Judgment

M.K.MUKHERJEE, J.

(1) SPECIAL leave granted.

(2) THIS appeal is directed against the order dated 1/10/1990 passed by the Bombay High court in Writ Petition (Crl.) No. 1083 of 1990.

(3) ON 23/8/1990, the secretary (Preventive Detention) to the government of Maharashtra, Respondent 1 herein, made an order under Section 3(1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) to detain the appellant with a view to preventing him from smuggling goods. On getting information about the making of the order the appellant filed a writ petition in the Bombay High court challenging the same and having failed there moved this court by filing the special leave petition. To the petition the appellant has annexed, amongst other documents, purported copies of the order of detention and the grounds on which it is based though it is not quite clear how he came by them. The respondents, however, contend that the appellant obtained those copies clandestinely for they were to be served upon him only on detention. However, this aspect of the matter need not detain us as the respondents have not assailed the authenticity of those copies.

(4) BEFORE we proceed to consider the contentions raised by Mr Jethrnalani, the learned Senior Counsel appearing in support of the appeal, we may profitably refer to the factual allegations made in the grounds of detention so far as they are relevant for our present purposes. It is first stated therein that in the early hours of 22/5/1990 when Cathay Pacific Flight No. CX 750 arrived at the Sahar Airport, Bombay, some Customs Officers accosted the appellant, who had come from Dubai, inside the aircraft in presence of two panchas and asked whether he was carrying gold. Initially he answered the question in the negative but when the Officers touched his person and felt some hard substance below his waist belt he admitted having concealed gold bars tied around his waist. He was then taken down to the Customs Baggage Examination Hall and from there to the SDOs room in the Hall. There, on search, three cotton belts tied around his body were recovered. Each of the three belts was found to contain 60 gold bars, each weighing 10 tolas, and bearing foreign markings.

(5) THE grounds of detention then detail the statement the appellant made to the Customs Officers on that day wherefrom it appears that he not only admitted that he brought the seized 180 gold bars from Dubai but earlier also on 15/5/1990 he had illegally imported 120 gold bars from Dubai. In the statement he also disclosed the names of the persons who were involved in the transactions. Another statement made by the appellant on 24/5/1990 regarding his modus operandi of smuggling the gold has next been incorporated in the grounds of detention. The grounds of detention then recite that on 24/5/1990 the appellant was arrested and on 25/5/1990, when he was produced before the Additional Chief Metropolitan Magistrate, Bombay, he made a statement. The statement so made has also been reproduced in the grounds of detention.

(6) THE appellants version of the incident as disclosed in that statement is that after he was brought down from the aircraft, he was allowed to take out his baggage and then leave the airport. While he was waiting outside he was brought back and taken to the SDOs office where he found cotton belts lying on the table. Then and there the Customs Officers asked the appellant about the gold to which he replied that it did not belong to him. Then the Officers started assaulting him and tying the belts around his body. During the process he became unconscious. It is next stated in the grounds that Additional Chief Metropolitan Magistrate while remanding the appellant into judicial custody ordered his medical examination. Pursuant thereto he was examined by the Chief Medical Officer of the Bombay central Prison Hospital and his report i