Judgment

BAHARUL ISLAM, J. :- The facts of these two writ petitions are common and inter-connected. The contentions raised before us by Mr. Jethmalani, counsel for the petitioner, Suresh Bhojraj Chelani, in Writ Petition (Crl.) No. 1210 of 1982 have been endorsed by Dr. Chitale, counsel appearing for the petitioner, Narain Tarachand Mirchandani (hereinafter Mirchandani) who has additionally filed some written arguments.

The petitioners have been detained under sub-section (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter the COFEPOSA Act) by two separate orders, both dated 16th of April. 1982. The allegations against them are these :

2. The petitioners arrived at the Bombay Airport on 30th Dec., 1991 from Singapore by Singapore Airlines Flight No. SO. 022. The unaccompanied baggage of the petitioners was weighed together. The luggage consisted of two bags and one zipper bag with claim tags bearing Nos. 10-17-95, 10-17-96 and 10-17-97. The outer part of the said tags were pinned to the ticket of Mirchandani. On arrival at the Bombay Airport, the said three bags were brought from the conveyor belt to the customs clearance barrier. Both the petitioners initially stood at the same checking customs counter. Subsequently, at the request of the Customs Officer, Mirchandani was sent to a different counter. Chelani got the bag bearing tag No. 96 as his bag cleared after paying customs duty of Rs. 930/- in respect of goods found in the said bag. Mirchandani got the bag bearing No. 97 claimed by him as his bag, cleared it on payment of Rs. 1,550/- as customs duty. The third bag, namely, the zipper bag. bearing No. 95 whose outer part was pinned to Mirchandanis ticket was disclaimed by both the petitioners. The said bag was opened and inspected by the Customs Officer in the presence of Mirchandani. The zipper bag was found to contain foreign goods such as ladies wrist watches, mini stereo cassette players. watch pens, casio calculators. recorded tapes and ladies wearing apparels. whose C. I. F, value was found to be Rs. 43.390/- with corresponding market value assessed at Rs. 1,13,920/-. The said goods were seized under a panchanama. Thereafter, the statements of the petitioners were recorded.

3. In his statement, Mirchandani said that on 22nd Oct., 1981, he along with his friend,Chelani, had left for Bangkok. The tickets held by them were routed in Bombay-Bangkok-Singapore-Bombay. He had taken five hundred U. S. dollars to Singapore which he had purchased from a person at Crawford Market with Rs. 5,050/- at the rate of Rs. 10.10 per dollar. At Singapore, he had purchased the goods with this money. He did not know how much money Chelani carried. On 20th Dec., 1981. Chelani was away for two to three hours and on his return, he (Mirchandani) had noticed one grey coloured zipper hand bag and on being asked, Chelani told him that he had purchased some car and motor cycle parts. They checked out of the hotel on 29-12-1981. He had one V.I.P. hand bag and one brown suit-case. Chelani bad one suit-case, one brief-case and one zipper bag. At Singapore Airport, Chelani got the baggage and all of them weighed together and when he noticed that there were three baggage tags attached to his ticket, he asked Chelani, why three tags were stapled to this ticket, and was told by Chelani that he had checked their baggage together. On arrival at Bombay Airport, Chelani had asked him to take the gray zipper bag from the conveyor belt to the Customs Counter as it was heavy. He took the baggage to the Customs Counter and stood in the same queue behind Chelani. When one of the Customs Officers asked him to go to the next counter, he did so and checked his luggage consisting of one suitcase, one V.I.P. bag and one plastic bag containing whisky and cigarettes and he paid as duty Rs. 1,550/- which he received from his brother, Narayan, who had come to the airport to receive him. By that time, Chelani had c