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1998 Supreme(Bom) 591
IN THE HIGH COURT OF BOMBAY
Arumugham N. Sahai Vishnu, JJ.
Lata Mahendra Parekh .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Criminal Writ Petition No. 156 of 1998, decided on 6-10-1998.
Advocates appeared :
Maqsood Khan, for petitioner.
Rajiv Patil, for respondents.
Headnote:Section 3(1)-Constitution of India, Article 22(5)-Detention order-Non-application of mind by Detention Authority-Detenu retracting his entire earlier statement-Such retraction and important document not considered before passing detention order-Held, such not consideration amounts to non-application of mind and violative of Article 22(5) of Constitution.-In the context of the judicial pronouncement made by this Court, the other High Courts as well as the Apex Court in all the above referred cases Courts feel, that the reply sent on behalf of the detenu in the instant case on 19.9.1997 happened to be the first and the last retraction of the entire earlier statement made by the detenu that the same assumes all the characteristic views of vital and important document which the Sponsoring Authority or the Detaining Authorities ought to have under the law considered the same before passing the order of detention in the instant case, and that while dealing with the legal position in the present condition conscientiously which has not been done. Then the said non-consideration amounts to not only non-application of mind but also depriving the valuable right of the detenu in nonreplying to the same after consideration and non-furnishing of the said copies or replies would clearly come within the teeth of Article 22(5) of the Constitution of India.
Section 3(1)-Constitution of India, Article 22(5)-Detention Detenu allegedly indulging in smuggling activities of gold for monetary consideration-Reply representation to show-cause notice containing total retraction of earlier statement of detenu for the first and last time Non-consideration of said reply or non-placing of the same before detaining authority prior to passing of detention order would violate mandate of law as provided under Article 22(5) of the Constitution and vitiate order of detention-Retractions were not placed before the detaining authority -Non-consideration vitiated the order of detention-Detaining authority in proceedings challenging the detention stating that if the said reply had been placed before me the same would not have weighed with Court in favour of the detenu while arriving at my subjective satisfaction for detaining her-N on-consideration amounted to not only non-application of mind but also depriving the valuable right of the detenu in non-reply-ing same after consideration and non-furnishing of the said copies or replies would clearly come within the teeth of Article 22(5) of the Constitution of India-Detention quashed. 1985 (1) SCALE 964, Cri. WP. No. 1240 of 1989 (Malvinder Singh v. Secretary (PD) to Govt. of Mah), WP. No. 101 of 1984 decided on 13.11.1984, 1996 (2) Mh LJ 900 : 1996 (4) All MR 331, AIR 1991 SC 1375-Relied on; Cri. WP. No. 1092 of 1993, decided on 27.10.1993, 1990 (4) SCC 135, AIR 1990 SC 176, AIR 1981 SC 1191-Dist.
2. On specific intelligence on 1-5-1997 the officers of the Air Intelligence Unit, Sahar Airport, Mumbai, Module I, intercepted one lady passenger, the detenu herein at the exit gate of Sahar Airport, Mumbai, Module I, Arrival Hall, after both the detenu and her son cleared through the red channel by making a declaration of being within free allowance. The detenu was holding Indian Passport bearing No. V-012964 dated 23-1-1995 and produced Cathay Pacific Ticket No. 160-4409 680 2803 dated 27-3-1997 for the sector Mumbai Dubai Mumbai issued by Air Sea Travels Tours by which the detenu and her son Master Anand M. Parekh were travelling. Her son also produced Cathay Pacific Ticket No. 160-4409 680 2094 dated 27-3-1997 for the sector Mumbai Dubai Mumbai issued by the same agency.
3. On seeing the dutiable goods valued at Rs. 5600/- duly signed by the detenu on the gate pass and on coming to know that the detenu and her son came from Dubai they were questioned. On being questioned specifically whether they carried any gold in their baggage they replied in the negative. However, the officers took them through the metal door frame which strongly indicated presence of metal on the body of the detenu. Then the detenu was taken to the ladies room by a lady officer duly escorted by panchas and the personal search of the detenu was made by a lady Gazetted Officer which resulted in the recovery of black colour cloth belt tied to her waist having compartments which appeared to be very heavy. On further search in the presence of panchas recovery of two bangles and one pendant made of crude gold was made. Thereafter in the presence of panchas the detenu admitted concealment of twenty two (22) gold bars of 10 tolas each bearing foreign markings inside the compartment of the said black coloured cloth belt. The search was also made upon her son by the said officers in the presence of panchas but nothing objectionable was recovered. The detenu and her son were taken outside the Airport along with panchas and officers of A.I.U. but no one came forward to receive them. Both of them were then taken to the office of A.I.U. in Module II, Sahar Airport, Mumbai, where the black coloured belt was cut open by the aforesaid officers in the presence of panchas which revealed concealment of 22 gold bars of 10 tolas each having foreign markings totally weighing 2565.2 grams. The two gold bangles and one gold pendant were weighed in the presence of panchas and were recovered. The total quantity of gold recovered from the detenu thus weighed 2797.4 gms valued at Rs. 11,04,973/- IMV and Rs. 13,34,360/- LMV were seized under the provisions of Customs Act, 1962 under a panchanama with belief that the same were being smuggled into India. Then the examination of four checked in baggage consisting of two card board cartons, one black colour zipper bag, one small sized soft top suitcase and three pieces of plastic shopping bags and a hand baggage was done by the customs officers in the presence of panchas which resulted in the recovery of undeclared dutiable goods valued at Rs. 56,150/- CIF and Rs. 1,12,300/- LMV, which were also seized under a panchnama. The detenu was arrested under the Customs Act, 1962 and was produced before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, who remand her to judicial cust
