JUDGMENT - VISHNU SAHAI, J.:---By means of this petition preferred under Article 226 of the Constitution of India the petitioner who is the brother of the detenue Arif Abdul Karim Merchant has impugned the detention order dated 17-1-1997 clamped against the detenue by respondent No. 1, detaining the detenue under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, (52 of 1974), hereinafter referred to as COFEPOSA Act.

2.The prejudicial activities of the detenue necessitating the passing of the detention order are spelt out in the grounds of detention, annexed as annexure "B" to the petition.

The detention order as well as the grounds of detention were contemporaneously served on the detenue on 13-10-1995 while he was undergoing preventive detention in another case.

3.In short the grounds of detention read thus :---

(a) On 6-6-96 officers of the Customs Preventive Commissionerate, Mumbai, on the basis of specific information intercepted at about 1.15 a.m. one zainab Momin Khan Aliar Khan (hereinafter referred to 'zainab khan'), at the entrance gate of security hold No. 8, Module II, N.I.P.T., Sahar International Airport, Mumbai, while she was on her way to board Air India Flight No. AI-434 scheduled to leave for Singapore. She was intercepted while she was proceeding for security check up. At the time of interception she was found in possession of one piece of hand baggage viz. pink coloured jute bag. Her air ticket showed that she had checked in two pieces of baggage bearing identification tag Nos. AI 114257 and 114268. The same were retrieved with the help of Air India Traffic staff. Zainab Khan was questioned by the Customs Officers, in the presence of witnesses, as to whether she was carrying any foreign currency, either in her baggage or on her person. She replied in the negative. The authorities were not satisfied with her reply and consequently examined her plastic bag and found that apart from clothes some currency notes incriminating her under COFEPOSA were contained in it. Her plastic bag revealed 28 bundles of US dollars.

Thereafter the authorities examined the black suit case which she was carrying and found in it, apart from some tobacoo, 42 bundles of US dollars in six plastic handles.

In the grounds of detention it has been averred that the value of the dollars seized was about Rs. 37,75,680/- in terms of Indian currency.

Since Zainab Khan was neither in possession of nor produced any permit from Reserve Bank of India for taking out the seized currency and as the same was not declared the Customs authorities seized it under the bona fide belief that it was being attempted to be smuggled out of India and hence liable for confiscation under the Customs Act, 1962 read with COFEPOSA Act, 1973.

(b) The statement of Zainab Khan was forthwith recorded under section 108 of the Customs Act and in the same she admitted the knowledge, possession, carriage and recovery of foreign currency seized. In her said statement she also admitted that she was residing at Chawl No. 8, Ground Floor, Aga Hall, Nesbit Road, Mazagaon, Mumbai 10 and that the detenue had employed her and had given her the said currency for carrying it in a concealed manner to his contact person. Mr. Arif in Singapore, and for doing the said work she was to be paid Rs. 2000/-, apart from the cost of the air ticket and other expenses. Zainab Khan also admitted that the detenue was living at the top floor, Khoja Jamat Khana, Khadak, Dongri, Mumbai and on an earlier occasion had also given her one hand bag and a zipper suit case to be handed over to the said Mr. Arif in Singapore and she had successfully executed the said mission and was paid for the same a sum of Rs. 2,500/-, apart from the cost of air tickets and expenses.

Zainab Khan further admitted in her said statement that on 6-6-1996 one Mr. Umer, a relative of the detenue had picked her up from her residence; as per prior arrangement, had handed over the suit case and t

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