JUDGMENT - SAVANT A.V., J.:---Heard all the learned Counsel.

2. The petition is filed by Vijayraj Solanki, cousin of the detenu Kaluram Danaji Prajapati. The detenu has been detained under the order dated 15th November, 1995 passed by the second respondent Joint Secretary to the Government of India in exercise of his powers under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act). The order of detention says that with a view to preventing the said Kaluram Danaji Prajapati from engaging in keeping smuggled goods as well as dealing in smuggled goods otherwise than by engaging in transporting or concealing smuggled goods in future it was necessary to make the order of detention. The grounds on which the order of detention was passed were furnished along with the order of detention. Both the order and grounds were served on 20th November, 1995 along with the list of documents. Briefly stated the facts are as under :

3. On specific information the officers of Head Quarters Intelligence Unit-II Customs (Prev) Commissionerate, Bombay intercepted one Farook Ibrahim Desai and his minor son Naveed Desai on the domestic Airport, Mumbai on 11th October, 1995 when they were about to board the Jet Airways flight to Ahmedabad which was to depart at 05.50 hours. At the customs office the baggage of the said passenger Farook Desai was examined. Foreign currency equivalent to Rs. 1.61 crores was recovered. It was seized. The electoral identity card of Farook Desai was also seized. Farook Desai disclosed that the foreign exchange was collected from one Bombay party at the behest of his brother Aminbhai at Dubai towards the sale proceeds of smuggled gold which was supplied by Aminbhai. On 11th October, 1995 itself the premises of M/s Crystal Electronics at Lamington Road were searched. Indian currency of Rs. 9.50 crores was seized. The detenu Kaluram Danaji Prajapati is the partner of M/s Crystal Electronics. The statement of the detenu was recorded initially on 14th October, 1995 and then on 17th October, 1995. The statement of another person Limbaram Devashi who was the detenu in Writ Petition No. 1276 of 1995 was also recorded on 11th October and 12th October, 1995. We have, earlier in the day, allowed the said petition filed on behalf of Limbaram Devashi and set aside his detention. The statement of the present detenu Kaluram Prajapati was recorded initially on 14th October, 1995 and then on 17th October, 1995. The detenu was arrested on 14th October, 1995 and was released on bail on 27th October, 1995. In the mean-while he had filed his retraction on 19th October, 1995. In the above background the order of detention was issued on 15th October, 1995 and as stated earlier, it was served on the detenu along with the grounds and documents on 20th November, 1995.

4. It is not necessary to set out any further facts since the petitioner is entitled to succeed on a short point raised by Shri Karmali on behalf of the petitioner. It is contended by Shri Karmali that in the grounds of detention there is a reference to the fact that the detenu was earlier arrested on 9th February, 1991 when 20 silver ingots of foreign origin totally valued at Rs. 44,00,000/- (Rupees forty four lakhs) were recovered from him by the officers of Marine and Preventive Wing, Bombay. A fine of Rs. 25,000/- was imposed on the detenu and he was detained under the COFEPOSA Act, 1974 under order dated 20th January, 1992 for one year. There is a reference to this fact in para 8 of the grounds of detention and again in para 10 of the said grounds. The concluding portion of para 10 of the grounds read as under :

In this case you were also detained under COFEPOSA Act, 1974 vide Government of Maharashtra's COFEPOSA detention order D. O. No. SPL 3(A)/PSA 0191/290 dated 20-1-1992 for one year. I am satisfied that you are habitually indulging in keeping smuggled goods as well as dealing in smuggled goods.

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