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1996 Supreme(Bom) 390
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
A.V. Savant D.K. Deshmukh, JJ.
Embicha Bawa Basheer Ahmed.... Petitioner.
Versus
The State of Maharashtra, through the Secretary to the Government
of Maharashtra, Home Dept. (Special) and others.... Respondents.
Criminal Writ Petition No. 1087 of 1995, decided on 18/19-7-1996.
Advocates appeared :
Maqsood Khan, for the petitioner.
D.G. Bagwe, A.P.P., for State.
Headnote:Section 3(1)-Constitution of India, Article 22(5)-Detenu-Right to submit representation by-Guaranteed under Article 22(5)-Failure of detaining authority to inform such right to detenu a violation of the Article and continued detention be liable to be quashed.
Section 3(1)-Order of detention-Grounds of detention making extensive reference to incriminating statements by the detenu-Retractions made before passing order of detention-Order of detention is vitiated.
Detaining authority while passing the order of detention and formulating the grounds in support of the order of detention extensively relied upon the statements of the detenu and of Smt. Naseema Beevi both recorded on 17th January, 1995. The grounds of detention make extensive reference to the said statements. However, though the retractions were made on 10th May, 1995 much before the order of detention was issued on 30th May, 1995, the Sponsoring Authority did not think it necessary and indeed has thought that it was wholly irrelevant and immaterial for recording the satisfaction while passing the order of detention and hence did not even place the said retraction before the detaining authority. Consequently, the detaining authority had no occasion to consider these relevant and material circumstances, namely, statements of retraction made by the detenu and by Smt. Naseema Beevi on 10th May, 1995 before recording the satisfaction while passing the order of detention on 30th May, 1995.
Section 3(1)-Detention order.
Detention order is vitiated for non-consideration of retracting statement of detenu.
2. This is a petition by the detenu himself challenging the order dated 30th May, 1995 passed by the detaining authority, viz., Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) in exercise of his powers under sub-section (i) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA). The detenu has been ordered to be detained for a period of one year with a view to preventing him from abetting the smuggling of goods. The brief facts relevant for deciding the only contention raised before us are as under :
3. On 17th January, 1995, the Air Intelligence Unit, Bombay Customs at Sahar Airport, Bombay intercepted a passenger named Smt. Naseema Beevi Subair at the check-in-counter of Gulf Airlines, Module I, NIPT Sahar Airport, Bombay. She had checked in with one card board carton with baggage identification tag No. GP. 352615 and she was in possession of the counterfoil of the said baggage identification tag and Indian Passport as also her Gulf Airlines ticket from Bombay to Muscat. She was questioned in the presence of two panchas. The carton in her possession was opened. It was found to contain some boxes containing sweets but foreign currency was found concealed under the sweets. In all the boxes of sweets, foreign currency so concealed was amounting to Rs. 58,08,061.50. As mentioned in the panchanama, the foreign currency of different countries like U.S. dollars, Saudi Riyals, UAE dirhams, Oman Riyals, Kuwait Dinar and Behrain Dinar etc. was found. The residential premises of the said passenger Naseema Beevi were searched. Her statement was recorded on 17th January, 1995. Para 8 of the grounds of detention refer to the statement of Naseema Beevi recorded on 17th January, 1995 which statement specifically implicates the detenu. He had arranged for her VISSA and house for her in Muscat. She had been to Sahar Airport on 17th January, 1995 with the detenu and another person. The detenu is alleged to have given her carton containing sweets and foreign currency to be carried to Muscat and handed over to an Arab who was to meet her at Muscat Air Port. Then, there is a reference to the statement of Naseema Beevi in para 9 of the grounds of detention referring to Naseema knowing a girl named Amby who had stayed in the room of the detenu.
4. In para 10 of the grounds of detention reference is made to the statement of the detenu himself recorded on 17th January, 1995 under section 108 of the Customs Act. The detenu is alleged to have stated that he was working as a sub-agent for about 12 years with travel agent and had arranged VISSA for people wanting to travel abroad. Then there is reference to the detenu's association with the said Naseema Beevi and details of the arrangements for her flight on 17th January, 1995 to Muscat. There is a further reference to the statement of the detenu in para 12 of the grounds of detention that the detenu had, in the past, sent 7 passengers abroad through Salih and Salih had given such cartons to 3-4 passengers including Naseema Beevi for carrying to Muscat. There is a further reference to the statement of the detenu and his incriminating activities with Salih and others in this behalf of smuggling foreign currency out of India.
5. Then there is a reference to some other material in the grounds of detention after which the conclusions have been stated in paras 24 and 25 as under :
"24. It is seen that you have been arranging carriers of contraband foreign currency which was given by Salih, as in the case of Smt. Naseema Beevi Subair. Salih had given cartons to 3-4 passengers of the type given to Smt. Naseema Beevi Subair in your presence, which carton was found to contain undercleared foreign currency of huge amount of Rs. 58,08,061.50. There is reason to believe that you are part of a gang of smugglers as seen from the statements of K.P. A
