URJIN LAMA Vs. STATE OF U P

JUDGEMENT

(1.) MALAVLYA, J. Urjin Lama and Tamring Chhong Sherpa have filed these two petitions challenging their detention in pursuance of the order dated 24th January, 1989 passed against them by the State of Uttar Pradesh under Section 3 (1) of the Conservation of Foreign Exchange and revention of Smuggling Activities Act, 1974, hereafter referred to as 'cofeposa'. Since both these petitions are being allowed on a common ground taken in the petition, they are being dispos ed of by a common judgment. We also make it clear that since these petitions are being allowed on one point, we are not considering the other points, which were raised in these petitions.

(2.) THE allegation against the petitioners as per grounds furnished to them was that on 5-12-1988 at about 8. 30 p. m. the Custom Authorities, Gorakhpur signalled Bus No. UAA 9279 going from Soanauli to Delhi near PWD Cottage, Maniraot. After the bus had stopped three Nepali passeugers who appeared to be suspicious were searched in presence of the witnesses, but no objectionable material was found on their person. However, when their boots were taken out, it was found that the boots appeared to be much heavier than the normal boots, when those persons were asked the reason for those boots being unduly heavy, two of the three persons divulged the fact that after getting the cavity made in the sales of the boots, pieces and regular foreign made gold biscuits had been put in those boots. When their names were enquired, they divulged their names as Urjin Lama and Tamring Chhong Sherpa, the two petitioners and one Samte Tamang. After the soles of the boots were removed, from their cacity 35 foreign made gold biscuits and their pieces wrapped in a black tape were recover ed from the boots of Urjin Lame, 3 foreign made gold biscuits wrapped in black tape were recovered from the boots of Tamring Chhong Sherpa and on opening the in side of the sole of Samte Tamang, servant of Urjin Lama, 11 foreign made gold biscuits wrapped in tape were found from his boots. THE three persons were brought to Gorakhpur Customs Officer where a Gold smith was called who after weighing the gold and examining their purity found the gold to be of 24 Carrot purity. THE weight and value of the recovered gold from three persons was assessed 829. Grams of Rs. 2,48,730/-, 874 grams of Rs. 2,62,260/-and 886 Grams of Rs. 2,65,830/-, totalling 7,76,820. When the Customs Authori ties demanded certificate or permission for importing the said gold in the country, none of these three persons could produce any such paper. Being certain that the foreign made gold biscuits had been illegally imported in India from Nepal and after making recovery memo in accordance with law, the Custom Authorities confiscated the gold under Section 110 of the Customs Act. On 6-12-15-1988, the petitioners admitted before the Customs Authorities the recovery of the said gold and admitted that the petitioners alongwith servant Samte Tamang had started from Kathmandu on 5-12-1988 in the morning and had arrived at about 4pm. at Sonauli. After stopping at Sonauli for some time, they and boarded the bus from there to Delhi. THEy also divulged that these persons had gone to the house of Pema Maaang in the night of 4th December, 1989 in Kathmandu when Pema Manang after opening the cavity of the soles of the boots had put the gold biscuits and their pieces therein wrapped in black tape and had then remended the soles. Pema Manang had told them that 220 Tolas had been put in their boots, which they had to take to Delhi. He had also told them that in case the gold was safely delivered at Delhi, they would be paid Rs. 4000 each. Urjin Lama had also stated that as Samte Tamang was his servant, therefore, Rs. 4000 meant to be paid to Temgte Tamang would also have been received, by him. Urjin Lama also said that Pema Manang had told him that he would meet them in Delhi on 6-12-1988 in Tibbat Camp situate in Budh Vihar where he would have taken the delivery of the gold. THE said statement of Urjin Lama was supported by the statement of Tamring Chhong Sherpa and Samte Tamang. How ever, Samte Tamang had stated that he was not aware of the fact that gold had been concealed in his boots. Since Urjin Lama was taking him to Delhi and had given him the boots to wear, he was accompanying Urjin Laoua. THE Governmeat also considered that as the period of remand was going to expire, whereafter it was Iikely that these persons would be released from Jail where they were lodged after arrest in the custom case and being satisfied that the petitioners were persons who were engaged in transporting and concealing goods, with a view to prevent the petitioners to indulge in similar activities again, the deten tion orders were passed against them with the direction that they would be detained in Central Jail, Varanasi during the period of that detention.

(3.) TAKING the case of Urjin Lama, paragraph 17 of the petition stated that the petitioner did not know Hindi, the petitioner could speak Nepali only and vas illiterate and since the grounds furnished to him were in Hindi, his detention was illegal. On the basis of this assertation, learned counsel for the petitioner has urged that the petitioner was deprived of his right of making an effective, representation. In the counter-affidavit filed by Dr. R. S. Asthana, the assertion made in paragraph 17 of the writ petition has been met by stating that the official language of the State Government was Hindi and functioas of the Gov ernment were dischrarged in that language alone, it was also said that the order and grounds of detention were explained to the detenu when they were furnished to the petitioner as the petitioner had put his thumb-impressions the office copy of the grounds. It was contended that the petitioner was wrong in saying that tie was acquainted with Hindi language. As mentioned in the counter-affidavit, the record bearing thumb-impressions of the petitioner was produced with the office copy of the State Goverment's record, which also had the endorsement of the Jail authorities that the grounds had been read ever to the petitioner.