MUKESH KUMAR JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE detenu has challenged the order dated 6th July 1989 detaining him under sub-Section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from smuggling goods. The incident is dated, 3/11/1988 when the detenu was apprehended at Sahar, Airport while coming from Delhi to Bombay. He was found to have concealed 20 gold bars in his shoes. He was released on bail on 4th January 198,9. Thus the detention order was passed on 6/7/1989 when the detenu was actually on bail. Even though he was on bail, the grounds show that the detenu was in judicial custody. In view of this, Mr. Khan, the learned counsel appearing for the petitioner has invited our attention to the challenge which he has raised in Ground No. (ii) of the petition. Mr. Khan has argued that the impugned order is bad for non application of mine on the part of me authorities. He has submitted that though the detenu was actually on bail, but the authorities have passed the order of detention treating him as if he was in judicial custody. This, in our view, shows the casual and caviliar manner in which the impugned order is passed.

(2.) GROUND No. 4 (ii) has been replied on behalf of the Government of Maharashtra in para 7 of the affidavit filed by the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, Mantralaya, Bombay which reads thus:

(3.) MR. Khan has placed before us certified copy of the form of taking cash deposit in lieu of bond from accused person under Section 445 of the Code of Criminal Procedure. This clearly shows that the detenu was released on 4/1/1989 on his furnishing cash deposit in the sum of Rs. 80,000. 00. In view of this, it cannot be disputed that the averment in the impugned order and the grounds that the detenu was in judicial custody was obviously contrary to the record. In our view there is much substance in the contention of Mr. Khan that this indicate non-application of mind on the part of the authorities. Since we are satisfied on this count, it is not necessary to discuss other challenges which have been raised in the petition. The petition is accordingly allowed. The impugned order is quashed and set aside. The detenu be set at liberty forthwith unless he is required in other case. Petition allowed.