JUDGMENT

S.K. Mahajan, J. - The petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short referred to as COFEPOSA) pursuant to an, order of detention dated 3-2-1997. The grounds on which the order has been made against the petitioner under Section 3 (1) of the COFEPOSA were:

2. That on 25-7-1996 one passenger Salahuddin Abdul Razak was going to Dubai from I.G.I. Airport. After clearance from immigration and customs while he was going towards the security check area he was intercepted on suspicion and on being searched foreign currency notes equivalent to Indian Rs. 13,48,979.80 were recovered from the briefcase being carried by him as his hand baggage. It is alleged that in his statement recorded under Section 108 of the Customs Act. Salahuddin stated that on 1-6-1996 he came to Delhi and brought 5 kgms. of gold with him; the gold was given to him by one Mohammad Umar alongwith foreign currency to pay the customs duty; that he paid the customs duty for the said gold and thereafter the gold was delivered to the petitioner at his guest house near Jama Masjid. Delhi where the said Salahuddin Abdul Razak stayed for four days. It is further stated by him that he stayed with the petitioner at his guest-house; the petitioner took his passport and air ticket and got a reservation for him for 25-7-1996; that on 24-7-1996 the petitioner gave a photoframe to Salahuddin and asked him to handover the same to Mohammad Umar in Sharzah. It was on the opening of this photo frame found in the briefcase of Salahuddin Abdul Razak that the foreign currency was recovered.

3. Summons under Section 108 of the Customs Act were issued to the petitioner on 25-7-1996 and he appeared before the officers of the. Customs Department on 20th and 24th August 1996 arid 17th September, 1996. The petitioner though admitted that he knew Mohammad Umar who was his younger brother and that Salahuddin Abdul Razak had stayed in his guest house he pleaded ignorance of the knowledge of any gold having been imported by Salahuddin Abdul Razak or the same having been given to him by his younger brother Mohammad Umar. He denied having been handed over any gold by Salahuddin Abdul Razak or his having given foreign currency or the photoframe to Salah uddin for being given to Mohammad Umar. A Show Cause Notice dated 22-1-1997 was given to the petitioner in the adjudication proceedings and a complaint for offence punishable under Section 135 (1) (a) of the Customs Act was also filed in the Court of Additional Chief Metropolitan Magistrate, New Delhi on 22-1-1997. The Court of Additional. Chief Metropolitan Magistrate. New Delhi took cognizance of the complaint vide order dated 22-1-1997.

4. The statement made by Salahuddin Abdul Razak implicating the petitioner was later on retracted by him Lt. Governor. Delhi, however on 3-2-1997 issued the order of detention of the petitioner stating inter alia that on the basis of the facts and circumstances stated in the grounds of detention he had no hesitation in arriving at the conclusion that the petitioner had the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he was likely to indulge in the smuggling activities in future. It was further stated that although prosecution and adjudication proceedings under the Customs Act had already been initiated against the petitioner, still the Lt. Governor of Delhi was satisfied that it was necessary to detain the petitioner under the provisions of COFEPOSA with a view to preventing him from abetting the smuggling of goods and also preventing him from engaging in transporting concealing and keeping smuggled goods in future.

5. This order of detention is challenged by the petitioner by way of the present writ petition. The order is challenged on the grounds: (1) that there was no material before the Detaining Authority to show that the petitioner had an incl