KUBICDARUSZ Vs. UNION OF INDIA

JUDGEMENT

(1.) Mr. Kubic Dariusz, a Polish national, holding a Polish passport arriving in Calcutta by air from Singapore via Bangkok was arrested on 29-4-1989 under Section 104 of the Customs Act, by the officers of the Customs Department attached to Calcutta Airport, on the ground that he was carrying in his possession foreign gold weighing about 70 tolas. On 30-4-1989, he was produced before the Chief Judicial Magistrate, Barasat who remanded him to jail custody till 15th May, 1989. He was interrogated by Intelligence Officer when he made, corrected and signed his statements in English. His application for bail was rejected by the Cheif Judicial Magistrate. While still in custody, he was served with the impugned detention order dated 16-5-1989 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as 'the COFEPOSA Act, along with the grounds of detention. On 24-5-1989 he was granted bail by the Calcutta High Court but the same could not be availed of because of the detention order which is now being challenged in this petition.

(2.) The detention order was passed with a view to preventing the detenu from smuggling goods; and it stated that the detaining authority, namely, the Additional Secretary to the Government of India in the department of Revenue, Ministry of Finance, was satisfied that the detenu was likely to smuggle goods into and through Calcutta Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) of the COFEPOSA Act. In the grounds of detention it was stated, inter alia, that arriving at Calcutta by Thai Airways the detenu opted for the Green Channel meant for the passengers not having any dutiable and/or prohibited goods for customs clearance and proceeded towards the exist gate; that he declared that he did not have any gold with him, but on search 7 gold bars weighing 70 tolas valued approximately at Rs. 2,71,728/- deftly concealed between the inner soles of the left and right sports shoes in specially made cavities were recovered; that in his voluntary statement before the customs officer he admitted the recovery; that he had been able to learn English as he was with some Engilish people during the period of 2nd Kedardham Expedition or Kedarnath dham Expedition in the year 1987 and he was also learning English when he was in France in the year 1985; that scrutiny of his passport revealed that he visited Delhi on 6-2-1989 and 21-2-1989, Trichi on 22-4-1989 and Calcutta on 29-4-1989 that he admitted to have been in India in 1986, 1987 and 1988; and that on chemical tests the sample was found to be containing 99..9% of gold.

(3.) Mr. Shankar Ghosh, the learned counsel for the petitioner assails the detention order primarily on two grounds, namely, that the detenu knew only the Polish language and did not know English wherefore he was unable to read and be informed of the grounds of detention given in English and he was not given the grounds of detention in a language understood by him so as to enable him to defend himself; and that the representation submitted by him was not considered, acted upon or replied to at all by the detaining authority wherefore the detention order was liable to be quashed as violative of Art. 22(5) of the Constitution of India.