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1991 Supreme(Raj) 202
High Court Of Rajasthan
Judgename : M.B.Sharma,N.L.Tibrewal
HANUMAN PRASAD AGRAWAL - Appellant
Versus
STATE OF RAJASTHAN - Respondent
D. B. Habeas Corpus Petition 1499 Of 1991
Decided On : 05/10/1991
M.I.KHAN, N.A.Naqvi, S.R.BAJWA
Headnote:(i) Constitution of India - Art. 22(5) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Section 3(1) - Detention under – Subjective satisfaction of the detaining authority - If a person retracts his confession either by way of an affidavit or before the Magistrate, such piece of evidence being a relevant piece of evidence must be placed before the detaining authority who should consider it and then frame an opinion as required U/S 3(1) of the Act. (Para 10)
(ii) Constitution of India - Art. 22(5) - COFEPOSA Act, 1974 - Section 3(1) - Detention under - The fact that the screening committee has considered the cases of other co-accused and did not find their case fit for detention, was not brought to the notice of the detaining authority - Withholding such a material and not considering the same by the detaining authority is non-application of mind by the detaining authority - The order is liable to be quashed. (Para 11)
(iii) Constitution of India - Art. 22(5) - COFEPOSA Act, 1974 - Sections 3(1) & 8(b) Detention under - Right in a detenu to lead evidence in rebuttal of the allegations against him before the Advisory Board - If the witnesses are present, the Advisory Board has to examine them, unless for the reasons to be recorded in writing it feels that they are not relevant - Constitutional safeguards embodied in Art. 22(5) of the Constitution must be read into Sec. 8(b) of the Act. (Para 12)
Result- Petitions allowed.
M. B. SHARMA J.
( 1 ) IN each or the two petitions numbered above, the petitioner has challenged the order dated December 5, 1990 of the Detaining Authority (Commissioner and Secretary to the Government, Department of Home, Government of Rajasthan, Jaipur) made under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA Act ). The challenge is on the ground of non-application of mind of the Detaining authority as well as the delay in making the detention order and also in execution of it in so far as Hebeas Corpus Petition No. 4733/ 1990,hanumanprasad v. State is concerned, but the main thrust of the learned counsel for the petitioners is on the first of the two grounds of the aforesaid challenge.
( 2 ) FIRST the facts, which are these Sampat Kumar, on whose behalf Habeas Corpus Petition No. 1499/1991 has been filed by his father, Mohanlal, was arrested by the SHO, Police Station, Beawar District-Ajmer in the night at about 10. 30 P. M. on June 26,1990 from the Bus Stand Beawar in suspicious circumstances and on search being taken of his person 10 foreign mark gold biscuits were recovered from him, which weighed 116. 5 grams each i. e. total weight of those biscuits was 1. 16 kg. He was produced under Section 109, Cr. P. C. before the Sub Divisional Magistrate, who released him on bail on June 28,1990. The SHO Police Station Beawar submitted a complaint against him under Sec. 109, Cr. P. C. and some other sections. On June 27, 1990, the SHO Police Station Beawar informed the fact of recovery of 10 gold biscuits of foreign mark from Sampat Kumar to the Asstt. Collector, Customs, Ajmer. In exercise of the powers under Sec. 110 or the Customs Act, 1962, 10 gold-biscuits were taken possession of by the Inspector of Customs Department in sealed condition. It was found that each of the gold biscuits was of 24 carat of 116. 5 grams. Sampat Kumar is said to have made a statement under Sec. 108 of the Customs Act and he is said to have stated that he was employed at the firm of Laxminarain Ramratan Sarraf of Hanuman Prasad, the petitioner in another case at Rs. 1,000/- p. m. Since January 15, 1990, and that Hanurnan Prasad was the partner of the said firm and it was at the instructions of Hanuman Prasad that he (Sampat Kumar) was engaged in the business of carrying gold and delivering it to Dhanraj Soni. It was also given out by Sampat Kumar in his statement under Sec. 108 of the Customs Act that earlier on three occasions under the instructions of Hanuman Prasad he had taken gold and delivered to Dhanraj Soni and so far as 10 gold Biscuits recovered from him are concerned, after delivery of the same to Dhanraj Soni, he was to receive a sum of Rs. 3,72,000/- from Dhanraj Soni. The said statement is said to have been made voluntarily by Sampat Kumar. Thereafter, Hanuman Prasad was issued summons for appearing before the Customs Authorities and he is said to have made confession statement under Sec. 108 of the Customs Act wherein he is said to have made the statement that the had employed Sampat Kumar at Rs. 1,000/- p. m. and that he (Hanuman Prasad) handed over 10 gold biscuits of foreign mark to Sampat Kumar for being delivered the same to Dhanraj Soni in lieu of Rs. 3,72,000/ -. Hanuman Prasad is also said to have admitted that 10 gold biscuits (which were shown to him) were the same which he handed over to Sampat Kumar and that he had purchased the 10 gold biscuits from. Manohar of Ghantaghar Udaipur on about four occasions and on all the above occasions they were sent to Dhanraj Soni by Sampat Kumar.
( 3 ) HANUMAN Prasad was arrested on June 28, 1990 under Sec. 104 of the Customs Act and he alongwith Sampat Kumar is said to have been produced before the Chief Judicial Magistrate (Economic Offences) Jaipur and their applications for bail presented before him were rejected and they were sent to judicial custody.
( 4 ) DHANRAJ Soni was also summoned u
