the detaining authority. That appears to be the attitude adopted by the office of the Collector of Customs. It does appear from the affidavit-in-reply filed on behalf of the Collector of Customs that the office of the Collector of Customs has considered the representation as mercy petition and not as detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 79 of the Gold Control Act, 1968 was served upon the petitioner-detenu asking him to show cause as to why the gold seized should not be confiscated and why they should not be penalised under the relevant provisions of the Customs Act and the Gold Control Act. Learned Counsel for the petitioner submitted that the petitioner-detenu had submitted reply to the aforesaid show-cause notice on 1-8-1988 (Annexure-E to the petition), but the said reply was not placed before the detaining authority. Therefore, the relevant material which was favourable to the detenu has not been brought to the notice of the detaining authority and hence the subjective satisfaction arrived at by the detaining authority stands vitiated. It is an undisputed position that the reply submitted by the detenu to the show-cause notice has not been placed before the detaining authority and the detaining authority has passed the order of detention without going through the reply submitted by the detenu. However, we have examined the show-cause notice as well as the reply. The show-cause notice has been issued by the Additional Collector, Customs (Preventive), while the reply has been addressed to the Additional Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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