TMI Blog1982 (6) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter at Nasik Road Central Prison, Nasik. On the same day he was also served with the grounds of detention. 3. The detenu's representation to the State Government dated 18-12-1982 was rejected on 2-1-1982 and that to the Central Government was rejected on 24-12-1981. Hence this petition. 4. As is apparent from the grounds of detention (Annexure 'D' to the petition), the order of detention was based on an incident, when during the search of the detenu's flat by the Custom Officers on 7-9-1981 various types of luxury goods such as cameras, projectors, photographic colour firms, wrist watches, etc. of foreign origin and silver bars weighing 12.004 kgs. of the total market value of ₹ 249631 were seized. The Detaining Authority on the basis of the statement made by the detenu on 17th and 18th September, 1981 and of the detenu's brother one Hemant dated 7-9-1981 alleged that the said goods were smuggled goods and the detenu was illegally acquiring, storing and disposing of goods of contraband nature. The detenu in his statement recorded on 17th and 18th September, 1981 had, inter alia, stated that he was doing the business of purchasing foreign goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant grounds. 8. Affidavits-in-reply have been filed by the Detaining Authority as well as by the Customs Officer. Petitioner has also furnished to the Court certain complication of documents. 9. Firstly, dealing with the goods covered under Annexure H to the petition of the approximate market value of ₹ 1,32,141/- forming part of grounds (ii) to (iv) of the petition it is not disputed that the said goods are neither covered under Chapter IVA or section 123 of the Customs Act so that the burden of proving that the said goods were smuggled good was on the department. 10. The Detaining Authority in its affidavit-in-reply does not dispute the facts that the goods mentioned in Annexure 'H' to the petition which were seized from the detenu's house did not fall under Chapter IVA or section 123 of the Customs Act and that it was necessary to prove that they were smuggled goods. It cannot be disputed that such a burden lay on the department. The Customs Officer had in his affidavit stated that if the Customs Authorities established that the goods were smuggled goods they were liable to confiscation. 11. The only basis on which the Detaining Authority had h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1981 in respect of one projector. According to him since the detenu had in his statement dated 18-9-1981 spoken about production of the cash memo and that it was shown to the Detaining Authority before passing the order he was aware of the production of the cash memo. He however has denied the contention that by virtue of non-production of the said cash memo before him before passing the order of detention had not impaired his subjective satisfaction. The said explanation of the Detaining Authority cannot be accepted. Firstly, the said cash memo was a material document concerning the said projector. Admittedly the said document was not placed before there Detaining Authority and he could not be said to have known its contents and, therefore, considered the same. A mere knowledge that the detenu in his statement had referred to the said document could not amount to consideration thereof by the Detaining Authority. It is also clear that non-consideration of the said document has shown non-application of mind on the part of the Detaining Authority affecting his subjective satisfaction, for if he had really considered the said cash memo, he would not have included the said projector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n adversely affected. 19. The same is the case as regards the other item viz. tape recorder while admitting that the letter dated 21-9-1981 of Shri Shah, the report dated 21-9-1980 and the letter dated 26-4-1981 from M/s Bennet Company were not placed before the Detaining Authority, the Detaining Authority in this affidavit has gone as to state : I say that the said letter dated 21-10-1981 is in respect of one item of Stereo Cassette Recorder valued at ₹ 6000/- while the total value of the foreign goods seized from the detenu is ₹ 2,17,011/-. In view of this and in view of the fact that I had taken into consideration the detenu's explanation in respect of the said stereo recorder, even if the said letters and the bill were placed before me while considering the case of the detenu they could not have affected my subjective satisfaction adversely. 20. It cannot be disputed that the receipts and correspondence in respect of the said two items of goods were material documents for considering whether the said two items were smuggled goods. The fact that the said documents were not placed before the Detaining Authority, that therefore, he had no knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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