MOHAMCD ALI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS petition is by one Mohammed Ali under Art.226 of the Constitution for issuance of a writ of habeas corpus challenging the detention of his brother -in -law Mr.C.P. Mohammed in pursuance of an order passed under Sec.3(l)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter called -COFEPOSA - Act) with a view to preventing him from engaging in transporting, concealing and keeping smuggled goods.

(2.) THE case against the detenu is that on 4.10.1988 while the Officers attached to Headquarters Central Excise Preventive, Coimbatore were keeping surveillance over the passengers alighting from Train No.510 from Calicut at Podanur Railway Station, they intercepted the detenu C.P. Ahamed and subjected him to personal search in the presence of two independent witnesses. The officers found one paper packet kept in his waist fastened to the dhoti worn by him and the packet contained live gold bars with foreign markings -SUISSE 10 TOLAS 999.9 ASSAYEUR FOUNDER - 5 GOLD BARS". The detenu was not having any valid document to show that the gold bars were licit ones. The gold bars were found to weigh 583 grams with 24 carat purity and they were valued at Rs. 1,80,730/ -. On belief that the gold bars were smuggled into India the Officers seized them under a mahazar. On (he same day the detenu gave a statement saying that he was residing in Kerala and was unemployed he told his difficulties to one C.P. Abdul Sathar -his relative and neighbour and his business was to buy foreign goods from people coming from gulf countries for sale he (Abdul Sathar) told him that if could carry gold bars he would get commission and he agreed to that five days before Abdul Sathar took him to Coimbatore and there he introduced him to a person by name Gounder saying that he used to purchase gold bars on 3.10.1988 Abdul Sathar told him that he would have to go to Coimbatore to hand over gold bars to Goundcr and on the next day morning at 7.00 A.M. Sathar himself, as pre -arranged, met him at Chemmad bus stand and Sathar gave him five gold bars with foreign marking wrapped in a paper packet he (detenu) kept the packet in his waist fastened to his dhoti and he travelled in train and when he alightened at Podanur Railway Station he was apprehended and the said five gold bars were seized.

(3.) NOW , in the affidavit filed in support of this petition, it is contended that the detenu is innocent and he has not committed any offence and he was never in possession of the contraband gold. It is further contended that a false and involuntary statement obtained from the detenu by the Central Excise Officers by force, threat and intimidation, and on the basis of that detention order has been passed. Then the detention order is challenged in the affidavit and additional affidavit on several grounds as follows: