SUSHILABEN BHUPATBHAI THADESHWAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Mahendra Prasad, Joint Secretary to the Government of India, on being satisfied with respect to Bhupatbhai Popatlal Thadeswar (Soni), husband of the petitioner that with a view to preventing him from abetting the smuggling of goods, it was necessary to pass an order of detention, passed an order under Section 3 of the COFEPOSA Act on 4 -12 -1989. The detenu's wife has challenged that order in this petition.

(2.) On prior information that the detenu andone Mohanlal Soni were to transport 75 to 100 pieces of foreign marked gold biscuits from Bombay, concealed in car No. NPP -3603 of GJG -7270 of Maruti, car No. 73238 on 3 -9 - 1929, the Central Excise Officers of Ahmedabad, kept a watch near the house of the detenu. After waiting near his house for some time, they raided the same and while the search was going on, the detenu, Mukeshbhai and one Kanubhai arrived at that place. Person of the detenu was searched, but nothing was found from him. From Mukeshbhai, 3 pieces of primary gold weighing 8.750 grams valued at Rs. 2,700/ - were recovered. Further, inquiry revealed that Mukeshbhai had come from Bombay in a car bearing No MFY -3603. After obtaining keys of that car from Mukeshbhai it was searched and from that car, 75 foreign marked biscuits were recovered. Fiat car No. GJG -7270 belonging to the detenu was searched, but nothing was found from that car. From the house of the detenu, some documents and a suitcase belonging to Mukeshbhai were found. It is further stated that the detenu's statement was recorded on 4 -9 -1989, wherein he admitted that he knew Mukeshbhai since about 8 years being his relative. It is further stated that during last 3 months, Mukeshbhai had come to Ahmedabad with foreign marked Lagadies and used to sell the same in Ahmedabad. The detenu is alleged to have been recovering money from the customers to whom Mukeshbhai was selling the same. For collecting the money, the detenu was paid Rs. 5/ - per tola as admission charges. These are in short the allegations made against the detenu.

(3.) What is urged by the learned Counsel appearing for the petitioner is that the detaining authority in this case has passed the detention order without proper application of mind inasmuch as even though the detenu was not at all concerned with the abetment of smuggling, he has been detained on that ground. As stated earlier, detention order has been passed by the detaining authority with a view to preventing the detenu from abetting the smuggling. If we look at the grounds, therein also it is stated that the detenu was engaged in abetting smuggling of gold. Only act which is alleged to have been committed by the detenu is that he used to recover, since about 3 months, price of the gold sold by his relative Mukeshbhai and for that purpose, he was paid commission at the rate of Rs. 5/ - per tola. The grounds do not disclose as to who was concerned with the importation of the gold which Mukeshbhai used to bring from Bombay and sell in Ahmedabad. There was no material before the detaining authority to show that the detenu was a member of an organized gang which was engaged in smuggling gold. There was no material to show there was a part of the whole design of smuggling gold and disposing the same in India, Mukeshbhai had entrusted the work of collecting the money to the detenu. Even though detenu knew Mukeshbhai since about 8 years because he happens to be his relative, it was only since 3 months that he had started collecting money for Mukeshbhai. He was in no way connected with sale of the gold to any of the customers as Mukeshbhai was a doing the same on his own. Under the circumstances, it is difficult to appreciate how the detenu can be said to be engaged in the activity of abetting smuggling of gold.