ABDUL RAHIMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) In these writ petitions the detenus who are detained under S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ('the COFEPOSA Act' for short) have challenged their detentions.

(2.) The petitioners were part of the crew of a vessel (fishing trawler) Al-Sahara. These petitioners are Pakistani nationals, though this has no material bearing on the questions raised in the writ petitions.

(3.) The authorities of the Customs Department and DRI had information that silver was being smuggled into India from abroad. On the basis of this information they boarded Coast Guard vessel Varuna on 13-4-9l. After two days of continuous sea patrolling the Coast Guard Vessel was on the waters of Malpe area on 15-4-91 and at about 10-05 hours the aforesaid fishing trawler Al-Sahara was sighted. The officers found the movement of the vessel suspicious and the said fishing trawler tried to move away from the Coast Guard Vessel on seeing the Coast Guard Vessel by changing its course. The coast guards fired a few warning shots and chased the trawler to bring it to a halt. Thereafter the members of the crew of the trawler identified themselves and gave the name of the trawler but no acceptable material was produced about the registration of the vessel and the members of the crew had no sea man card/identity card, etc. These facts are found in the grounds of detention as also in the affidavit filed on behalf of the respondents. The members of the crew revealed that the trawler was carrying 255 gunny rapped packages containing silver ingots brought from Khorfakkan for the purpose of smuggling them into India. The said trawler was thereafter brought to Mangalore Port along with its 7 crew members. The master of the trawler was the first petitioner herein (Abdul Rahiman). The authorities investigated further in the presence of the witnesses. The officers found 255 gunny packages containing silver ingots which were kept in the forward position, aft position and also in the engine room of the trawler. The officers also found the silver ingots bearing foreign markings. Thereafter these gunny packages were loaded into a lorry and were taken to the DRI office at Mangalore for detailed examination, along with members of the crew and the witnesses, as it was not possible to complete the investigation at the port. The silver ingots were examined and weighed and the certified goldsmith certified the silver ingots to be of foreign origin and the total weight of the silver was 8918.491 kgs. The expert opined the purity of the silver as 999. The value of the silver was at that time was Rs. 6,15,37,588/-. The silver ingots were 285 in number. They were seized, on the reasonable belief that they were smuggled into India, under a mahazar dated 16/17-4-91. The fishing trawler valued at Rs. 7 lakhs was also seized. The statements of the crew were recorded thereafter under S. 108 of the Customs Act. They were also produced before the Magistrate on 18-4-91 after they were arrested on the previous day i.e., 17-4-91. The crew members were remanded to judicial custody. On 25-4-91, the Joint Secretary to the Government of India made the detention orders under S. 3(1) of the COFEPOSA Act (hereinafter referred to as 'the Act'). The orders were served on the petitioners on 30-4-1991. Subsequently a declaration was made under S. 9 of the Act declaring that the petitioners were likely to engage themselves in the smuggling activity in the vulnerable area as stated in the declarations. This declaration was made by the Additional Secretary to the Government of India on 21-5-91. These declarations were served on the petitioners on 4-6-91 along with a corrigendum dated 3-6-91, the later being signed by a Senior Technical Officer of the Government of India, Ministry of Finance. The corrigendum was necessitated because in the declarations reference was made to Government of Maharashtra by mistake instead of Government of India.