LORETTA FERNANDES Vs. L HMINGLIANA SECY PREV DETENTION

JUDGEMENT

(1.) THIS is a petition for a writ of habeas corpus filed by the petitioner under Article 226 of the constitution of India. The petitioner claims to be the sister of one Orlando Fernandes, who came to be detained pursuant to the order dated April 17, 1990, issued by the 1st Respondent in exercise of the powers conferred on him under Section 3 (1) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act' ). The petitioner in this petition seeks to challenge the legality and correctness of the order of detention dated 17th April 1990.

(2.) MR. Merchant, learned Advocate appearing in support of this petition raised formidable grounds to invalidate the impugned order or detention. In view of his submissions and in our opinion, it is not necessary to reproduce the grounds of detention formulated by the Detaining authority while issuing the impugned order of detention. Suffice it to say that the detenu at the relevant time was an employee of Trans Mediterrianian Airlines as Traffic Assistant. His duties were at the Sahara Airport, Bombay. The detenu along with other members of the Trans mediterrianian Airlines, viz. Gul Rajsinghani, Ramesh Pai and Nazir E. Mukadam were also involved in the incident in question which took place on 19th February, 1990. On 19th February 1990, the Customs Officers attached to Air Intelligence Unit intercepted on suspicion, Jeep; bearing Registration No. BLD 2905 of the Trans Mediterrianian Airlines at Exit Gate No. 5. The detenu was driving the jeep. The jeep was stopped and upon questioning by the Customs officers, the detenu and co-occupant denied to have concealed any contraband gold or having any knowledge of the concealment. The jeep was then taken to the Cargo Warehouse of R. M. A. for the purpose of taking search. Gul Rajsinghani, the other co-accused escaped from the scene under the pretext of attending nature's call. Two panchas were called and in their presence search of the jeep was taken. The officers opened the glow compartment of the jeep with the bunch of keys produced by the detenu, but nothing incriminating was found therein. On opening the tool box underneath the driver's seat with the keys, which the detenu was having, the Customs officers found one blue coloured cloth belt stitched. The Customs Officers removed the cloth belt which was found to be unusually heavy. On further investigation, the said belt resulted into recovery of 580 gold bars having different foreign markings collectively weighed 67,628 gms. and were valued at Rs. 1,29,84,576/- LMV and Rs. 2,46,84,220/- LMV. They were seized by the customs officers under the bona fide belief that the same are liable for confiscation under the customs Act. The statement of the detenu and various co-accused were recorded by the Customs officers. The Sponsoring Authority placed before the Detaining Authority the documents as per annexure 'c' (list of documents) for its consideration. The Detaining Authority on being subjectively satisfied that the detenu has been involved in the prejudicial activities under the Act the with a view to preventing him from indulging in such prejudicial activities in future, it is necessary to issue the order of detention under Section 3 (1) of the Act. The Detaining Authority, accordingly, issued order of detention against the detenu. It is this order which is the subject matter of challenge in this writ petition.

(3.) ALTHOUGH several contentions are taken up in this writ petition, but, however, Mr. Merchant appearing for the petitioner put forth contention raised in paragraph 5 (d) of the petition. According to the learned Counsel, this contention invalidates the impugned order of detention and, therefore, it is not necessary to go into any other contention. Contention raised in 5 (d) is that on 26th February, 1990, the detenu had submitted an application to the Court of Additional chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, retracting his confessional statement recorded on the earlier occasion alleging that the confessional statement recorded by the Customs Officers under Section 108 of the Customs Act, 1962 was obtained by force in ill treatment. The said retraction was sent by the detenu through the Superintendent of the Bombay central Prison, Bombay, to the Court and the same was received by the Court and taken on record on or about 28-12-1990. A copy of the said retraction statement is annexed to this petition as annexure 'k'. This retraction statement was a vital document and it was enjoined upon the sponsoring Authority to have placed before the Detaining Authority the said retraction statement, and it was equally enjoined upon the Detaining Authority not only to have considered the statement but also to have furnished copy of the same to the detenu along with the grounds of detention. Since the vital document i. e. the retraction was not placed before the Detaining authority, his subjective satisfaction must stand vitiated. The further contention raised in this ground of attack is that since copy of the retraction was not furnished to the detenu, his right to make effective representation to the various authority was violated and consequently detention order must be struck down on the ground of non-compliance of Article 22 (5) of the Constitution of India.