( 1 ) RULE D. B.

( 2 ) BY this writ petition under Article 226 of the Constitution of India, for a writ of habeas corpus, the petitioner questions the legality and validity of his detention pursuant to an order passed on 30 January, 2004 by the Lt. Governor of National Capital Territory of Delhi (hereinafter referred to as the Detaining authority) in exercise of powers conferred by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short ).

( 3 ) THE order of detention is passed on the subjective satisfaction of the detaining Authority that it was necessary to detain the petitioner with a view to preventing him from smuggling goods in future.

( 4 ) ACCORDING to the grounds of detention, which are in the narrative form, the incident occurred on 27 August, 2003, when the petitioner arrived from bangkok and after collecting his checked in baggage opted to pass through the green channel. He was intercepted near the exit gate of arrival hall and diverted for X-ray of his baggage. Search of his baggage resulted in the recovery of some miscellaneous goods. On his personal search it came to light that he was wearing two underwears stitched together. Underneath he was wearing another grey coloured underwear which looked bulky from front side. On taking off the grey coloured bulky underwear, one layer of the front double layer stitching was found to be re-stitched. The same was unstitched, which resulted in the recovery of seven packets wrapped in brown adhesive tapes. Removal of brown tapes on each of the packets resulted in the recovery of precious stones in small pouches. The customs jewellery experts were summoned; they examined the items contained in 24 pouches and declared the same to be cut and polished precious stones namely Ruby and Sapphire. Total weight of the said items was 1412. 7 grams. The aggregate value of these goods was estimated at Rs. 6,14,189. 50.

( 5 ) IN his voluntary statement, recorded on the same day, the petitioner, while admitting the recovery of precious stones in the manner aforesaid, stated that he has a cousin in Bangkok who had assured him a job, but despite several visits he could not get any job and that on the last visit he met a lady who asked him to carry these items by concealing in the specially tailored underwear, for which he was to get Rs. 1200/- besides expenses for his stay in hotel.

( 6 ) THE petitioner was arrested on 27 August, 2003 and was remanded to judicial custody from time-to-time. His bail applications were dismissed by the acmm as well as Additional Sessions Judge, whereafter he preferred a criminal miscellaneous petition in the Delhi High Court for grant of bail. Ultimately the High Court granted him bail on 16 January, 2004. Scrutiny of the passport of the petitioner revealed that he had made nine visits abroad during the period from May 2003 to August 2003.

( 7 ) TAKING into consideration the material placed before him, including the bail applications moved by the petitioner, the Detaining Authority came to the conclusion that the petitioner has the inclination and propensity for indulging in smuggling activities in an organised and clandestine manner and unless prevented, he is likely to indulge in similar activities in future. Hence the detention order.

( 8 ) REPLY affidavits have been filed on behalf of the Detaining Authority as well as the Union of India in opposition to the writ petition.

( 9 ) WE have heard Ms. Sangita Bhayana, learned Counsel for the petitioner and Ms. Mukta Gupta, learned Counsel for the Detaining Authorty.

( 10 ) ALTHOUGH in the writ petition the propriety and validity of the order of detention has been hallenged on several grounds, but before us, Ms. Bhayana has urged only one ground namely, that the detention order suffers from the vice of non-appiication of mind, in as much as the Detaining Authority has failed to apply his mind to the retraction of the petitioner,