BARHANUDDIN TAHEVALI BILASPURWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner by this petition filed under Artcle 226 of the Constitution sought a writ of Habeas Corpus or any other writdirection or order requiring the respondents to set him at liberty forthwith.The petitioner was a detenu under the Conservation of Foreign ActivitiesExchange and Prevention of Smuggling Act, 1974 (for short 'the COFEPOSAAct'). There are three respondents. First is the Union of India throughthe Secretary in the Ministry of Finance in the Department of Revenue.The second is the Administrator of the Union Territory of Delhi and thethird is the Superintendent, Central Jail, Tihar, New Delhi. This petitionwas filed on 16/03/1993.

(2.) The second respondent, the Administrator of the Union Territoryof Delhi, passed an order on 16/08/1991 in the exercise of powers conferred upon him by Section 3(1) read with Section 2(f) of the COFEPOSAAct on his satisfaction that it was necessary to detain the pe,titioner with aview to preventing him from smuggling goods and also preventing him fromengaging in transportation, concealing and keeping smuggled goods, infuture, this order was served upon the petitioner on 19/08/1991 whilehe was in the judicial custody in the Central Jail, Tihar, New Delhi.

(3.) It is not necessary for us to go into the grounds on which theorder - of detention was passed by the second respondent except to note thatthe petitioner was arrested on 2/06/1991 under the provisions of theCustoms Act, 1962, on his arrival from Kualalumpur at the Indira GandhiInternational Airport, N. Delhi. Two kgs. of primary gold of 24 carat puritywas recovered from the petitioner which was in the shape of two gold barsweighing one kg. each and the market value of winch was Rs. 7,40,000.00.For offences under the Customs Act the petitioner was in judicial custodywhen the order of detention under COFEPOSA Act was clamped upon him.The pstitioner challenged his detention in this Court by filing a petition ofHabeas Corpus under Article 226 of ths Constitution. This was his firstcriminal writ. The order of detention was quashed by this Court by orderdated 10/03/1993. In the trial for offences under the Customs Act asmentioned aforesaid the petitioner was convicted for offences under Sections132 and 135 (1)(a) of the Customs Act. By order dated 15/01/1993of the learned Additional Chief Metropolitan Magistrate, New Delhi, thepetitioner was sentenced to undergo rigorous imprisonment for six monthsfor an offence under Section 132 and to undergo rigorous imprisonment for1-1/2 years for offence under Section 135(1)(a) of the Customs Act. Thepetitioner was also sentenced to pay a fine of Rs. I lakh and in default toundergo simple imprisonment for a further period of three months. Boththese sentences were ordered to run concurrently. Against his convictionand sentence the petitioner filed an appeal under Section 374 of the Code ofCriminial Procedure in the Court of Sessions. The learned AdditionalSessions Judge who heard the appeal reduced the period of sentence imposedon the petitioner in default of payment of fine from three months to 1months. The learned Additional Sessions Judge also directed that the petitioner would get the benefit under Section 428 of the Code of CriminalProcedure. This was byjudgment dated 27/02/1993.