SURESH Vs. UNION OF INDIA

JUDGEMENT

(1.) These two writ petitions involve common questions of facts and law and are being disposed of by this judgment.

(2.) The detention orders dated March 28, 1988, have been passed against the petitioners separately under Section 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to the "COFEPOSA Act") in order to prevent the petitioners from smuggling gold or abetting the smuggling and engaging in transportation or concealing or keeping smuggled gold. As a matter of fact, on same type of facts and grounds of detention, six detention orders were made. The detention orders in question are being challenged by the learned counsel for the petitioners on two grounds, firstly, that statements which were made by the petitioners and other co-accused under Section 108 of the Indian Customs Act, 1962, in which material confessions were made which are the basis of passing of the detention orders were retracted by all of them before the Magistrate in writing dated March 5, 1988, and the sponsoring authority had not placed the said statement retracting the confession before the detaining authority and as such a material and vital document has not been taken into consideration by the detaining authority before passing the detention orders on March 28, 1988, and thus, the same vitiates the detention orders; and secondly, that the petitioners had moved alongwith other co-accused bail applications and the court concerned had passed the order on March 21, 1988, disposing of the bail applications, still neither the bail applications of the petitioners nor the orders passed by the court declining the bail to the petitioners were produced before the detaining authority and thus, the detaining authority was not aware of the fact on the day the detention orders were made as to whether the petitioners were being confined in Jail and thus, the orders of detention stand vitiated.

(3.) Now coming to the first point, the facts of the case as are evident from the grounds of detention served on the petitioners, in brief, are that the petitioners Suresh alongwith Ramji Vallabh, Ramesh and seven other persons had brought gold biscuits concealed in a battery case in a motor launch from the Gulf and as they had reached the vicinity of Lakshadweep Islands the said motor launch developed engine trouble and started drifting and reached the shores of Suhalipar Valiakara, Lakshadweep, and the launch stood broken and allegedly all of them removed the battery containing the gold biscuits to the un-inhabited said island and concealed the said battery covered with a gunny bag by burying it in a hole dug in the sand. It is mentioned that all those persons were given financial assistance and food etc. by the Administration and they went to their native place and later on they allegedly conspired at Bombay and engaged another motor launch in order to go to the said place for retrieving the smuggled gold biscuits and they associated one Shri Mohammad for this purpose who went to Mangalore and arranged another motor launch belonging to one Subhash with the help of Yadav Subama, petitioner in the criminal writ No. 249/88, and the launch started from Malpe and while this launch reached near Chetlat Island the launch was intercepted by the police. It was mentioned that all of them had made arrangement to show that as if they were going on the said launch for fishing. It was found, however, that all of them had no registration papers or travel documents and they were handed over by the police to the officers of the Customs Department for further investigation. It is mentioned in the grounds of detention, that the Customs Officers of Cochin had earlier combed the Island and had recovered 570 gold biscuits of foreign origin concealed in a battery base hidden in the un-inhabited Island of Suhelipar Valiakara and that the petitioners made statements under Section 108 of the Customs Act admitting all these facts and thus, it was pointed out that the petitioners have been responsible for smuggling the said gold biscuits of the value of Rs. 2.16 crores. So, perusal of the grounds of detention in both the writ petitions make it evident that the detaining authority has based the detention orders on the incriminaing confessions made by the petitioners and other co-detenus. The recovery of gold biscuits had been effected from the un-inhabited Island and obviously that fact did not link by itself to the petitioners or any other of the detenus. The petitioners and others were intercepted by the police when they were in a different motor launch and it is only they were handed over to Customs Officers that the facts came out which implicated the petitioners for the smuggling and transporting of the said gold biscuits. So, only material which was placed before the detaining authority implicating the petitioners was the statements made by the petitioners and others under Section 108 of the Customs Act, 1962.