TMI Blog1998 (10) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... passengers after security check for boarding flight of Singapore Airlines SQ 421 scheduled to depart at; 10.35 p.m. At 10.30 p.m. the detenu approached the security for clearance. The hand bag which he was carrying was put on X-ray machine for screening. After completing the formalities connected with the security check-up, he approached the X-ray machine to collect the same. The officers who found his movements to be suspicious enquired about the contents of hand bag. Ultimately, on examining it, they found four boxes of sweets inside it. They found in the said boxes US $ 6,00,000 equivalent to ₹ 2,25,30,000. On the person of detenu they found Singapore $ 102 equivalent to ₹ 2600. Since the detenu did not have the required legal documents, the said currency was seized. On 8-4-1997 and 9-4-1997, his statement under Section 108 of the Customs Act was recorded. He was further interrogated under the said provision on 21-4-1997. In the said statement he stated that four boxes of sweet were given to him to be carried to Singapore and the US Dollars seized were concealed in them. A perusal 6f the grounds of detention also shows that the detenu was apprised of his right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reply dated 27-10-1997 was not a vital document and would not have weighed in the detenu's favour, even had it been placed before him in arriving at his subjective satisfaction. Ground No. 4(x) has been replied to in para 2 of the return of Mr. V.V. Sarma. In the said paragraph, he has averred that since the detenu had forwarded the reply to the show cause notice dated 5-9-1997 to the Commissioner of Customs (Airport) who is an independent adjudicating authority and had not forwarded a copy of the same to the sponsoring authority, the sponsoring authority was not aware of the detenu's reply dated 27-10-1997 to the show cause notice and consequently could not forward the same to the detaining authority. 6. We have examined the averments contained in ground 4(x) of the petition and the reply furnished to it in the two returns mentioned above. We are constrained to observe that we do not find any merit in the averments contained in the two returns filed on behalf of the respondents. We have no compunction in observing that the averment in para 2 of the return of Shri V.V. Sarma to the effect that since the detenu's reply to the show cause notice dated 5-9-1997 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs :---- (a) that the foreign currency of US$ 6,00,000 (Rs. 2,10,32,478.60 as realised by S.B.I.) under seizure was attempted to be smuggled out of India illegally and thus appears to be liable to confiscation under Section 113(d) and Section 113(h) of the Customs Act, 1962 read with Section 13(2) read with Section 67 of Foreign Exchange Regulation Act, 1973. (b) Slid Sayeed Anees Hyder Rizvi, Firoz Ebrahim Juneja, Mohammed Ishaw Jan Mohammed Memon and Mansukh Ganeshmal Sanghvi, have individually and collectively conspired to smuggle the said Foreign Currency out of India in contravention of the provisions made under Section 113(d) and Section 113(a) of the Customs Act, 1962 read with Section 13(2) and Section 67 of Foreign Exchange Regulation Act, 1973 and have therefore rendered themselves liable to penalty under Section 114 of the Customs Act, 1962. A perusal of the grounds of detention, which we have extracted in some detail earlier, shows that the detention order under Section 3(1) of the COFEPOSA Act was clamped against the detenu on account of recovery of foreign currency of US $ 6,00,000 (Rs. 2.10,32,478.60 as realised by S.B.I.). 8. When the reply of the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the show cause notice was not a vital document. Secondly we have earlier extracted the contents of the show cause notice and we find its main content is that the detenu should explain the recovery of foreign currency US $ 6,00,000 made from him. This we find to be the basic fact in this case; a fact which resulted in the issuance of the impugned detention order against the detenu. Since this basic fact was contained in the show cause notice and the detenu repudiated this in his reply dated 27-10-97 both the show cause notice and the said reply were vital documents. 11. Mr. Bagawe also contended that the burden of detenu's (sic) song in his reply dated 27-10-1997 was his retraction and since the said retraction was contained in the statements made by the detenu on 9-4-1997 and 17-4-1997 before the Metropolitan Magistrate and the said statements had been considered by the detaining authority, non-placement of the detenu's reply before the detaining authority and its non-supply to him was of no consequence in law. We regret that we cannot subscribe this contention for two reasons :- Firstly, it would be a over simplification to describe the reply of the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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