Deepa Ramesh Pai vs Union of India & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 198

IN THE HIGH COURT OF BOMBAY
H.H. Kantharia S.S. Dani, JJ.
Deepa Ramesh Pai.... Petitioner.
Versus
Union of India others .... Respondents.
Criminal Writ Petition No. 1311 of 1990, decided on 5/8-4-1991.
Advocates appeared:
M.G. Kamali with U.N. Tripathi, for the petitioner.
R.M. Agrawal with A.S. Khan, for respondent No. 1.
N.P. Desai, Addl. Public Prosecutor, for respondent Nos. 2 and 3.

Headnote:(i) Criminal Writ Petition - Conservation of Foreign Exchange and Prevention of' Smuggling Activities Act, 1974 - Section 3(1)- Detention under - Writ Petition Dismissed - Second Writ Petition raising various fresh grounds challenging the detention order in question - Whether maintainable? (Yes, Second Writ Petition is maintainable on fresh grounds) (Para 6)
       (ii) Constitution of India, 1950 - Art. 22 (5)Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3 (1) - Detention under - Challenged - Representation made by the detune was disposed of in a casual and cavalier manner and with total non-application of mind - affidavit filed on behalf of the State Government in this regard was filed with non-application of mind - This amounts to violation of fundamental right of the detune enshrined in and guaranteed by Art. 22 (5) - Continued detention order of detune is bad in law and the same has to be quashed and set aside.
       Held: The submission of the learned Counsel is that in the representation several points were raised to which a reply dated September 10, ]990 was received by the learned Advocate of the detune from the Assistant Secretary to the Government of Maharashtra, Home Deparunent (Special) stating that the points raised in para Nos.1 to 5 have already been decided by the High Court in writ petition No. 546 of 1990 which statement was factually incorrect. It shows that the representation was disposed of in a casual and cavalier manner and with total non-application of mind. There seems to be good substance in the submission of Mr. Karmali, for, we were taken through the judgment recorded by this Court on August 22, 1990 in criminal writ petition No. 546 of 1990 and we do not find that the two points at serial numbers 2 and 5 raised in the petition were at all considered and decided by this Court. It is no doubt true that point Nos. 1, 3 and 4 raised in the representation on behalf of the detune were considered by this Court and decided but it is not correct to say that point Nos. I to 5 were already decided by this Court because we find from the judgment earlier recorded by this Court that point Nos. 2 and 5 were not at all considered and decided by this Court. (Para 7)
       Result: Petition allowed

JUDGMENT - H.H. KANTHARIA, J.:---The petitioner here is the wife of one Ramesh Anant Pai. She takes exception to the detention order passed against her husband under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the said Act'), issued on April 17, 1990 by the third respondent, the Secretary to the Government of Maharashtra. Home Department (Special), Mantralaya, Bombay-400 032 with a view to preventing the said Ramesh Anant Pai (hereinafter referred to as 'the detenu') from engaging in transportation of smuggled goods. The detention order was served on the detenu on April 20, 1990. The Union of India (first respondent), through Special Secretary, issued declaration under section 9(1) of the Act on May 10, 1990.

2. Admittedly, the grounds of detention were formulated along with the order of detention and there is no dispute about the service of detention order, grounds of detention and the material relied upon by the detaining authority while formulating the grounds of detention. Shortly stated, it was alleged against the detenu that on February 19, 1990 customs officers attached to Air Intelligence Unit, intercepted one jeep bearing Registration No. BLD 2905 at exit gate No. 5, known as taxi gate, at Sahara Airport, Bombay. The said vehicle was driven by one Orlando Fernandes, Traffic Assistant of Trans-Mediterranean Airways. Another occupant of the jeep was own Gul Rijsinghani, a supervisor of the said Airways. The said jeep thereafter alongwith occupants was taken to the said Airways Being Aircraft at Bay No. 71, near the Air Cargo Complex. Two panchas were called at that place and the detenu and one Nazir Mukadam were found near the Aircraft. The customs officers questioned the detenu and the said Nazir Mukadam regarding concealing of contraband gold in the jeep. They denied having any knowledge about it. The customs officers then escorted the jeep along with Gul Rijsinghani, Orlando Fernandes, Nazir Mukadam and the detenu to the cargo warehouse of the said Airway for the purpose of search. While the detenu was being questioned, Gul Rijsinghani vanished from the scene on a pretext of answering the call of nature. He could not be traced thereafter.

However, in the presence of panch witnesses, the jeep was searched by the customs officers which resulted into recovery of 12 blue coloured cloth belts from the tool box below the driver's seat of the jeep. Upon questioning the detenu and Orlando Fernandes by the customs officers, they admitted having concealed cloth belts containing gold bars which were surreptitiously removed from the Aircraft by the detenu with the knowledge of Gul Rijsinghani and Orlando Fernandes. The Aircraft had arrived from Sharjah. Nazir Mukadam pleaded ignorance. During investigation, seven cloth belts containing 60 stitched compartments each, three other cloth belts having 40 compartments each and the remaining two having 20 compartments each were seized. The detenu identified the cloth belts as the ones which he was to give delivery to a person outside the Bombay Airport.

In the meanwhile, the search party was sent to the residence of Gul Rijsinghani and they returned with him to the place of investigation. On opening 12 cloth belts in the presence of two panchas and the Airways Staff, the customs officers recovered in all 580 gold bars of 10 tolas each having different foreign markings. The gold bars totally weighed 67, 628 grams and were valued at Rs. 1,29,84,576/- and Rs. 2,46,84,220/-. The customs officers seized all the gold bars under a reasonable belief that they were liable for confiscation under the Customs Act, 1962. The house search of Gul Rijsinghani at Bandra revealed recovery of one foreign marked gold bar of 50 grams valued at Rs. 9,600/- and Rs. 17,000/- which were also seized under a panchanama. During further investigation, the statements of detenu, Gul Rijsinghani, Orlando Fernandes

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