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TMI Blog2010 (6) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... shmukh and the petitioner has prayed for a writ of habeas corpus for the release of his brother, the detenu. The detention order was served on the detenu on 17-8-2009 and the detention period will expire on 16-8-2010. 2. The order states that it has been passed with a view to preventing the detenu in future from smuggling goods, abetting the smuggling of goods, engaging in transporting smuggled goods and harbouring persons engaged in smuggling goods and all these activities fall under Clauses (a), (d), (e), (f) and (h) of Section 111 of the Customs Act, 1962. 3. On 19-2-2009 on receipt of information that smuggled High Speed Diesel was stored in two tugs namely MT Baaz and MT Mansi, officers of the Commissionerate of Customs int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded on 25-2-2009 and 19-3-2009 under Section 108 of the Customs Act, 1962. In the said statements, he had admitted that HSD of quantity approximately 61.294 K. Litres was found stored in tug MT Baaz, Registration No. BDR-IV-0063, but he could not produce any document in support of HSD found in his tug. He had further claimed that after a tug was repaired he had handed it over to Mr. Gopal Shekhar Sharma for the purpose of towing business with an understanding that he would get 60% of the profit and said Mr. Gopal Shekhar Sharma had given Rs. 3.75 lakhs as cash required for furnishing the bank guarantee. He did not know the address and mobile number of Mr. Gopal Shekhar Sharma and had not made any agreement with him. The detenu was arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or transported from a foreign country; and (d) there was no material to show that the detenu was a habitual offender. 7. As per Section 3(1) of the COFEPOSA Act an order of detention can be passed with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from, (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) ......... (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34." It is thus clear that to support the order of detention the basic requirement is that the confiscated goods were brought from a place outside India and they were imported by sea or air or were brought within the Indian Customs waters for the purpose of being imported contrary to any prohibition imposed by or under the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act was not applicable. As rightly pointed out by Mrs. Ansari, the order of detention cannot be supported on the basis of hearsay evidence and on the contrary in fact the proof in support of the detention order is required to be of high standard when it comes to taking away the personal liberty of a citizen. When there is no material to point out that the HSD was smuggled, it could not be said that the detenu had engaged in smuggling of goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping the smuggled goods and, therefore, there was no material to invoke the powers under Section 3(1) of the COFEPOSA Act. The impugned order of detention is, therefore, unsustainable in the absence of any such m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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