RAJINDER ANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has sought quashment of detention order dated September 7. 1988, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') and the declaration issued under Section 9(1) of COFEPOSA Act.

(2.) The facts, in brief, are that on August 14, 1988, the Delhi Police had apprehended Mohideen and K. Mohd. Kunhi, who were riding a two-wheeler scooter and from the tool box "of the scooter four semi-spherical pieces of gold, twelve rods of. gold collectively weighing 886 gms. and Rs. 7,020 in cash were recovered and as they failed to furnish any satisfactory explanation regarding their legal possession of the gold, they came to be handed over to the officer of the Directorate of Revenue Intelligence and both of them were interrogated on that day as well as on the following day and on the basis of the statement made by K. Mohd. Kunhi, their residential premises were searched from where 142 pieces of white coloured wire, which on examination were found to be made of gold and four car speakers, twentytwo cooking gas lighters, fourteen Umbrellas, two entry tickets for I G I Airport, oae paper slip bearing telephone numbers of Koli and the petitioner were recovered and seized under the Customs Act. The gold was found to be of 24 carat purity. In their statements, it was revealed that one Ahmed Ali of Dubai had been instrumental hi sending the con traband gold and on. his instructions these tyo persons used to get is touch with the- passengers arriving by flights from Dubai and used to receive the baggage ia which the gold used to come (July concealed and be smuggled gold used to be handed over to Mohideen by Mohd. Kunhi for being disposed of and the proceeds of the gold used to be Sent to Ahmed Ali through hawala thansactions. The modus operandi disclosed in the statements used to be that on receipt of information from Dubai on telephone regarding the arrival of the particular passenger, Mohd. Kunhi used to receive the passenger and take over the baggage items and after taking over the concealed gold used to self the same to M/s. Kumar Jewellers with the help of the petitioner. The petitioner also was arrested on August 25, 1988 and made the statement to the Customs Officers admitting that he had been engaged by Ahmed Ali of Dubai for disposing, of the smuggled gold and he was to act Ra. 20 per 10 gms. of gold after selling the gold. The sale proceeds were to be handed over to one Kamal and the gold in question, which was recovered from the scooter, was stated to have been taken from one passenger named Gopi who had arrived from Dubai and was to be handed over to the petitioner for being sold but as Mohad. Kunhi and Mohideen had been arrested the transaction could not go through. On the basis of these facts, the impugned orders have been made against the petitioner.

(3.) Counsel for the petitioner has submitted at first that the impugned orders suffer from the vice of non-application of mind in as much as in the grounds of detention in the first paragraph. the following words appear which are totally factually incorrect.