BALVINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) These two habeas corpus petitions are interlinked and, the grounds of challenge and rebuttal being same, therefore, are disposed of by this common judgment. Learned counsel for the parties made similar submissions in respect of the two petitions and requested that they may he heard and disposed of together. Petitioner in each case in interned in Central Jail Tihar, New Delhi, pursuant to detention order passed by the Joint Secretary, COFEPOSA, Govt. of India, Ministry of Finance, Department of Revenue, New Delhi (hereinafter referred to as Detaining Authority) under Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (in short the Act).

(2.) The basis ol detention was as follows:- Acting on the basis of specific intelligence that a consignment of contraband gold was being transported to Delhi concealed in a Mahindra Jeep bearing No. DL8C B 5044, the officers of DR1 intercepted the said jeep after if entered Delhi near Delhi Police Cheek post at Singhu Border on 12-2- 1999 at 13-15 hours. The two occupants of the jeep including the person who was driving the jeep were escorted to DR1 office at l.P.Bhawan, New Delhi along with the jeep for conducting the search since the place Of interception was not proper for this purpose. On arrival at the ground floor of l.P.Bhawan two independent witnesses were called to witness the search of the jeep and of the persons of its occupants. The person who was driving the jeep at the time of interception introduced himself as Balvinder Singh, petitioner in Crl. W. 159/2000. The other person who was silling besides him introduced himself as Jaswinder Singh, petitioner in CrI.W. 190/2(XX). Both the petitioners arc hereinafter referred to as detenu by their respective names. Though initially both the petitioners denied having any contraband gold they subsequently admitted concealment of gold in a cavity in the jeep. After thorough search 9 bundles wrapped with thick adhesive tapes were found in the vehicle, containing 88 yellow metal bars of 10 tolas each which were found to have markings indicating their foreign origin. A certified goldsmith was called for assaying the yellow metal bars. He tested all the 88 yellow metal bars and found them to be of 24K.9990 carats purity, totally weighing 10,260.880 grams valued at Rs.45,04,491.-. Since both the detenus could not produce any evidence - documentary or otherwise - to show the licit import/posscssion/transportation, the said bars alongwith cloth and adhesive tapes were seized by the officers under the provisions of Section 110 of the Customs Act, 1962 (in short Customs Act) under the reasonable belief that the gold bars were smuggled and were liable to confiscation. Some documents were also seized. Notices were issued to each of the detenus under Section 102 of the Customs Act and they gave in writing that they did not went to be searched before a Gazetted Officer or a Magistrate. Proceedings under the Customs Act were initiated and on the basis of the materials on record they were arrested and produced before a criminal court. Though lower Courts had refused bail, this Conn granted bail and detenus were released from judicial custody. Both the detenus were granted hail by orders of this Court dated 13-6-1999. On the basis of material placed before him the detaining authority came to the conclusion that both the detenus had the inclination and propensity to indulge in smuggling activities and unless prevented they are likely to indulge in such prejudicial activities in future. Accordingly order of detention in each case was passed They filed applications for speedy trial on 11-3-1999 wherein it was mentioned that both of them had given retractions in Gurumuikhi to the Superintendent, Tihar Jail on 14-2-1999 who had kept the said retractions with him and told them to give the same in Hindi or in English. In reply to a communication dated 5-7-1999 sent by DRI, the Deputy Superintendent Central Jail No. 4, Tihar intimated vide letter dated 6-7-1999 that detenu Jaswinder Singh had neither submitted any retraction in Gurumuikhi on 14-2-1999, nor was he told to submit application in Hindi or English. However, a retraction application in Hindi submitted by him .on 25- 2-99 was forwarded to the Addl Chief Metropolitan Magistrate's Court on 26-2-1999 by the jail authorities.

(3.) Representations were made to the detaining authority and the Central Government which were rejected.