STATE OF KERALA Vs. SHANTILAL CHOK

JUDGEMENT

(1.) In O.P. No. 1755 of 1982 the petitioner prays to call for the records relating to the proceedings of the 2nd respondent, the State of Kerala, leading to the order of detention against the petitioner and to issue a writ of mandamus or any other writ or order or direction quashing the order of detention dated 18tb April. 1980 passed against the petitioner by respondents 1 and 2 and prohibit them from executing the said order. It is alleged in the original petition that the 1st respondent had issued the detention order dated 18th April, 1980 against the petitioner as well as against Yogesh Shantilal Choksi who is the respondent in Writ Appeal 305 of 1982 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act') arising out of one and the same incident, and that the aforesaid Yogesh Shantilal Choksi filed O. P. No. 5552 of 1981 and this Court was pleased to quash and set aside the order of detention passed against the said Choksi as illegal. The above writ appeal has been fried by the State of Kerala, represented by the Chief Secretary, and Special Secretary, Home Department, Secretariat, Trivandrum who are the respondents in the O. P. 5552 of 1981 challenging the order passed by a learned single Judge of this Court quashing and setting aside the order of detention passed against Choksi who is the petitioner in O. P. No. 5552 of 1981. Since the writ appeal arises out of the same incident and the points raised in both the O. P. and the writ appeal are the same, both are disposed of by a common judgment.

(2.) The facts leading to the issue of the order of detention impugned in these cases may be stated in brief as follows:

(3.) The Collector of Central Excise thereafter served a show cause notice dated 7th April, 1980 on the petitioner and eight others directing them to show cause why action should not be taken against them under the provisions of the Customs Act in respect of the seizure of the said silver ornaments. The allegations in brief as set out in the show cause notice were to the effect that the petitioners in the writ petitions and others were carrying the said articles in an attempt to export without obtaining the necessary Government approval and that consequently the said silver items were liable to confiscation and that the petitioners were liable to be penalised for the violation of the provisions of the Customs Act. The petitioners sent replies denying the allegations. In the said replies the petitioners reiterated their statements that the confession statements were obtained by coercion and under duress. It was also stated therein that since the silver items in question were found at a place about 110 miles away from Trivandrum Air Port, by no stretch of imagination it could be suggested that there was an attempt to export the silver items through Trivandrum Air Port. It was also stated that an amount of Rs. 25,000/- was seized from him and that it was taken by him to buy handicrafts and ivory goods at Trivandrum. It was further stated that because of the restrictions on the export of the silver articles and items he was concentrating on local market for the sale of jewellery and articles and Sri. Choksi the respondent in W. A. No. 305 of 1982 had accompanied the petitioner with similar goods as be was having necessary experience about the local market. The Collector by order dated 7th August 1981 returned the sum of Rs. 25,000/- seized from the petitioner, holding that no violation of law has been proved in respect of the currency. However, the Collector was pleased to confiscate all the silver jewellery and articles weighing 260 Kgs. and also 95 Dirhams of LJ. A. B. currency taken charge of by the Customs from the car on the 5th November, 1979 and imposed a penalty of Rs. 50,000/-on the petitioner for violation of the provisions of the Customs Act under S.114 of the Customs Act. The petitioner had preferred an appeal against the said order to the Central Board of Excise and Customs and the order passed by the Collector of Customs imposing penalty, was set aside holding that no case of attempt of smuggling was established and the case made out by the Customs Officials at best only amounted to preparation. The petitioner further stated that in the first week of March, 1982 the petitioner contacted bis advocate in Bombay in connection with the hearing of the appeal before the Central Board of Excise and Customs, New Delhi and it was at that time the petitioner's Advocate brought to the notice of the petitioner that against the order of detention passed against Choksi he filed a writ petition O. P. No. 5552 of 1981 and this Court was pleased to set aside the detention of Choksi was illegal. He also stated that he was told that the said order was dated 18-4-1980 and during the hearing of the writ petition the grounds of detention of the said Choksi were placed before this Court and it was noticed that while passing the order among other things the respondents had not considered the show cause memorandum issued to Sri. Choksi as well as the retraction made by him from bis alleged confessional statement dated 5th November, 1979. It was further averred that even though the said detention order was not actually executed by serving the same on him, the petitioner was in imminent danger of arrest since the said order was liable to be executed by the Officers of the respondent and there was danger of the petitioner being taken into custody and placed under detention in some jail in the State of Kerala where the petitioner had no relatives or friends and the petitioner would be put to irreparable injury in the event of such eventuality.