MOHAMMAD SEDDIQ YOUSUFI Vs. UNION OF INDIA

JUDGEMENT

(1.) The present writ petition under Section 226 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 essentially in the nature of writ of habeas corpus, has been initiated by the petitioner Mohammad Seddiq Yousufi (hereinafter referred to as 'the detenus'), seeking quashing and setting aside of the impugned detention order bearing F.NO. PD-12002/19/2010-COFEPOSA dated 13.12.2018 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') issued against him.

(2.) The brief facts stated are that on 13.06.2018, the Air Intelligence Unit (AIU) of Cochin International Airport Ltd (CIAL), Nedumbassery received an information from CIAL screening staff, who were engaged in screening of checked-in baggage for departure, that they have identified a suspicious baggage. The baggage belonged to the detenu, Mohammad Seddiq Yousufi, an Afghan national. He was travelling from Kochi to Dubai in Emirates Flight No. EK 533. He was issued a boarding pass allocating seat No.11A alongwith checked-in baggage tag bearing No.EK28548. In presence of witnesses and detenu, one checked-in bag was examined and found to contain foreign currencies i.e. US Dollars and Saudi Arabian Riyals which were found concealed inside one sky-blue coloured electric rice cooker of make "Red cherry", one electric coil stove of make "Polomix G Coil Hot Plate" and 6 nos. of readymade shirts. On counting inventory, it was found he was carrying USD 14,18,650/- and Saudi Riyals 8,99,500/-. Total Foreign Currency was equivalent to INR 10,94,05,047.50/- (Rupees Ten crores ninety-four lakhs five thousand forty-seven rupees and fifty paisa only). On his personal search, he was found having INR 13,360/-, USD 200/-, UAE Dirham 190/- and Afghani currency 3,680/-. It was personal money of the detenu and according to department, same was returned. In absence of any document to prove acquisition and possession of said foreign currency, same were seized on reasonable belief that those were liable for confiscation under provisions of Customs Act, 1962 read with provisions of Foreign Exchange Management Act, 1999. Packing materials were also seized as same were liable for confiscation under Section 119 of the Customs Act, 1962.

(3.) Statement of detenu was recorded on 14.06.2018 under Section 108 of Customs Act, 1962. Statement of detenu was recorded by Shri. Sunil Kumar, Inspector of Customs in presence of an independent witness as he could not write any language. According to detenu, currency was given to him by one Barullah Khan, who has money exchange shop located at 3 minutes distance from Durga Mandir. On receiving money from Barullah Khan, he packed same inside the bag alongwith clothes. He was asked to hand over same to a person at Dubai, who would contact him on reaching Dubai. He had met Barullah Khan 3 months back when he sold smuggled cigarettes. He further submitted that Barullah Khan was introduced to him by a person named Hamidullah who is a smuggler friend from Afghanistan. The detenu was arrested on 14.06.2018 under Section 104 of Customs Act, 1962 for having committed offence punishable under Section 135 of Customs Act, 1962. He was produced before Additional Chief Judicial Magistrate (Economic Offence), Ernakulam and was remanded to judicial custody for period of 14 days upto 28.06.2018 and his arrest was communicated to Afghanistan Embassy on 15.06.2018. Subscriber of mobile number used by detenu was found to be Bacha Khan, a citizen of Afghanistan. Information received from External Affairs Ministry indicated that initially detenu was given tourist visa and later he was issued business visa. Travel documents perused by department and materials collected indicate detenu purchased ticket on 05.06.2018 for travelling from Dubai to Delhi on 06.06.2018 and from Delhi to Dubai on 12.06.2018 on payment of USD 330 by cash. On 12.06.2018, ticket for Delhi to Dubai was upgraded to Business Class by paying USD 414. All ticketing is done by cash at Kabul through travel agency by name GSA Kabul Air India.