SAHIL JAIN Vs. UOI

JUDGEMENT

(1.) Petitioner Sahil Jain has approached this Court for issuance of a writ of habeas corpus for release of his father Komal Jain, who has been ordered to be detained and kept in custody in the Central Jail, Tihar by an order dated 11.06.2013 issued under Section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) by the Joint Secretary to the Govt. of India. According to the order dated 11.06.2013, the Joint Secretary was satisfied that the detention of Komal Jain (the Detenue) was necessary with a view to prevent him from smuggling the goods in future.

(2.) Along with detention order, the Detenue was served with the grounds of detention. Before adverting to the challenge laid by the Petitioner, it will be appropriate to have an insight into the grounds which led to the detention of Komal Jain. According to the Detaining Authority, there was a specific information with the officers of the Directorate of Revenue Intelligence (DRI) that the Detenue, who was holding Indian passport No.K 7271778 issued at Delhi on 14.09.2012, was involved in the smuggling of gold/gold articles and is arranging visits of a national of United Arab Emirates, namely Mr. Mana Saleh Sultan Alsuwaidi, (MSSA), holding diplomatic passport no. P ARE 0025401 issued on 16.03.2010 at Abu Dhabi by the Minister of Foreign Affairs, United Arab Emirates, (UAE). Said MSSA was presently posted as Commercial Attache in UAE Embassy in Delhi. The DRI had specific information that the Detenue would be arriving on 11.03.2013 from Singapore by Flight No.SQ 406 at IGI Airport, New Delhi and would be smuggling in gold/gold articles of foreign origin from Singapore either by himself or carrying the same in the baggage of earlier said MSSA with his consent and knowledge with the intention to misuse the diplomatic immunity available to MSSA.

(3.) In pursuance of the specific information, the DRI arranged two independent witnesses near the exit gate of the customs arrival hall. On 11.03.2013 at about 6:00 a.m., the DRI officers intercepted the Detenue while he had crossed the green channel in the arrival hall. The Detenue was confronted with the specific information. On conducting Detenue's personal search, certain documents including an unsigned printed invoice no.54840 dated 09.03.2013 (torn at the bottom) towards the sale of assorted gold jewellery weighing 536.63 gms. (purity 18 Ct.) and 32028.70 gms. (purity 22 Ct.), total gross weight 32565.33 gms., total pure weight 29960.10 gms., valued at US$ 1,581,556.47 issued by M/s. Aspire International Trading LLC, 1001, City Tower 2, Near Crown Plaza Hotel, Sheikh Zayed Road, P.O. Box 118583, Dubai-UAE were found. Thereafter, the DRI officers intercepted another person, namely, MSSA, who was accompanied by a lady passenger Ms. Bahareh Salmani. MSSA was told about the specific information available with the DRI officers. The DRI officers then requested MSSA that in view of the specific intelligence they would like to search his baggage and that MSSA had a legal right to get his baggage examined before a Magistrate or a Gazetted officer of Customs/DRI. MSSA refused to allow the examination of his baggage and claimed diplomatic immunity. Ms. Bahareh Salmani was also requested by the DRI officers to declare the goods being carried by her. She also refused to declare the goods being carried by her in her baggage. Ms. Bahareh Salmani informed the DRI officers that the two baggages being carried by her contained the personal belongings of MSSA. MSSA agreed that the baggages carried by Ms. Bahareh Salmani belonged to him. The DRI officers informed the concerned officers in the Ministry of External Affairs. At about 10:15 a.m. two officers from MEA, namely, Shri Rakesh Adlakha, Deputy Chief of Protocol and Shri Jaladhi Mukherjee, Protocol Officer reached the arrival hall of IGI Airport. Mr. Mansour Mohamed Alijuwaied, Second Secretary from UAE Embassy at New Delhi also reached there. The earlier said three officers spoke to MSSA and persuaded him to allow examination of his baggage in view of the specific information available with the DRI officers. A notice under Section 102 of the Customs Act, 1962 was served upon MSSA, who agreed for examination of his baggage. MSSA gave his willingness to examine the baggage in presence of the Gazetted Officers of the DRI. The examination of the two brown coloured bags (one hand bag and one stroller bag) carried by MSSA resulted in recovery of assorted gold jewellery/gold articles weighing 36565.33 gms. valued at Rs. 9,79,77,154/- as per Annexure "A" and "B" to the Panchnama dated 11.03.2013, assayed by Jewellery Appraiser present at the spot. Another laminated Jute bag of Emirates (Beige coloured) containing personal effects purportedly of Shri Komal Jain (i.e. Detenue) as detailed in Annexure "C" to the Panchnama dated 11.03.2013 was also searched.