CHATURBHAI BECHARBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Three brothers Kantilal Bechardas Patel Ishwarlal Bechardas Patel and Ambalal Bechardas Patel all partners of a firm of Angadias trading in the name of Angadia Patel Ishwarlal Bechardas & Co. have been detained under three separate detention orders all of 5th May 1978 by the Additional Chief Secretary in the Home Department of the Government of Gujarat in exercise of powers conferred by sub- sec. (1) of sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA) with a view to preventing them from engaging in transporting smuggled goods. The fourth brother Chaturbhai Becharbhai Patel has filed these three Habeas Corpus writ petitions challenging the orders of detention-Ann. A to each petition on the ground that the detention order in respect of the three detenus is illegal mala fide and not warranted in law and for a consequential direction to the respondents to forthwith set the detenus at liberty. As. common questions of law and fact arise in all these three writ petitions . we propose to dispose them of by this common judgment.

(2.) The grounds for detention-Ann. C to each petition also dated * * * * * * * * firm of the three brothers in a sealed Kamaria which was kept in what das popularly known as Jokham Theli and was brought and delivered to Ambalal at Ahmedabad. Ambalal then arranged to send the said gold through either the said employee or another employee of the firm by a State transport bus to his brother Kantilal at Rajkot who in turn delivered the gold to one Chandulal Jethalal Bhindi @ Chandu Bhindi in Rajkot. The payment for the gold was received from the aforesaid Chandu Shindi which was sent to Ishwarlal at Bombay for payment to Jadavji through the employees of the firm. The remittances were shown in code in the invoices Bharatias of the firm. It is the allegation of the respondents that during the period from 30th December 1977 to 31st January 1978 remittances to the tune of Rs. 5 83 0 were made by Ishwarlal to the suppliers of gold at Bombay. In view of this modus operandi adopted by the three detenus and their employees a watch was kept on their activity and in pursuance of this watch an employee of the firm namely Kantilal Hargovandas Patel was apprehended with a packet containing 10 gold bars of foreign origin weighing 100 to lash valued at Rs. 79 0 on 1st February 1978 from the State Transport. Bus Stand at Ahmedabad while he was on his way to Rajkot. The details leading to this red handed apprehension of the employee Kantilal Hargovandas Patel have been set out in the grounds of detention furnished to the detenus as under: On 31st January 1978 the officers of the customs department at Ahmedabad were in possession of information that the three detenus were engaged in transporting gold of foreign origin from Bombay to Rajkot. They had come to know that the employees/carriers of the firm of the three detenus leave with gold from Bombay for Ahmedabad by the Gujarat Mail and on their reaching Ahmedabad the gold was transported to Rajkot next morning by the State Transport bus leaving for Rajkot around 8.00 Oclock. The customs officers had also learnt that the detenu Kantilal was receiving the gold at Rajkot through the employees of the firm and he was selling the said gold at Rajkot to Chandu Bhindi and other purchasers of gold. In pursuance of this is information which the officers of the customs department at Ahmedabad had received vigil was kept at the State Transport Bus Stand at Ahmedabad on the morning of 1 February 1978 At the bus stand that morning they apprehended Kantilal Hargovandas Patel an employee of the firm of the detenus with a blue coloured cloth bag and the search of that cloth bag revealed that he was carrying 10 gold bars bearing foreign marks each of 10 to lash of the total value of Rs. 79 0 The customs officer seized the said 10 gold bars in the reasonable belief that these bars were smuggled goods liable to confiscation under the provisions of the Customs Act 1962 There were several other articles which were found from the cloth bag of the firms employee Kantilal Hargovandas Patel but it is not necessary to mention them. The statement of the said Kantilal Hargovandas Patel was recorded on the same day wherein he disclosed that he had been serving the firm since 1974 and that on 33th January 1978 he was asked by the detenu Kantilal at Rajkot to proceed to Ahmedabad to bring the gold from detenu Ambalal. Accordingly he left Rajkot by Kirti Express on the night of 30th January 1978 and reached Ahmedabad on the morning of 31st January 1978 He worked at the office of the firm at Ahmedabad on 31st January 1978 and also passed the night at the premises of the firm and on the next day i. e. 1st February 1978 at about 7 00 A. M. detenu Ambalal gave him the packet containing 10 gold bars with directions to leave for Rajkot by 8.00 Oclock bus and to deliver the packet to Kantilal at Rajkot. He placed the packet containing the gold bars in the blue coloured hand has took a rickshaw and reached Ahmedabad Central State Transport Bus Stand and while he was waiting to board the bus for Rajkot he was apprehended by the officers of the customs department. He also disclosed in his statement that ordinarily Joytaram another employee of the firm was used for the purpose of carriage of gold from Ahmedabad to Rajkot and he was paid an additional amount of Rs. 40 per trip by the detenu Kantilal at Rajkot on the delivery of gold to him. He stated that in the absence of contrary he was directed to bring the gold from Ahmedabad to Rajkot and the detenu Kantilal had promised to pay an additional amount of Rs. 40.00 for the trip. The further statement of Kantilal was recorded on 2nd February 1978 wherein he stated that besides Jyotaram another employee by the name Dinesh was also used for the purpose of carriage of gold to Rajkot and he had learnt from Jyotaram that the gold was being supplied by detenu Kantilal to Chandu Bhindi of Rajkot. The photograph of Chandu Bhindi was show to this witness and he identified the same. Yet another statement of this employee was recorded on 20th March 1978 wherein he stated that detenu Ishwarlal had visited him at his village Karsanpura on 23rd February. 1978 with a view to impressing upon him to file an affidavit to the effect that his earlier two statements recorded on 1st February 1918 and 2nd February 1978 were the result of threats duress and pressure but he refused to oblige. He also stated that even thereafter attempts were made to bring pressure on him to file an affidavit statingthat the earlier statements were not correct but he refused to sign aay such false affidavit

(3.) The premises of the firm were also searched at Ahmedabad by the officers of the customs department on 2ad February 1978 and 3rd February 1978 Nothing incriminating was found during the said two searches. Certificate articles and account books of the firm were however attached under a seizure memo. Statements of other employees of the firm namely Kaluji Samnaji Khemchand Ishwardas Patel Satraji Godaji Jyotaram Bhikhabhai Patel Dinesh Nathalal Kodecha and others were recorded during the inquiry by the customs officers and they too revealed the aforesaid modus operandi employed by the three detenus for the purpose of carrying gold from Bombay to Rajkot via Ahmedabad on different occasions. These have been set out in the grounds of detention in tabular form and it is not necessary to make a mention thereof in this judgment. Suffice it to say he. It during the inquiry conducted by the customs officers after the apprehension of the employee Kantilal Hargovandas Patel the customs officers had reason to believe that the three brothers the detenus herein were engaged in transporting gold from Bombay to Rajkot. via Ahmedabad. In the course of the inquiry the statement of Jadavji of Bombay who is alleged to be the supplier of gold was also recorded on 17 February 1978 It may at this stage be mentioned that out of those employees whose statements were recorded during the course of investigation four employees namely (1) Shannalal Girdharlal (2) Kanubhai Thobhandas Patel (3) Dinesh Nathalal and (4) Jyotaram Bhikhabhai Patel have Sled affidavits in support of the petitions to the effect that their statements were recorded after they were belaboured by the customs officers and under threats of dire consequences if they refused to make statements involving the three partners of the firm in the activity of transporting gold from Bombay to Rajkot via Ahmedabad.