N.K. BAPNA versus UNION OF INDIA AND ORS.

Citation: [1992] 3 S.C.R. 267 · Decided: 14-05-1992 · Supreme Court of India · Bench: S. RANGANATHAN · Disposal: Dismissed

Judgment (excerpt)

N.K. BAPNA 
·A 
~ 
v. 
UNION OF INDIA AND ORS. 
MAY 14, 1992 
[S. RANGANATHAN, V. RAMASWAMI, YOGESHWAR 
B 
... 
DAYAL, JJ.] 
/ 
~ 
Constitution of India, 1950: 
Articles 21, 22 and 32--l'reventive Detention-Detention order- c 
Whether could be challenged even before service of the order on the 
detenu-Clai,;,s of the State and fundamental right of the citizen to be 
'balanced. 
Conservation of Foreign Exchange & Prevention of Smuggling Activities 
Act, 1974: 
D 
Section 3(1)-Goods imported by company and declared to customs 
authorities-After assessment to duty and clearance kept in bonded 
warehouses under lock and key of customs officials-R.emoval or abetting 
removal by Managing Director, without pennission of proper officer-Whether 
constituted smuggling-Detention ordeH..egality of. 
E 
Customs Act, 1962: 
Sections 2(39), 2(43), 23, 49, 59, 72 and lll(j) and 125(2)--lmport of 
goods-Goods assessed to duty and kept in warehouse under lock and key of 
customs authorities-Clandestine removal of goods without paying of as-
F 
~ 
sessed duty-Whether constituted 'smuggling'-Whether goods liable to be 
confiscated-Import of goods when concluded-Whether open to authorities 
to· either confiscate go'!ds or collect duties payable by them. 
The Petitioner was the Managing Director of a company engaged in G 
the business of manufacture and production of plastic goods. The Com-
pany imported certain materials and the goods were cleared for bonded 
-I 
warehouseing after assessment to duty. The Company cleared part of the 
material, after payment of duty, under the supervision of the Customs 
Officials on different dates, and the balance was kept in the warehouses, 
which were kept under lock and key and the key was in the custody of 
U,7 
268 
SUPREME COURT REPORTS 
[1992] 3 S.C.R. 
A 
Customs officials. Sometime later, the Customs officials discovered 
shortage of material kept in the warehouses. Certain enquiries and 
proceedings ensued and in the course of these enquiries, the petitioner 
came to know that an order of detention had been passed against him 
under Section ~(1) of the Conservation of Foreign Exchange & Prevention 
B 
c 
of Smuggling Activities Act, 1974, with a view to preventing him from 
abetting the smuggling of goods. Without waiting for the order and the 
grounds of detention being served on him, the petitioner filed a writ 
petition before the High Court challenging the order of detention. The 
authorities did not file any counter affidavit affirming or denying the facts 
mentioned in the writ petition nor did they come forward to disclose or 
even indicate the grounds of the proposed detention, if any. A Single Judge 
of the High Court dismissed the writ petition on the ground that, on the 
facts disclosed in the petition, the case, prim a f acie fell within the scope of 
the expression 'smuggling' as defined in the Act. 
D 
On appeal, the Division Bench held that the circumstances referred 
to in the petition were not sufficient to constitute 'smuggling'. However, it 
dismissed the appeal on the view that without the grounds of detention it 
would not be proper for the courts to go into the validity or otherwise of 
the order of detention or make any pronouncement that the order in 
question had not been passed under the Act under which it was proposed 
E 
to have been passed or that it was passed with a wrong purpose or was 
passed on vague, extraneous or irrelevant grounds. 
In the Special Leave Petition before this Court on behalf of the 
Petitioner it was contended that the Division Bench of the High Court 
F 
having held that activities did not constitute 'smuggling' ought to have 
straightaway quashed the detention order; that the goods in question had 
been assessed to customs duty by the authorities and an order for their 
clearance from the customs area had been made on the execution of a bond 
for the due payment of the duty; that the petitioner was not guilty of 
G 'smuggling' or the abetment thereof; that the scope of s.ltl(j) should be 
restricted to goods which were dutiable and no duty had been assessed and 
their removal from a warehouse where they were lodged, pending assess· 
ment of duty, that the operation of 'import' was concluded once the goods 
were assessed to customs duty and cleared from the customs area and the 
concept of 'smuggling' could have no meaning in respect of such goods 
H thereafter, that where goods were removed from a warehouse in which they 
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B

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