HARISH ANAND Vs. UNION OF INDIA

JUDGEMENT

(1.) By means of filing this petition under Art. 226 of the Constitution, Harish Anand-detenu herein is seeking to challenge the order of detention dated January 17, 1995 issued by respondent No. 3, i.e., Additional Chief Secretary to Government of Gujarat, Home Department (Spl.), under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("the Act" for short) and prays to issue a writ of habeas corpus directing his release after quashing the detention order.

(2.) The order of detention was executed on January 30, 1995. The communication dated January 17, 1995 which was served on the petitioner at the time of his detention intimated to him the following grounds on which the order of detention was made by the respondent No. 3 : (i) On December 15, 1993, the vessel MSV-AL-BILAL/PBR- 273 arrived at Bedi Port, Jamnagar with cargo of wet dates. The usual customs formalities were completed and cargo of wet dates was unloaded. In the meanwhile, officers of DRI received intelligence that ball bearings of foreign origin were concealed in the said vessel. Therefore, the officers of DRI and Customs, Jamnagar rummaged the said vessel on December 16, 1993. They recovered 136 packages containing ball bearings of foreign origin from the two diesel tanks fitted in the said vessel. On examination of those 136 packages 1,98,832 pieces of ball bearings of foreign origin valued at Rs. 47,20,970/- were found. Further rummaging of the said vessel on December 17, 1993 resulted in recovery of 55 more packages containing ball bearings of foreign origin which were found concealed in 'Atri' (A space between two wooden planks on the border of the vessel). On examination of those 55 packages, 24,422 pieces of ball bearings of foreign origin valued at Rs. 10,71,068.00 were found. As Abdul Wahab Issa Ker, tindel of the vessel, could not produce any valid documents for the licit import and lawful acquisition of the aforesaid 2,23,254 pieces of ball bearings of foreign origin totally valued at Rs. 57,92,038.00, the same were seized by the officers of DRI under the reasonable belief that they were smuggled into India and were liable to be confiscated under the provisions of the Customs Act, 1962. The vessel AL-BILAL was also seized for taking appropriate actions under the provisions of the Customs Act, 1962. (ii) S/Shri (1) Abdul Wahab Issa Ker (tindel), (2) Adam Juma Chamadia, (3) Osman Ismail Shaikh, (4) Gulam Husen Umar Turk, (5) Anwar Husen Karim, (6) Harun Issak Sodha, (7) Majid Zikar Modi, (8) Aziz Kasam Sameja, (9) Suleman Musa Theim, (10) Junus Usman Mokha, (11) Iqbal Issa Ker, (12) Jabbar Issa Ker, (13) Eliyas Haji Hala, and (14) Abdul Ibrahim Theim were the crew members of vessel AL-BILAL at the time of its seizure. (iii) The investigation revealed that Karim Issa Ker was the owner of the vessel MSV-AL-BILAL PBR-273 and his younger brother Abdul Wahab Issa Ker was the tindel of the said vessel. The said vessel had left with cargo of live-stock from Tuna Port on November 23, 1993 and reached Hamriya Port on November 28, 1993. The tindel, i.e., Abdul Wahab arranged cargo of wet dates of Jamnagar. Meanwhile, Abdul Wahab Issa Ker met one Ali Raja (Jamnagarwala) at Dubai and finalised deal to smuggle ball bearings from Dubai to India on consideration of 10,000 Dirhams. Ali Raja paid 7,000 Dirhams as an advance and informed tindel Abdul Wahab to wait for the telephonic message after reaching Salaya. 60 packages of ball bearings were loaded in the said vessel at Hamriya Port with the help of crew of the vessel. The vessel sailed on December 2, 1993 with the cargo of wet dates as well as ball bearings. The packages of ball bearings were torn and converted into smaller packages by the crew members and the same were concealed in the diesel tank as well as in Atri. The vessel reached at Rozi Port near Jamnagar on December 14, 1993. During the usual custom formalities, the tindel declared the licit cargo of wet dates, but did not declare the ball bearings which were smuggled from Dubai. The vessel was thereafter taken to Bedi Port where the licit cargo of wet dates was unloaded. On December 16 and 17, 1993, the officers of Customs and DRI rummaged the vessel and recovered the packages containing ball bearings of foreign origin as detailed above. (iv) The investigation also indicated that the said vessel had earlier left from Bombay on October 8, 1993 with cargo of onion, potato and reached at Hamriya Port on October 15, 1993. After unloading the cargo, the vessel was brought to Sharjah on October 17, 1993 for some repair work. In the meanwhile, Abdul Wahab Issa Ker (tindel) and Adam Juma Chamadia went to Dubai in search of some cargo for India. One Eliyas Kasam Bhadela of Salaya who was staying in Dubai met Adam Juma Chamadia in a Hotel in Kadar Chowk while Adam Juma Chamadia was taking tea there. Eliyas informed Adam Juma Chamadia that if any vessel was ready to take ball bearings illegally from Dubai, one Ali Raja (Jamnagarwala) was prepared to supply. The tindel showed his willingness for the same on a consideration of 10,000 Dirhams. The tindel Abdul Wahab met Ali Raja and finalised the deal to smuggle 30 packages of ball bearings. The ball bearings were brought in a pickup van and loaded in the vessel. Next day, Abdul Wahab (tindel) went to Dubai and met Alibhai, who gave him 5,000 Dirhams. Alibhai also gave his telephone Nos. 255013, 050523907 and 9746061 of Dubai and Abdul Wahab (tindel) gave his brother's telephone No. 286 of Salaya. Alibhai also informed him to remember the name "Harish" and told Abdul Wahab that he (Ali Raja) would give instructions on telephone for delivery of ball bearings after the vessel reached Salaya. The vessel finally sailed for Salaya. On way, big 30 packages of ball bearings were converted into smaller packages and concealed in the diesel tank. The vessel arrived at Salaya on November 1, 1993 and tindel went home after completing the usual customs formalities. Abdul Wahab met Osman Ismail Shaikh in Salaya and informed him that he (Abdul Wahab) had smuggled the packages of ball bearings and conviced him to keep the packages of ball bearings in his (Osman's) house for a consideration of Rs. 2,500.00 for a night. The packages of smuggled ball bearings were transhipped from the vessel AL-BILAL to the house of Osman Ismail Shaikh in two trips by a tony. In the first trip of the tony, Babu Karsan and Eliyas Haji Hala had gone while in the second trip of tony, Adam Juma Chamadia, Eliyas Haji Hala, Majid Jikar Modi and Babu Karsan had gone. (v) On November 3, 1993, Abdul Wahab received a telephone call from Ali Raja of Dubai, who wanted to speak to Adam Juma Chamadia. Abdul Wahab called Adam Juma Chamadia and informed that Ali Raja would telephone from Dubai. Ali Raja telephoned from Duabi and spoke to Adam Juma Chamadia and gave the name and address of the Delhi party to whom the smuggled ball bearings were to be delivered. Adam Juma Chamadia was illiterate. Therefore, Abdul Wahab wrote the name and address of the Delhi party on a paper chit and gave the same to Adam Juma Chamadia. Adam Juma Chamadia went to Jamnagar the next day and approached one Chetanbhai of Ranjit Roadlines of Jamnagar for despatching the ball bearings to Delhi. Chetanbhai refused to book the goods, as Adam Juma Chamadia had no bills or valid documents for the same. Owners and/or Managers of other transport companies who were approached by Adam Juma Chamadia also refused to book goods, as Adam Juma Chamadia had no bills or valid documents for the same. Thereupon Adam Juma Chamadia approached the detenu at M/s. Jamnagar Golden Carriers Private Limited for despatching the ball bearings to Delhi without bills or valid documents. The detenu asked Adam Juma Chamadia to produce bills or valid documents pertaining to ball bearings. Thereupon Adam Juma Chamadia told the detenu that he had no bills or valid documents pertaining to ball bearings. The detenu asked Adam Juma Chamadia to come the next day with a sample of ball bearing. Accordingly, Adam Juma Chamadia and Osman Ismail Shaikh went to Jamnagar from Salaya with a sample of ball bearing and showed the same to the detenu. The detenu after examining sample of ball bearing agreed to despatch ball bearings to Delhi for a consideration of Rs. 10,000.00. (vi) After returning to Salaya from Jamnagar, Adam Juma Chamadia met Abdul Wahab Issa Ker and informed him that arrangements to despatch the goods to Delhi were finalised for a consideration of Rs. 10,000.00 and collected Rs. 10,000.00 from him. Adam Juma Chamadia also engaged one Jivangar Gangagar Meghnath, a driver of Mugani Transport to transport 181 packages from Salaya to Jamnagar for a consideration of Rs. 1,000.00. Accordingly, 181 packages were transported from Salaya to Jamnagar in a truck bearing registration No. GTY-5567 on November 5, 1993 and the same were delivered to the detenu at Jamnagar Golden Carriers Private Limited at Jamnagar. Adam Juma Chamadia and Osman Ismail Shaikh had followed the said truck on a motor-cycle. The detenu despatched the goods to Delhi in one of his trucks and passed on receipt of goods to Adam Juma Chamadia on two plain paper chits indicating "Please deliver 181 packages of RJT", so that the receiver of those 181 packages could take delivery of the goods from Delhi branch of M/s. Jamnagar Golden Carriers Pvt. Ltd. situated at Roshanara Road, Delhi, as the goods were not accompanied by any valid bills or documents and they were not entered in any bilti. (vii) After despatching the goods to Delhi and obtaining the receipt, Adam Juma Chamadia and Osman Ismail Shaikh again came to Jamnagar from Salaya after 2 to 3 days with the said receipt given by the detenu. Adam Juma Chamadia purchased a cover from a shop in Jamnagar and put the said receipt in the cover. He requested the shop-keeper to write the address of Delhi party which was communicated to Adam Juma Chamadia by Ali Raja through Abdul Wahab Ker. Adam Juma Chamadia and Osman Ismail Shaikh despatched the said cover to Delhi through Pandya Couriers, Jamnagar. Inquiries made with Pandya Couriers, Jamnagar indicated that one cover addressed to Harishkumar, Multani Thada, First Floor, Pahadganj, House No. 8811, Street No. 4, Delhi, Phone No. 735278 was sent by Adambhai (i.e., Adam Juma Chamadia) from Jamnagar on November 9, 1993. However, the said cover appeared to have been received back in Jamnagar office of Pandya Couriers as unserved. On examination of the said cover in presence of the panchas on December 19, 1993, it was found to contain paper receipt indicating "Please deliver the 181 packages of RJT" signed by the detenu which was given to Adam Chamadia by the detenu. (viii) As regards the delivery of those 181 packages at Delhi, one person who disclosed his identity as Harishkumar, approached the Delhi Branch office of Jamnagar Golden Transport to take delivery of those 181 packages. The Manager S. K. Agnihotri (Mishraji) asked for the bilti, whereupon Harishkumar informed that he was not having any bilti, but he was the person to take delivery of the goods and asked Mishraji to speak to Jamnagar office for confirmation. Thereupon, Mishraji telephoned to Jamnagar office from Delhi and spoke to the detenu and detenu instructed Mishraji to deliver those 181 packages to Harishkumar. Accordingly, the said 181 packages were delivered to Harishkumar in Delhi. (ix) Abdul Wahab Issa Ker met Ali Raja in Dubai in the last week of November 1993 for finalising deal to smuggle second consignment of ball bearings. Ali Raja had informed Abdul Wahab Issa Ker that ball bearings smuggled in the first trip had reached the destination. The statement of Adam Juma Chamadia indicated that ball bearings under serizure, if not seized would have been despatched to Delhi through the detenu. (x) On consideration of materials placed before it, the detaining authority was satisfied that Abdul Wahab Issa Ker and Adam Juma Chamadia had played an important role in smuggling ball bearings from Dubai to India and Adam Juma Chamadia had also played an important role in making arrangements for transporting the smuggled ball bearings from Salaya to Jamnagar and from Jamnagar to Delhi. The detaining authority was convinced that Osman Ismail Shaikh played an important role in making arrangements for temporary storage and transportation of smuggled ball bearings from Salaya to Jamnagar in addition to smuggling the same. The detaining authority was satisfied that the detenu played an important role in despatching the smuggled ball bearings from Jamnagar to Delhi in one of detenu's trucks for a consideration of Rs. 10,000.00. The detaining authority, therefore, with a view to preventing the detenu from engaging in transporting smuggled goods passed the impugned order of detention.

(3.) It is not in dispute that the procedural requirements enjoined by the Act and Art. 22(5) of the Constitution have been complied with by the detaining authority, Advisory Board and the State of Gujarat.