G.F. Couto, J.
1. The petitioner is the wife of one Devchandbhai Kalanbhai Tandel who is detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (hereinafter called the COFEPOSA). She challenges, in this writ for Habeas Corpus, the Detention Order dated 23rd February, 1984 issued by the second respondent under section 3(1) of the COPEPOSA purportedly, to prevent him from engaging in concealing smuggled goods and from engaging in keeping smuggled goods, as well as the declaration dated 15th February, 1985 made by the fourth respondent under section 9(1) of the COFEPOSA and its constitutional validity. The said Detention Order as well as the grounds for the detention were issued on 23rd February, 1984 and actually served on the detenue on 2nd February, 1985.
2. As disclosed in the grounds of detention, the basis for issuing the said detention order is that on 14-11-1983, on receipt of information that some contraband goods like Video Cassette Recorders, watches, gold etc., have been concealed in an iron tank fitted in the compound of the detenue's residential premises, the Customs Officers went to the spot and detected one iron tank besides the cement water tank in the rear portion of the residential house of the detenue. The said iron tank was apparently connected with the cement tank by a pipe line and on dismantling the pipeline and on removing the iron tank, it was found a pit under which some steps had been built by using iron bars. Seven packages wrapped with paper and plastic were found in the said pit and on detailed examination, the said packages were found to contain 7 Video Cassette Recorders, made in Japan and worth Rs. 1,40,000/-. Investigation was carried out and finally, the Customs Authorities arrived at a finding that the said Video Cassette Recorders were belonging to the detenue.
3. The petitioner challenges the aforesaid Order of Detention and the declaration on several grounds, particularly on the ground, that the Detention Order as well as the grounds of detention were served on the detenue in a Gujarati translation which is, in material and substantial portions, in variance with the original English version thereof, a fact that has prevented the detenue from making a proper and effective representation against it. Secondly, the petitioner's case is that some relevant material which was required and necessary for the formation of the subjective satisfaction of the Detaining Authority was not placed before it. Particularly, sufficient evidence was not placed before the said Detaining Authority in order to establish that the Video Cassette Recorders were smuggled or illegally brought into the country. Finally, the constitutional validity of section 9(1) of the COFEPOSA is being challenged. Mr. Karmali, the learned Counsel appearing for the petitioner, has however rested his case on the second ground only, because on one hand, he submitted that the question of the constitutional validity of section 9(1) of the COFEPOSA is pending before the Supreme Court and on the other, the first ground of challenge, namely, that the Gujarati version of the Detention Order and the grounds of detention is not accurate, is not necessary for the disposal of this petition. Therefore, the learned Counsel restricted himself to address the Court only on the ground that the Detention Order is vitiated inasmuch as sufficient material was not placed before the Detaining Authority, in order to satisfy it that the Video Cassette Recorders seized by the Customs Authorities had been smuggled into the country.
4. Dealing with this ground, the learned Counsel submitted that the Video Cassette Recorders were neither notified under section 123 nor under section 11-B of the Customs Act at the time, the seizure was made by the Customs Authorities. In fact, it was only on 20th July, 1984 that Video Cassette Recorders were brought within the purview of the provisions of section 123 and section 11-B of the Customs Act by the Notification bearing No. 204/84-CUSTOMS-G.S.R. 523(E) and No. 205-84-CUSTOMS-G.S.R. 524(E). The seizure took place on 14th November, 1983 and hence, it was the duty of the Customs Authorities to prove that the said Video Cassette Recorders had been smuggled, since such burden was not lying on the detenue. Admittedly, the learned Counsel further contended, the relevant material necessary to subjectively satisfy the Detaining Authority that the said Video Cassette Recorders had been smuggled into India had not been placed before it and as such the Order is vitiated. In this connection, the learned Counsel placed reliance on the decision of this Court in the case of Smt. Shobha Ramesh Parekh v. The State of Maharashtra and two others, : 1982(1)BomCR669 wherein a Division Bench of this Court has made it clear that if material and relevant circumstances are not placed before the Detaining Authority so as to enable it to form its subjective satisfaction, then, the detention order is vitiated.
5. It was however, contended by Mr. Nadkarni, the learned Government Advocate, that as it was clear from the affidavit-in-reply filed by the Customs Authorities, though the Video Cassette Recorders were not notified and were not brought within the purview of the provisions of section 123 of the Customs Act at the time of the seizure in question, nonetheless, Video Cassette Recorders were prohibited goods under para 3 of the Imports (Control) Order No. 17/55 dated 7-12-55 issued under section 3(1) of the Imports and Exports (Control) Act, 1947. As per sub-section (2) of section 3 of the said Imports and Exports (Control) Act, all goods to which any order under sub-section (1) of section 3 of the said Act applies, shall be deemed to be goods, the import and export of which had been prohibited under section 11 of the Customs Act, 1962, and accordingly all the provisions of that Act shall have effect. The learned Counsel further submitted that Para 3(1) of the Imports (Control) Order, 1955 entails that no person shall import the goods specified in Schedule 1, except under and in accordance with the licence or a Customs clearance permit issued by the Central Government or by any officer specified in Schedule II. The Video Cassette Recorders had been specified in Schedule I of Chapter 92 and accordingly, the import of Video Cassette Recorders is prohibited under the said Imports (Control) Order, such prohibition being deemed to have been issued under section 11 of the Customs Act. Therefore, according to the learned Counsel, as section 11 of the Customs Act, as well as section 111(d), is applicable to Video Cassette Recorders and section 111(d) deals with confiscation of improperly imported goods, any import of the Video Cassette Recorders will make them liable to confiscation. He than urged that all the facts and this petition of the law were placed before the Detaining Authority, and therefore, it would be wrong to say that relevant material was not placed before the second respondent in order to enable him to form his subjective satisfaction. Finally, the learned Counsel contended that section 123 is merely procedural in natural and the question of onus probandi is entirely irrelevant in the facts and circumstances of the case.
6. It is not necessary for us to make here a reference to the various authorities on the point. In fact, it suffices to say that it is now well settled that if any material that is relevant for the formation of the subjective satisfaction of the Detaining Authority is not placed before it, the detention order would be vitiated. Thus, the question that falls for our determination is whether the non-placing before the Detaining Authority of the necessary material establishing that the seized Video Cassette Recorders were smuggled into the Country constitutes a material infirmity which ultimately vitiates the impugned Detention Order.
7. Admittedly, at the time of the seizure in question, Video Cassette Recorders were not notified goods, either under section 123 or section 11-B Video Customs Act, 1962. Therefore, the onus of proving whether or not, the Video Cassette Recorders seized by the Customs Authorities were smuggled into the Country was squarely lying on the Customs Authorities. It is no doubt true that Video Cassette Recorders were brought within the purview of the prohibited goods under para 3 of Imports (Control) Orders, 1955. But the question is that the said Imports (Control) Order and the Imports and Exports (Control) Act, 1947 imposed only some restrictions on the import of the goods specified in the respective schedule. Thus, in a given case, it can happen that goods specified in the schedule to the said Imports and Exports (Control) Act and Order are imported into the territory of India after all the legal formalities prescribed in law had been complied with and as such, are not smuggled goods. This being the case, it is obvious that if such goods can be lawfully brought into the country, it would be necessary for the Customs Authorities to establish that the same goods were smuggled into the country or illegally brought into it so as to prima facie establish that a person found in its possession is involved in smuggling activities. It, therefore, necessarily follows that the evidence that the seized Video Cassette Recorders were actually smuggled into the territory of India constituted a very relevant and material circumstance to be placed before the Detaining Authorities for enabling it to be satisfied that the detenue was, in fact, involved in smuggling activities. We may, thus address ourselves to the admitted facts in order to find whether or not such important and essential material was placed before the second respondent.
8. It becomes clear from the affidavit sworn by Mr. K.N.S. Nair, Under Secretary (Home), Government of Goa, Daman and Diu that the Detaining Authority has only considered the legal aspects of the case, as placed before him by the Assistant Collector of Customs, to issue the impugned Detention Order. This flows from paragraphs 11 wherein it is specifically stated that reliance on the affidavit of the Assistant Collector of Customs at Bulsar is placed and it is further merely contended that the Detaining Authority has considered all the legal aspects of the case before issuing the Detention Order. Now, from para 2 of the affidavit of Shri Dayashankar, Assistant Collector of Customs, it is obvious that only legal submissions on basis of para 3 of the Imports (Control) Order, 1955 had been made before the Detaining Authority and no material of whatsoever nature was placed in order to satisfy the second respondent that the Video Cassette Recorders seized by the Customs Authorities were in fact, smuggled into the country by the detenue. In our view, this material was indeed absolutely necessary for enabling the second respondent to form his subjective satisfaction and opinion that the detenue was indulging in concealing smuggled goods, for without establishing the smuggled nature of the seized Video Cassette Recorders, the very basis to state that the detenue was indulging in concealing smuggled goods would be absent and missing. Hence, the failure of the Customs Authorities in placing such material before the Detaining Authority vitiates the impugned order of detention.
9. In the result, the rule is made absolute in terms of prayer (a). The detenu to be released forthwith if not required in connection with any other proceeding. There will be no order as to costs in the circumstances of the case.