SAFI MOHAMMED Vs. P G RAMRAKHIANI

JUDGEMENT

(1.) These two writ petitions by two petitioners under Articles 226 of the Constitution of India arising out of same incident, can be disposed of by a common judgment.

(2.) The petitioners Shafi Mohammed and Nizam Mohammed Abdulla of the two petitions had challenged the detention order dated 20th November 1997 passed by the Additional Chief Secretary to the Government of Gujarat, Home Department, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "COFEPOSAA"). The grounds of detention are contained in Annexure.B to the writ petitions.

(3.) In brief, the facts are that, acting on a specific information from the Customs Officer, surveillance was kept at Ahmedabad Railway Station on 8.2.1997 when Shatabdi Express train was to arrive at Platform No.1 from Mumbai. Two passengers alighted from the said train at about 1.35 p.m. They were identified and on preliminary inquiry, they introduced themselves as Nizam Mohammed and Shafi Mohammed. Their search was taken and 81 capsule shaped packets were found and upon opening of these capsules, two notes each of 500 denomination of different foreign currencies were found, the details of which are given in the grounds of detention. The other foreign currency notes whose details are given in the grounds of detention were also found. The recovery memo was prepared. The petitioners failed to show documents showing legal possession for foreign currencies. As such, the foreign currencies were seized by the Customs Officers in presence of recovery witnesses. They suspected that the foreign currencies were to be exported from India. As such, the same were confiscated under the Customs Act. The statements of the petitioners under Section 108 of the Customs Act were recorded on 8.2.1997 itself. The extracts of the statements are contained in paragraph 2 of the grounds of detention which indicate that the petitioners confessed that they were carrying foreign currency notes for delivery at Sharjah. They also narrated about other incidents in which they were involved and how the foreign goods were brought and sold by them. Their addresses were verified and ultimately, after preliminary interrogation, they were produced before the Additional Chief Metropolitan Magistrate, Ahmedabad in custody on 9.2.1997. Criminal cases and adjudication proceedings were initiated. The petitioners applied for bail on 23rd February 1997 in the Court of Additional Metropolitan Magistrate, Ahmedabad which was rejected on 3rd March 1997. The Sessions Judge also rejected their bail applications on 1st May 1997. During the trial, the petitioners pleaded guilty whereupon they were sentenced to undergo eight months' RI inclusive of the period already undergone during inquiry and trial and were also ordered to pay fine of Rs.2,000.00. After completion of the period of sentence, they were released on 11.10.1997. The respondents were not satisfied with the sentence awarded to the petitioners. Hence, a revision was filed in this Court on 6.10.1997 for enhancement of sentence. The said revision is reported to be pending before this Court. Before the petitioners were released on 11.10.1997, the Commissioner of Customs, Ahmedabad, in the capacity of sponsoring authority, submitted the proposal for the petitioners' detention under COFEPOSAA which was received by the detaining authority on 1.10.1997. Certain holidays intervened between 1.10.1997 to 20.11.1997. Ultimately, the detaining authority passed the impugned orders of detention against the petitioners on 20.11.1997. The petitioners have challenged these orders against them in these writ petitions on the following grounds: