HAROON RAIDHAN SAMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The detenu has been taken under detention in exercise of power conferred by section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA) with a view to preventing him from abetting the smuggling of goods. The facts have been set out in the grounds of detention supplied to the detenue. It appears from these facts that one Jumma Amad of Pakistan along with Pinalshah Haji Jamalshah of village Moti Charopadi and Kassam Abdulla Ker of village Kherwand arrived in a country craft from Pakistan sometime in the month of May, 1984 with 17 packages of charas, weighing about 320 kgs. They landed at the coast of Akri (Kutchh) and concealed those Charas packages near the sea-shore. Thereafter, those 17 packages were removed by the said three persons in bullock-carts of the detenu and one Sumar Budha both of Moti Charopadi. The charas loaded in the bullock-cart of the detenu were concealed in the Wadi of the detenu at the instance of Pinal shah, while the bags removed in the bullock cart of Sumar Budha were taken to the residence of Pinalshah. The nine packages which were kept at, the Wadi of the detenue were thereafter removed by Jumma Amad and his associates to the Wadi of Hassam Haji Umar of Kherwand, The packages which were kept at the residence of Pinatshah were removed elsewhere, with which we are not concerned. It is on these allegation that the detenu has been detained for abetting the smuggling of charas.

(2.) The detenu challenges the order of detention on several grounds. We need not mention all the grounds, because the ground of non-application of mind on the part of the Detaining Authority as to the ground on which the detention could be made under section 3(1) of the COFEPOSA is sufficient to dispose of this petition. Under section 3(1) of the COFEPOSA, a detention order can be made on anyone or more of the five grounds set out therein. These are: (1) smuggling of goods, (ii) abetting the smuggling of goods, (iii) engaging in transporting or concealing or keeping smuggled goods, (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. The Detaining Authority must, therefore, show that it had applied its mind to the facts with a view to ascertaining under which clause of section 3(1), the detention order could be made. It has made the detention order on the ground that the detenu was abetting the smuggling of goods. On the facts which we have stated, can it be said that any reasonable man could have come to the conclusion that the detenu was involved in abetting the smuggling of goods? Mr. Thakkar, for the detenu, states that the Detaining Authority has failed to apply its mind to this important and vital aspect, since the facts clearly reveal that no reasonable person could come to the conclusion that the detenu was abetting the smuggling of goods. We think that this submission made on behalf of the detenu is well-founded.

(3.) The basic facts reveal that three persons, namely, Jumma Amad, Pinalshah and Kassam Abdulla were involved in smuggling activity and had brought 17 packages containing charas from Pakistan and had landed the same at the coast of Akri (Kutchh). They were the persons who were responsible for smuggling of goods. They had concealed the goods immediately after they landed the cargo on the coast area itself. There is nothing in the grounds of detention to show that the detenu had in any manner aided, assisted or helped the aforesaid three persons in the act of smuggling of goods.