BALE RAM Vs. SHANKER LAL

JUDGEMENT

(1.) This criminal writ is directed against the order of detention dated 31-3-1986 passed by Shri M.L. Wadhawaa, Additional Secretary to the Government of India specially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 (As Amended) who felt satisfied about the passing of the same with respect to 0m Prakash S/o Harbans Lal r/o 5/23, West Patel Nagar, New Delhi (hereinafter to be referred to as the "detenu") with a view to preventing him from smuggling goods, engaging in keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting and concealing smuggled goods and who further ordered that the detenu be detained and kept in custody in Central Jail Tihar, New Delhi. The petitioner Harbans Lal is the father of the detenu.

(2.) The allegations, as per the grounds of detention, are that a specific information was received from Deputy Commissioner of Police, South by the Directorate of Revenue Intelligence on 19-3-1986 that large quantities of contraband goods were in possession of the detenu reportedly owner of "New Lahore Dairy" at Shadipur Main Bazar and that the contraband goods had been hidden in his premises No. 5/23, West Patel Nagar, New. Delhi, Consequently, officers of Directorate of Reveue Intelligence conducted search of detenu's house No. 5/23, West Patel Nagar (1st Floor) New Delhi in the early hours of 20-3-1986 and as a result of the search wrist watches, watch movements watch parts, foreign liquor and other goods of the total value of Rs. 21.86.330.00 were recovered from the aforesaid house and the same were seized under a panchnama dated 20-3-1986. The detenu bad made a number of trips to Hong Kong between 10-S2-85 and 19-3-86 when he is allged to have brought the seized articles. He was arrested on 20-3 1986. He was, however, granted bail by Sbri V.B.Bansal, Additional Sessions Judge, New Delhi vide his order dated 29-3-1986.

(3.) The learned counsel for the petitioner pointed out that five witnesses were kept present by the detenu on 29-4-1986 which was the date of hearing before the Advisory Board and the detenu's legal adviser intimated the presence of those witnesses to the Advisory Beard and by the testimony of those witnesses the de?epu varied to pr've that the premises No. 5/23. West Patel Nagar, New Delhi in which th e alleged contraband was found were cot the premises in possession of 'be certinu who in fact. lived at some other place, viz.. House No. 267!, Shedipur Main Bazar, New Delhi and further that a false confession had been extorted from him by the use of third degree methods. It was further pointed out by the learned counsel that the Advisory Board told the ocunsel of the detenu that it would not examine those witnesses and instead suggested that their affidavits should be filed. On these allegation it was urged that the detenu, thus lost an opportunity of examining his witnesses in defence wl'ercss he was within his right to have those witnesses examined and that the Advisory Board violated his constitutional right as declared by the Supreme Court in A.K. Roy v. Union of India AI'R 1982 S.C. 7:0 (at p 751, para!C5) which is set out below :-