PARMENDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition for a writ of habeas corups, the petitioner. Pariminder Singh. seeks quashing of the order of detention passed on 16th September 1981 by Shri V. B. Gujral, Additional Secretary to the Government of India, the officer who was specially empowered under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as 'COFEPOSA'). The order was passed under Section 3 (1) of the Act with a view to preventing the petitioner from smuggling goods. A copy of the same has been annexed as Annexure 'A' The petitioner, however, was detained on 3rd September 1985 i.e., after about four years of passing of the order and is at present lodged in presidency jail, Calcutta. The petitioner has taken various grounds to challenge the legality and validity of the order of detention and also his continued detention, but it is not necessary for us to deal with all of them as in our opinion the petition must succeed on the first ground urged by Mr. Harjinder Singh. learned counsel for the petitioner. That piea which has been raised throughout i e. in the petition and before the Single Judge, who has noticed it in a reference order and also during arguments before us, is that as the Advisory Board refused to record the evidence of the petitioner's wife and further refused to take on record the documents which she had in her possession and were shown to the Board on the 4th November 1985, the date on which it met to consider the case of the petitioner, his continued detention is vitted.

(2.) To appreciate this contention few facts may be noticed. The petitioner was apprehended at Dumdum Air Port on 11th May 1981, when he arrived at Calcutta from Thailand by Thai Airways Flight No. TO 311. The intelligence report received earlier by the customs officers had indicated that he had been smuggling watches from Bangkok in conivance with some Thai Diplomats at Calcutta. It appears that certain smuggled goods were recovered from the baggage of one Mrs. B. Chand Shobhe who bad also travelled by the same flight. The petitioner was produced before the Judicial Magistrate on 12th September 1981 who remanded him to judicial custody till 19th May 1981. He was, however, released on bail on 16th May 1981. The order of detention was passed on 16th September 1981. The petitioner moved the Calcutta High Court for a writ of mandamus seeking quashing of the detention order. It appears that ad-interim order staying the operation of the order, copy annexure 'A', was passed on 18th December, 1981. This order was, however, vacated on 15th June 1982. But the petitioner, as noted above, was detained only on 3rd September 1985. His case it that by not detaining him earlier it has to held thai the subjective satisfaction arrived at by the detaining authority in passing the detention order on 16th September 1981 was 'neither real nor genuine'. It is urged that the petitioner was available during the period at Calcutta where he is doing business. In his representation made on 4th November 1985 to the Advisory Board, he had sought permission to get the statements of three witnesses including the statement of his wife who was present on that day and who had brought documentary evidence in support of the petitioner's contention, berecorded.

(3.) In the counter affidavit filed by the Central Government the presence of the petitioner's wife on the day the Advisory Board met was not admitted. In reply to paragraphs 13 to 18 of the petition wherein the pleas, which have been summarised above, have been raised it was submitted as under: