G LAKSHMIKANTAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in this petition is to the order of detention passed in exercise of powers under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing Shri G. Kumar, from smuggling goods. The petition has been filed by the brother of Sh. Kumar. Briefly the facts, emerging from the grounds of detention, are these : - On 26/03/1989 Sh. Kumar holder of Malasian passport arrived as a Passenger at Madras international Airport from Kaulalampur by Malasian Air lines Flight No. MH-032. Sh. Kumar was questioned by the Customs Intelligence Officer as to whether he had kept concealed any gold or any other contraband in his baggage. He replied in the negative. The attache case of Kumar was found to be unusually heavy even after emptying its contents the bottom recksene cover of the said attache case was ripped open by the Customs Officer and it was found that a false bottom cavity had been made in the bottom portion of the said attache case. The bottom plywood sheet was broken open and removed and three packets covered by blue carbon paper were found affixed in the inner surface of the said plywood sheet, struck to the plywood with White cellotape. The said three packets were found to contain one gold bar each. Each gold bar was of one kilogram. Thus, in all, three gold bars each weighing one kg were recovered. The said gold bars bore foreign markings. Kumar was not in possession of valid permit or licence for the import of the said gold. The gold and the other articles were seized. On the same flight one Shri Alocious accompanied by his accomplice Ms. Jenifer Change Shni Guek both holding Malasian passport also arrived at Madras International Airport from Kaulalampur. From their bags also the gold concealed in almost same manner was recovered. Kumar and the aforesaid two persons in their statement before the (customs Officer stated that they were acting as carrier for transportation of gold for one Shri Brahman of Singapore and they deliberately attempted to smuggle gold into India for monetary considerations. Kumar was arrested on 27/03/1989. Bail application dated 27/03/1989 of Kumar was rejected by Additional Chief Metropolitan Magistrate, Madras. However, on his bail application dated 20/04/1989, the High Court of Madras granted conditional bail which was not availed of. The impugned order of detention was passed on 17/05/1989.

(2.) Learned counsel for the petitioner submits that the detenu had written a letter dated March 1989 to the Collector of Customs, Madras, wherein he specifically retracted his statement given before the Customs Officers and the failure to place the said vital documents before the detaining authority vitiates the order of detention. In the reply affidavit filed by Shri A. N. Batavyal, Joint Secretary to the Government of India it has been pleaded that the said letter was not received in the Customs House and as such was not placed before the detaining authority. It has, however, been pleaded that the Court documents concerning the Additional Chief Metropolitan Magistrate and the High Court of Judicature in respect of bail petitions filed by the detenu were duly placed before the detaining authority.

(3.) The failure to place letter dated 30/03/1989 before the detaining authority by itself will not vitiate the detention if the detaining authority was alive to the fact that the petitioner had retracted his statement. The application for grant of bail filed before the Additional Chief Metropolitan Magistrate and the High Court of Madras was duly placed before the detaining authority. The grounds of detention refer to the bail application dated 20/04/1989 filed on behalf of the detenu before the Madras High Court which granted conditional bail. The grounds of detention also refer to the bail application filed on behalf of the detenu before the Magistrate on 27/03/1989 and the orders made thereupon. It also refers to the orders dated 27/03/1989 made by the Additional Chief Metropolitan Magistrate, inter alia, stating that the accused complains of ill treatment by Customs Officers and there is small swelling on his right hand. Copies of the bail applications placed on record contain the retraction made by the detenu. It is, thus, evident that the detaining authority was alive to the fact of retraction made by the detenu. The decision of Supreme Court in Mohammed Towfeak Mohd. Mulaffar @ M.T. M. Mulaffar v. Addl. Secretary to Govt. of Tamil Nadu, Writ Petition (Criminal) 602/89 decided on 23/02/1990 relied on by counsel for the petitioner does not support the petitioner as in the said decision the detention was quashed as on facts the Court came to the conclusion that the detaining authority was not alive to the fact that statement which it described as voluntary was in fact retracted. The Supreme Court held that if after being alive to the fact of retraction the detaining authority would still have reached the conclusion that it was voluntary, that would have been a different matter with which the Court would not have interfered.