(February 15, 1978) 1979 (TLS)106904

1979-ILR (Del)-1-764 :: 1979-Crlj-0-365

MOHAMMAD MASOOM Vs. UNION OF INDIA

T. P. S. CHAWLA, J.

( 1 ) THE petitioner, Mohammed Masoom, is being detained under an order dated 25th January 1975 made by the Administrator of Delhi under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 ( cofeposa ). This petition for a writ of habeas corpus has been moved on his behalf by his son Mohammed Saleem.

( 2 ) COUNSEL for the petitioner attacked the order of detention on three grounds. First, and foremost, he said, that there had been unexplained and excessive delay in effecting the arrest of the petitioner after the order had been made, which showed that the satisfaction of the Administrator about the necessity for detaining the petitioner was not real or genuine. Secondly, he contended, that the grounds on which the order had been based were stale and could not justify the order. And, thirdly, that the Administrator had taken note of certain statements made by the petitioner to the customs authorities, but had not been informed, and had not taken note of the fact, that the petitioner had retracted those statements.

( 3 ) IN our opinion the petition must succeed on the very first ground, and hence it would be redundant to deal with the others. To properly appreciate that ground, it is. necessary to recite the history of the case.

( 4 ) THERE were some incidents in April 1973, which gave reason to believe that the petitioner was engaged in smuggling gold into this country. He was arrested and interrogated by officers of the Directorate of Revenue Intelligence. Subsequently, he was released on bail. Nearly three years afterwards, on 31st March 1976, a complaint was filed against the petitioner in the court of the Additional Chief Metropolitan Magistrate, New Delhi, for offences alleged to have been committed by him under section 135 (b) of the Customs Act 1962 and section 85 of the Gold (Control) Act 1968. That complaint related to the incidents which occurred in April 1973, and proceedings thereon are still pending.

( 5 ) IN the intervening period, however, there were a number of other events. On 14th October 1974, the District Magistrate, Delhi, ordered the detention of the petitioner under section 3 (1) (c) read with section 3 (2) of the Maintenance of Internal Security Act 1971 ( misa ), so as to prevent him from smuggling or dealing in smuggled goods. The petitioner was arrested on 15th October 1974. On the same day he was supplied with the grounds for his detention. All of them pertained to the incidents of April 1973. The petitioner made a representation against the order to the State Government, and also filed a petition in this court seeking his release. The Advisory Board, which considered the representation made by the petitioner, formed the opinion that the order of detention was invalid. Consequently, the petitioner was set free on 5th December 1974. The petition which he had filed in this court, thus, became infructuous.

( 6 ) AFTER COFEPOSA came into force on 19th December 1974, the Administrator made an order on 25th January 1975 under section 3 (1) of that Act for detaining the petitioner. That is the order now impugned. It was stated in the order that the Administrator was satisfied that it was necessary to detain the petitioner with a view to preventing him from engaging in various kinds of smuggling activities. The grounds on which the order was made again referred to the incidents of April 1973, and were substantially the same as the grounds on which the earlier order of 14th October 1974 had been made under MISA. As the petitioner could not be found, the order of detention could not be executed. Proceedings were then taken against the petitioner under section 7 (1) of COFEPOSA as there was reason to believe that he had absconded or was concealing himself. Under an order of the Additional Chief Metropolitan Magist