YAKOOB FARID BHAI Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition for habeas corpus has been preferred for release of the petitioner who has been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein after referred to as the Act.)

(2.) The facts of the case are that at present the petitioner is detained in Central Jail Agra under the provisions of the Act. He was arrested from his house at Ahmedabad on 30-10-1994 under the detention order dated 29-9-1994 issued under Section 3(1) of the Act. His detention was confirmed by order dated 26-12-1994 for a period of one year from 30-10-1994. Copies of these orders are annexures 1 and 2 to the writ petition respectively. One Rafiq son of Ismail Bhai, resident of Panch Pipri, Sutharwadi, Jamalpur, Ahmedabad had organised a tour of passengers form Ahmedabad to Kathmandu, Nepal for visiting all historical places on the way. The fare was fixed Rs. 1,500.00 per passenger. Fifty two passengers, including the petitioner and his brother, paid Rs. 1500.00 each to the said Rafiq who arranged a tourist bus No. GJ-1 Y 26. This vehicle belonged to M/S Durga Travels Ahmedabad. The bus could not go up to Kathmandu and returned from Butwal in Nepal. The passengers of the bus purchased various articles at Butwal. The petitioners did not purchase any article. Receipts for the purchase were obtained by the passengers. On 21-9-1993 at about 2.00 p.m. the bus reached the last check post of Nepal where the purchased articles and their receipts were checked by the Nepali authorities. All the receipts of purchases were collected by Rafiq for showing the same to the Indian Custom authorities for the purpose of assessing the amount of duty required to be paid on the purchases articles. The Custom authorities posted at Rupadihis barrier took the receipts in their possession and directed the said Rafiq to bring the bus there for verification of purchases articles whereupon the bus was taken to the custom barrier on the Indian side. The custom authorities unloaded the goods from the bus and stored the same in their godown. Thereafter Rafiq fled away and the custom authorities detained the petitioner, his brother, driver and cleaner of the bus under the Customs Act. All the four persons were beaten mercilessly and tortured for three days and forced to make their statements at the dictation of the custom authorities Subsequently the petitioner was granted bail. The petitioner and others were not produced before the nearest Magistrate within 24 hours of their arrest and their detention became illegal. After release from jail the petitioner made a representation to the Collector, Custom and Central Excise, Gorakhpur under registered cover dated 15-10-1993 detaining all the circumstances. It was also specifically mentioned in the above representation that statements were taken by the custom authorities under duress and that the articles purchased by the passengers and receipt thereof were wrongly kept in possession by the custom authorities. All the passengers who had purchased the articles were prepared to pay the duty. The petitioner did not receive any reply to the above representation, a copy of which is annexure-3 to the writ petition. On 29-9-1994 grounds of detention were also given to the petitioner along with the detention order. No recovery memo of any article was made from the possession of the petitioner and his brother. The goods were taken into possession from the bus at the time when none was sitting inside the bus. On 16/11/1994 the petitioner handed over his representation to the Jailor. Central Jail, Agra against his detention. A copy of his earlier representation dated 15-10-1993 was also annexed along with this representation. The petitioner was produced before the Advisory Board on 25-11-1994. On that day it was revealed that the jail authorities did not send his representation dated 16-11-1994 to the State Government. The Advisory Board could not get the advantage of looking into the petitioner's representation dated 16-11-1994. The papers annexed with the grounds of detention were not legible. The State Government did not inform the Central Government about the detention order of the petitioner within time. The order confirming the detention of the petitioner for one year was served on him in jail. The report of the sponsoring authority was not annexed with the ground of detention. The Panchanama prepared on the spot specifically mentioned that nothing was recovered from the possession of the passengers. It is not possible to believes that the petitioner who belongs to a petty artisan family would have purchased foreign goods worth over Rs. 11,00,000.00. The entire story of smuggling as set out in the grounds of detention is false and concocted. The detention of the petitioner has been wrongly obtained by the authorities concerned. No other passengers was arrested even though they had made purchases. It is further alleged that there is no proximity between the alleged smuggling dated 21-8-1993 and the detention order dated 29-9-1994 and as such the detention order is illegal. There is no evidence that the petitioner was involved in smuggling activities on 29-9-1994 or immediately before that date. The petitioner cannot be said to be in exclusive possession of the goods purchased. He neither carried the goods with him nor was be organisor of the tour. The detention of the petitioner violates his fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India. The COFEPOSA confers power to detain a person but the manner in which the power shall be exercised has not been detailed in the Act. The requirement of rule of law is that the deprivation of personal liberty and life of the person should be strictly in accordance with the procedure established by law. The Act does not provide such a procedure and in absence of such a procedure the power of detention cannot be validly exercised. The detaining authority did not apply his mind in an intelligible manner and the order of detention was passed mechanically. The alleged smuggled goods were not recovered from the possession of the petitioner but they were recovered from the bus.

(3.) In the counter affidavit filed by Sri Kuldip Sharma it is alleged that the petitioner has been detained under the COFEPOSA and he was arrested by the Gujarat Police on 30-10-1994 under the orders of the State of U.P. The representation of the petitioner was received in the office of the Jailor on 17-11-1994 and on the same day the representation was sent to the State Government by special messenger. This representation was dismissed on 19-12-1994 and information about the dismissal of the representation was conveyed to the petitioner on 23-12-1994. The Advisory Board met on 25-11-1994. The State of U.P. has confirmed the order of detention dated 26-12-1994 for the year. In another counter affidavit which has been sworn by Sri Rohit Nandan the State has alleged that proposal for passing the detention order under the Act was received form the Collector, Customs, Patna on 7-4-1994 and after examining the said proposal at various levels the Government was satisfied that the petitioner should be detained under the Act as he was indulging in smuggling activities. Along with the grounds of detention the petitioner was also supplied documents as mentioned in the list of annexures. It is wrong to say that Rafiq contacted the custom authorities for payment of the duty. The bus along with the passengers was stationed at about 30 yards inside the India territory and some persons who were on bicycles and were standing near the bus fled away seeing the customs authorities. The customs authorities had prior information about the bus which contained smuggled goods. The list of the smuggled goods was prepared and statements of the persons were taken on the spot. The accused persons were produced before the Judicial Magistrate at 7.45 on 23-8-1993. No coercion was exercised when the statement of the petitioner was recorded. The representation of the petitioner dated 17-11-1994 submitted to the Superintendent, Central Jail. Agra was sent to the State Government by special messenger vide letter dated 17-11-1994 which was received by the State Government on 19-11-1994 whereupon a note was put up on 21-11-1994 as 20-11-1994 was Sunday. Comments of the Customs Department were invited on 23-11-1994 and they were received on 25-11-1994. The petitioner was also heard by the Advisory Board on 25-11-1994. The representation of the petitioner and the comments of the Department were placed before the Advisory Board on the date of hearing. The detention order was passed by the State Government on 29-9-1994 and the papers were placed before the Joint Secretary for sending the same to the Government of India on 6-10-1994. As the customs authorities had supplied less number of copies they were requested to submit six more copies of proposal immediately which were supplied on 10/10/1994. Thereafter the State Government forward a report to the Central Government under Section 3(2) of the Act through special messenger which was received on 12-10-1994. The report of the sponsoring authority was not supplied to the petitioner on the ground of public interest. There is no violation of fundamental right of the petitioner under Articles 19 and 21 of the Constitution of India. It is further alleged that on 28-11-1994 an office note was put up on the representation of the petitioner and the same was examined by the Joint Secretary on 29-11-1994 and thereafter the same was examined by the Special Secretary on 2-12-1994 and by the Secretary, Home and Copan on 3-12-1994 and thereafter it was sent for orders of higher officers and the same was rejected on 17-12-1994.