ABU Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Petitioner is the brother of the detenu under Conservation of Foreign Exchange and Prevention of Smuggling Activities -Act, 1974. The detenu was working in Das Island, U.A.E. He returned to India on 13-4-1987. On 27-5-1987, the detenu approached the office of the Kerala State Industrial Enterprises Ltd., attached to the Cochin Customs with the Air Way Bill No. 098-4736 1904 dated 10-5-1987 for taking delivery of the consignment covered by the above air way bill. Out of the four cartons three cartons were found opened. The detenu was told by the officials of the Kerala State Industrial Enterprises that the cartons were received in such a condition and that they were not in any way responsible for it. The detenu obtained an endorsement from the Kerala State Industrial Enterprises to that effect. The cartons were produced before the Customs Officers for examination. The fact that the cartons were tampered with was also brought to their notice. The detenu gave a declaration in the prescribed form regarding the contents of the cartons and an application for condoning the delay in despatching the goods from U.A.E. The Customs Officers examined the packages and assessed a duty of Rs. 19,680/-. The detenu paid the amount. The Customs Officers examined the packages once again and they recovered 47 gold biscuits and another small piece of gold from the air-conditioner. That happened on 27-5-1987. The search list is Ext. P5. The detenu is alleged to have made a voluntary statement Ext. P-6 on 27-5-1987 to the Preventive Officer. In Ext. P6 the detenu stated that he was working in U.A.E. since 1977 as a waiter in a canteen run by M/s. Spinnys in one of the Oil Rigs at Das Island, that he was getting a monthly salary of U.A.E. Dhms. 4000/-, that on his return after leave from India in January 1987 he was informed by his employer that he need join duty only if he consented to work for a salary of R. Dhms. 2000/- per month, that he decided not to work for the reduced salary and wanted to return to India, that he stayed with his brother at Abu Dhabi until he returned to India on 13-4-1987, that he had given Dhms. 5000/- to his four friends by way of loans, that he could not collect the same prior to his departure to India, that his friend Ismail agreed to collect the loan amounts due to him and also promised to purchase and send some articles which the detenu wanted for his use, that Ismail had told him that he desired to send some articles for himself including an air-conditioner along with other articles which the detenu wanted for his use and that Ismail had also told him that he will be sending some gold biscuit's concealed in the air-conditioner and wanted him to hand over the same to a person authorised by him in writing. He also stated that he received a letter from Ismail on 45-5-1987 stating that he had concealed 47 1/2 gold biscuits in the air-conditioner and that he had made arrangements to pay the detenu a reward of Rs. 25,000/-. He stated that he destroyed that letter.

(2.) The detenu was produced before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam on 28-7-1987 and was remanded to judicial custody. He was later released on bail by the Magistrate.

(3.) The detenu was further questioned by the Superintendent, Customs, "Cochin on 16-6-1987 and a statement was recorded under S.108 of the Customs Act, 1962. On 31-7-1987 the detenu was questioned again by the Superintendent, Cochin Customs and recorded a statement under S.108 of the Customs Act, 1962. The Additional Collector of Customs initiated adjudication proceedings against the detenu by issuing a show cause Notice No.S-14/161/87 Pr.Cus. dated 15-9-1987. A true copy of the show cause notice has been marked as Ext. P-12. The detenu submitted a reply to Ext. P-12 show cause notice. The reply has been marked as Ext. P-13. In Ext. P-13 the detenu retracted his earlier statement Ext. P-6. In Ext. P-13 the detenu took the stand that he was forced to sign Ext. P-6, statement by the Customs Officials. He further stated that he had no pre-arrangement with Ismail for smuggling the gold, that he did not receive any letter from Ismail in this regard, and that there was no promise by Ismail to pay any consideration to him. The Collector of Customs by order dated 22-12-1987 ordered confiscation of the gold and the air-conditioner and also imposed a penalty of Rs. 25,000/- on the detenu. The detention order was passed under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act against the detenu. On 1-l-1988, the first respondent served on the detenu the grounds on which the detention was made with particulars of documents sought to be relied upon. A true copy of the memo dated 15-12-1987 forwarding the grounds of detention is Ext. P16. True copy of the grounds of detention served on the detenue is Ext. P-17. Ext. P-18 is the true copy of the list of documents furnished to the detenu along with the grounds of detention. The second respondent issued the declaration under S.9(1) of the Act and it was served on the detenu on 11-2-1988. The detenu submitted a representation before the first respondent and requested him to peruse the entire records relating to his detention and cancel it. The detenu was informed by the first respondent that his request has been rejected. On the basis of the Advisory Board's report the detention of the detenu was confirmed by the first respondent by order dated 23-3-1988 and also fixed the period of detention as two years effective from 31-12-1987.