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1989 Supreme(Kar) 219
Karnataka High Court
Judges : Prem Chand Jain,Shivashankar Bhat
AKTAR SAKEENA - Appellant
Versus
GOVERNMENT OF INDIA - Respondent
W. P. (HC) 37 Of 1989
Decided On : 07/03/1989
Advocates Appeared :
KIRAN JAVALI, N.Santosh Hegde, S.V.NARSIMHAN, SHYLENDRA KUMAR
The Detaining Authority must apply his mind and consider vital facts before issuing a detention order, and the satisfaction for detention must be susceptible of satisfaction both in law and in logic.
Headnote:
Customs Act - Detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 123 of the Customs Act, 1962 - Section 13(1) of the Foreign Exchange Regulation Act - Section 2(e) of the COFEPOSA Act - Section 108 of the Customs Act - Section 3(1)(iv) of the COFEPOSA Act
Fact of the Case:
Amjad Hussain was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the Act') based on the alleged involvement in dealing with smuggled goods. The detenu's detention was challenged by his mother through a petition.
Finding of the Court:
The court found that the Detaining Authority did not apply his mind and missed the real facts involved in the case, leading to a patently erroneous application of Section 123 of the Customs Act. The court held that the Detaining Authority's satisfaction for the detention was not approved by the Parliament and quashed the order of detention, ordering the release of the detenu.
Issues: The issues raised included the wrongful invocation of Section 123 of the Customs Act, denial of legal assistance to the detenu, and the Detaining Authority's two different satisfactions.
Ratio Decidendi: The Detaining Authority's failure to apply his mind and the erroneous application of Section 123 of the Customs Act led to the quashing of the detention order.
Final Decision: The petition was allowed, and the order of detention was quashed, leading to the immediate release of the detenu.
( 1 ) AMJAD Hussain was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the Act') by an order dated 8-10-1988. His mother has filed this petition challenging the same. The detenu has been in detention since 23-11-1988.
( 2 ) IT is stated in the grounds accompanying the order of detention that on 9-9-1988 the Officers of the Directorate of Revenue Intelligence kept watch at Mangalore along with two witnesses on the information that one Praveen Kumar Shetty was likely to carry foreign marked gold near poonja Arcade, Mangalore. Thereafter the Officers apprehended the said Praveen Kumar Shetty and from him five pieces of gold, each weighing 10 tolas were seized. These gold pieces had foreign markings and the certified gold-smith after testing them by touch-stone-method opined the said five gold biscuits, of 24 ct. purity and of foreign origin. Accordingly the said gold biscuits were seized, valued at Rs. 1,80,000/- on the reasonable belief that they were smuggled into India. It is further stated that the said Praveen Kumar Shetty made a statement according to which the detenu supplied him the aforesaid gold biscuits to handover them to another person near Hotel Sreenivas. It was also stated in the said statement that during the last one year that praveen Kumar Shetty had delivered gold biscuits many times at the Instance of the detenu. Consequently, the next day,. e. , on 10th September 1988 the statement of the detenu was recorded under Section 108 of the Customs Act in which the detenu stated that he was looking after his father's business in the textile shop at Mangalore; that last year when he was coming from Bombay the detenu came into contact with one Noorul Amine in the bus and during the course of conversation with him the said Noorul Amine offered to supply gold biscuits of foreign origin to the detenu each week for selling in Mangalore to which the detenu agreed. Since the detenu was afraid to work himself, he engaged Praveen Kumar Shetty for this job. Para-4 of the grounds of detention summarises this statement in more detail. The substance of this statement was that the detenu was getting the gold from Noorul Amine and was disposing of the same through Praveen Kumar Shetty and another person called 'narayan' of Kadri as well as one abdulla. The gold biscuits seized from Praveen Kumar Shetty on 9-9-1988 at about 6. 30 p. m. were handed over to him by the detenu so that Praveen Kumar Shetty may in turn deliver them to abdulla near the gate of Hotel Srinivas.
( 3 ) THEREAFTER the detenu was arrested under Section 104 of the Customs Act and was produced before the Magistrate along with Praveen Kumar Shetty and ultimately the detenu was released on bail by the Magistrate on 19-9-1988. The grounds of detention also refers to the telegram sent on 24-9-1988 retracting the statements made by him earlier. Thereafter comes para-9 of the grounds of detention and in view of its relevancy the same is extracted here:
"the gold biscuits under seizure have been tested for purity by touch stone method by a certified goldsmith who has opined that they are of 24 ct. purity and of foreign origin. The gold biscuits under seizure attract the provisions of Section 123 of the Customs Act, 1962 and as such the burden of proof that the said gold has not been smuggled into India is cast on you and on your failure to discharge the said burden to the authorities, the gold came to be seized by the Officers. Importation of gold into India has been prohibited under the provisions of Section 13 (1) of the foreign Exchange Regulation Act except with the general or special permission of the Reserve bank of India. You have not produced any such permission obtained from the Reserve Bank of india for the importation of the said gold under seizure to the Competent Authorities at the time of seizure of the said gold. Therefore the gold under seizure is liable for
