LAWS(MAD)-1992-7-28

TAYAB MOHAMED SODA Vs. STATE OF MAHARASHTRA

Decided On July 22, 1992
TAYAB MOHAMED SODA Appellant
V/S
STATE OF MAHARASHTRA AND ANOTHER Respondents

JUDGEMENT

(1.) K.M. Natarajan, J. These two writ petitions are filed by the concerned detenus under Art.226 of the Constitution of India seeking for the issuance of writs of habeas corpus quashing the orders of detention dated 23.10.1990 and set them at liberty. Since both the detention orders were passed on the same ground case, both the petitions were clubbed together and disposed of by a common order by consent of both parties. On 23.10.1990 the impugned orders of detention were passed by the first respondent in exercise of the powers under Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974), hereinafter referred to as the Act, with a view to preventing them from smuggling goods. It is to be noted that though the writ petitions were originally against two respondents, including the Union of India, represented by Secretary to Government, Ministry of Finance, Department of Revenue, New Delhi, the learned counsel for the petitioners did not press the petitions in so far as the second respondent is concerned and he confined the relief only against the first respondent, the detaining authority.

(2.) THE facts which led to the passing of the impugned orders can be briefly stated as follows: On 3rd July, 1990, these detenus and 8 others were found roaming near Reveas Jetty, all drenched in water. THEy were questioned and apprehended by the Assistant Port Supervisor, Reveas Jetty, with the help of Police constables. Later, they were taken to the Division office of Customs, Alibag. After the Inspector of Customs (Preventive), Mandwa port was being informed, the interrogation of the detenus and their companions revealed that all of them were crew members of one vessel, A-1-Haj and they sailed from Doha Port in Dubai, with 150 silver ingots, weighing around 33 Kgs. each, for the sole purpose of smuggling the immense quantity of silver ingots to India and that the vessel developed leakage before they could reach their destination and it sank in the sea with the silver ingots. It also revealed that they managed to reach the nearest sea shore where they were rescued by a fishing vessel which dropped them at Mandwa Port in the early hours of 3rd July, 1990. THEreafter they walked to Revas in the hope of catching a Bombay going vessel and they were apprehended at the place. THE statements of these detenus and their 8 companions were recorded under Sec.108 of the Customs Act. THEy were arrested on 6.7.1990.THE Second Additional Judge, Raigad, Aliba, passed an order of release of them on bail on 1.8.1990 on their executing a P.R. Bond for Rs.4,000 each with a solvent surety in the like amount, subject to further condition that they should attend the customs custody daily till the investigation is over. THE customs challenged the bail order in the High Court of Bombay, and the High Court passed an order on 11.9.1990 to the effect that since the complaints are not filed within 60 days as per Sec.167(2), Crl.P.C, the relief has become infructuous. However, the accused/detenus were directed not to leave Raigad District without the permission of the magistrate. Hence, they continued to be on bail. It is only in these circumstances, after observing all the formalities, the impugned orders of detention were passed. THE detenus in these two cases were served with the orders on 7.1.1991 while they were in custody of the Central Prison, Tiruchi. THEreafter they were continued to be kept there in execution of the orders. THE detenus in both the petitions challenged the impugned orders before this Court on various grounds.

(3.) FIRST we raised a question with regard to the maintainability of the petitions before this Court, since the impugned orders were passed by the first respondent in respect of an incident which took place within the jurisdiction of the High Court of Judicature, Bombay. We directed the learned Additional Public Prosecutor Mr.I.Subramaniam, to assist the court on the question of maintainability of the petitions.