FAZAL MAHMOOD AGEWAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this writ petition preferred under Article 226 of the Constitution of India, the petitioner who styles himself as the friend of the detenu one Noor Mohammed Siddique Lakhani @ Bababhai has impugned the order dated 30-5-2001 passed by the second respondent Joyce Sankaran, Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) Mantralaya, Mumbai-400 032 detaining the detenu under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) (hereinafter referred to as the COFEPOSA Act ). The detention order along with the grounds of detention, which are also dated 30-5-2001, was served on the detenu on 23-11-2001 and their true copies are annexed as Annexures A and B respectively to this petition.

(2.) THE prejudicial activities of the detenu impelling the second respondent to pass the impugned order are contained in the grounds of detention Annexure B. In short, a perusal of Annexure B would show that on the basis of the specific information recorded, co-detenues Mohanlal Mishraji Purohit, and Sadanand Sambhaji Rasam were intercepted and searched on 29-7-2000 along with two vehicles bearing No. MH-01-B-4869 and DL-96-B-3644 outside the exit of the parking lot of Module- I of Chhatrapati Shivaji Terminus and the search resulted in recovery of 830 Digital Video Discs of various English movies, valued at Rs. 83,000/- and 7105 assorted wrist watches, valued at Rs. 9,50,575/ -. Both the vehicles and the said articles were seized under a panchanama. Thereafter, statements of the aforesaid co-detenues were recorded under section 108 of the Customs Act, 1962. The co-detenu Mohanlal Mishraji Purohit stated that he was working as telephone operator in the firm of M/s. Rian Communication the owner of which was one Noor Mohammed Lakhani @ Bababhai (detenu) and he received Rs. 10,000/- as salary and Noor Mohammed Siddique Lakhani @ Bababhai had asked him to go to Dubai/hongkong on a number of occasions in relation to getting articles smuggled into India and all the expenses had been borne by Noor Mohammed Siddique Lakhani. He also stated therein that at the instance of the detenu, he and Sadanand Rasam had visited the airport to receive the consignment smuggled into India by two carriers namely Sanjay Chhabria and Rahul, both N. R. Is. and the above mentioned goods were recovered from him. A perusal of para 3 of the grounds of detention would show that the detenus statement under section 108 of the Customs Act was recorded on 3-8-2000 and he admitted therein that he was running six stores on rent at Musafirkhana, Mumbai; they being: (1) Rian Communication STD Booth, (2) Sheetal Times (3) Benzer Stores (4) Lighter Shop (5) A to Z Shop and (6) Kavita Stores. Its perusal would also show that the said stores were run by various working partners of the detenu and he was not concerned with the day to day activities. It would further show that co-detenu Mohanlal is a working partner of Sheetal Stores and was looking after its day to day affairs and the detenu denied that Mohanlal was working as a telephone operator with him. It would further show that he also denied that a maruti esteem Bearing No. MH-01-B-4969 was owned by him and was given by him to Mohanlal for personal use and that he knew that Harbansingh through Mohanlal used to supply the watches. A perusal of para 7 of the grounds of detention would show that the Detaining Authority was satisfied that in order to prevent the detenu from indulging in smuggling activities, it was imperative to detain him under the COFEPOSA Act.

(3.) WE have heard learned Counsel for the parties. This is a single point petition. The point has been pleaded as ground No. 3 (a ). In short, the said ground is that since the sponsoring authority placed before the Detaining Authority the show cause notice dated 10-1-2001, it was also imperative for it to have placed before the Detaining Authority the replies of the detenu and the co-accused dated 12-2-2001, (a copy of which is annexed as Annexure D to the petition) and 27-3-2001 (a copy of which is annexed as Annexure E to the petition) to the said show cause notice because, they were documents of a vital nature which were liable to influence the subjective satisfaction of the Detaining Authority one way or the other. The pleading is that the aforesaid default would vitiate the detention of the detenue on a dual count namely:-