ASHADEVL WIFE OF GOPAL GHERMAL MEHTA DETENU Vs. K SHIVRAJ ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF GUJARAT

JUDGEMENT

(1.) On September 29, 1978 the detenu herein was directed to be released forthwith on his detention order being set aside and we had stated that we would give our reasons for our order later which we do presently.

(2.) By a detention order passed on January 4, 1978 under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA') the detenu Gopal Ghermal Mehta was detained by the Additional Chief Secretary to the Government of Gujarat (respondent No. 1) with a view to preventing him from engaging in transporting smuggled goods. The grounds of detention were served upon him on the same day i.e. on January 4, 1978. Briefly stated the grounds disclosed the following material against the detenu:On receipt of certain information on December 12, 1977 by the Customs Officers of Ahmedabad, the said officers had kept a watch for a Fiat Car No. GTI-6020 and the said car with five occupants was intercepted in the early hours of December 13, 1977 near Naroda Railway Crossing and the occupants (the detneu and four others) were taken to the Customs Divisional Officer, Paldi, Ahmedabad for examination. The detenu and the other four occupants of the car denied that they were carrying any smuggled gold or prohibited articles; but on search of one of the occupants Sheveram Atmaram Chandwani two cloth bags were recovered from him, in one of which there were 27 gold bars of foreign marking weighing 19 tolas valued at Rs. 21,600 and in the other there were 18 pieces of gold bearing 'Trishul' mark valued of Rs. 1,94,400. Chandwani in his statement before the Customs Officers stated that the two bags which he was carrying on his person belonged to the detenu who was dealing in Silver and Gold in Udaipur and that he was merely a carrier who used to receive remuneration of Rs. 100 per trip from the detenu. Two statements of the detenu were recorded by the Customs Offcers on December 13, and 14, 1978, in which he corroborated the version of Chandwani but added that the entire quantity of foreign marked gold and the 'Trishul' marked gold belonged to one Prem of Chandni Chowk, Delhi, for and on whose behalf he was carrying the gold from Delhi to Udaipur and from Udaipur to Ahmedabad for disposing it of to two persons, namely, Poonamchand Laxmanji and Bhagubhai in Ahmedabad. The detenu also stated that this had been going on for about six to eight months and that he had made five to six trips in a month and on each such trip he used to carry 2 1/2 to 3 kgs. of gold. He further admitted that the Fiat Car in question had been purchased for this purpose for Rs. 15,000 which money had been provided by Prem. He further stated that after disposal of the gold belonging to Prem at Ahmedabad he used to carry the sale proceeds to Prem and account for the same at the time of the next transaction between him and Prem.

(3.) Counsel for the petitioner (being the wife of the detenu) did not dispute that the aforesaid material disclosed in the grounds was prima facie sufficient to show the detenu's involvement in the racket of smuggling gold, namely, trasnporting smuggled gold from Delhi to Udaipur and from Udaipur to Ahmedabad but he challenged the detention order on the ground that procedural safeguards had not been followed vitiating the requisite satisfaction on the part of the detaining authority under S. 3 (1). It appears that when the interrogation of the detenu was going on while he was in custody of the customs Officials, Smt. Devyantiben Shah, an Advocate of the detenu addressed a letter as also a telegram, both dated December 14, 1977, making a grievance about the wrongful restraint and illegal custody of the detenu by the Customs Officers beyond 24 hours and expressing apprehension that the detenu had been so detained with a view to obtain confessional statements against his will. The receipt of the letter was disputed but the Assistant Collector of Customs admitted the receipt of the telegram from the Advocate on December 15, 1977. By his reply dated December 15, 1977 sent to the Advocate, the Assistant Collector denied the allegations made in the telegram. Admittedly on December 14, 1977, the Advocate had gone to the Customs Officer and had sought permission to remain present at the time of the interrogation of the detenu but her request was not acceded to as the Customs Officers were of the view that there was no provision in law permitting an Advocate to remain present at the time of interrogation. Further on this occasion the Advocate was told that the detenu will be produced before the Magistrate at 5-30 p. m. on that very day and, therefore, she waited in the Magistrate's Court up to 5-30 p. m. to obtain bail for the detenu but as the detenu was not produced the Magistrate declined to pass any order on the bail application. On December 15, 1977 the detenu was produced before the Magistrate who remanded him to Customs custody for five days in spite of opposition by the Advocate. On December 20, 1977 the detenu was again produced before the Magistrate and even on this occasion bail was refused but the detenu was remanded to judicial custody permitting further interrogation by Customs Officers. On December 22, 1977 while he was in judicial custody the detenu was interrogated by Customs Officers and his statement was recorded on that day but the detenu refused to sign the same and instead made an endorsement that his earlier statements dated December 13 and 14, 1977 and the facts stated therein were not correct. In other words, in his statement dated December 22, 1977 the detenu had resiled from his earlier confessional statements and had squarely repudiated the facts stated therein. On January 3, 1978 the Advocate of the detenu made another application for getting him released on bail as the period of remand was to expire on 4th January 1978 and that application was fixed for hearing on January 6, 1978 but on January 4, 1978 itself while the detenu was in Judicial custody the Additional Cheif Secretary to the Gujarat Government (respondent No. 1) passed the impugned order under S. 3 (1) of the 'COFEPOSA' and the detenu was detained thereunder.