LexALPESH NAVINCHANDRA SHAH versus STATE OF MAHARASHTRA AND ORS.
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JI/ ALPESH NA VINCHANDRA SHAH A v. STATE OF MAHARASHTRA AND ORS. FEBRUARY 26, 2007 [DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ] B ~ Constitution of India-Articles 21 & 32-Customs Act, 1962-Sections 12 7 B to 12 7 J-Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Sections 3(1) and 8(a)-Detention Orders c issued to detenus, who were engaged in smuggling activities-Settlement Commission granted immunity to the detenus from prosecution under the Customs Act and the Penal Code, 1860-Detaining Authority proceeding to detain the detenus under the Detention Orders-Writ Petition for quashing the Detention Order-Held, on law, the order of the Settlement Commission granting immunity from prosecution under the Customs Act have no bearing D on the Detention Order passed by the State under the Prevention Act- However, on facts, since the Detention order of one of the detenus was •. revoked by the State since there was no sufficient cause for his detention, the Detention order of the petitioner-detenu, who is similarly placed, is i1uashed. Petitioner and his brother were arrested by Intelligence Officers for E mis-declaration of import consignments and evading customs duty thereby. Respondent - authorities issued two detention orders under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) and issued a show cause notice to both of them. Pursuant to the show cause notice, the petitioner and his brother made an F J ~ application under section 1278 of the Customs Act, 1962 for settlement before Settlement Commission. The Settlement Commission allowed the application on payment of customs duty under section 127H of the Customs Act and granted immunity to the applicants from payment of any penalty and prosecution under the Customs Act and the Penal Code, 1860. The Detaining authority proceeded to detain the petitioner in view of the Detention Order G ' l. issued earlier under COFEPOSA Act. Hence, the Writ Petition under Article 32 of the Constitution of India filed by the petitioner before this Court to quash the Detention Order. 223 H 224 SUPREME COURT REPORTS [2007] 3 S.C.R. A The petitioner contended that the execution of the Detention Order by respondent authorities despite the unconditional immunities granted by the Settlement Commission under section 127H of the Customs Act, 1962 is mala fide; that the Detention Order is contrary to the spirit of settlement and legislative intent behind the scheme of Settlement enacted under the Customs B Act; and that the detention would result in violation of Article 21 of the Constitution oflndia. Respondent-State contended on merits that the order of the Settlement Commission granting immunity from prosecution under the Customs Act, 1962 have no bearing on the order passed by the Detaining Authority under C the COFEPOSA Act; that the Detention Order cannot be revoked under section 127(F) of the Customs Act; and that the orders of the respective authorities cannot bind or influence each other. The respondents, however, conceded at the time of hearing before this Court that the Detention Order issued against the brother of the petitioner was revoked on the basis of a report of Advisory Board constituted under the COFEPOSA Act. D Allowing the Writ Petition, this Court HELD: 1.1. The Settlement Commission was constituted with the aim and objective of settling the tax evasion issues and by virtue of disclosure by tax offender; they gain immunity from fine/penalty which is otherwise E mandatory under the provisions of tax laws. But, such opportunity is only extended to one tax offender but not available to habitual smugglers. For the persons involved in smuggling activities, other than the provisions made for the prosecution under the Customs Act, 1962, an equal deterrent is emphasized under the provisions of the COFEPOSA Act, 1974. Such F preventive detention prohibits smugglers from indulging in further smuggling activities. The investigation reveals the consistent involvement of the petitioner and his brother in smuggling activities, therefore, the Detaining Authority, on the basis of evidence, felt it necessary to issue the detention orders in respect of both the detenus in order to prevent them from pre-judicial activities in future. Accordingly the impugned Detention Order is justifiable in the eyes G cf law. [Para 46]
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