SHABBIRBHAI BOOKWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition seeking a writ of habeas corpus under Article 226 of the Constitution is directed against the order of detention passed on 11/2/2011 by the Secretary (Appeals and Security), Government of Maharashtra, Home Department and in his capacity as the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act for short). The said order came to be executed on 17/2/2011 and while confirming it, as per the order dated 16/5/2011 under Section 8(f) of the Act, the period of detention has been said to be one year.

(2.) As per the reasoned order passed on the very same day i.e. 11/2/2011, on 24/3/2010, the officers of the Air Intelligence Unit (AIU), on the basis of the intelligence received, had intercepted the detenu in transit lounge on his arrival from Hongkong by Jet Airways Flight No.9W 0075 while he was found surreptitiously exchanging his hand bag and baggage with another passenger by name Shri Mohd. Shaikh Parvez Ali who was travelling to Delhi as a domestic passenger by Air India Flight No.AI 143 on the very same day. Both of them were brought to the office of the AIU with the baggages and in the presence of two independent panchas, baggages were examined. The hand bag passed on to Shri Mohd. Shaikh Parvez Ali was found to have 88,878 pieces of assorted Memory cards of foreign origin totally valued at Rs.2,23,28,250/- (CIF) and Rs.3,34,92,375/- (LMV). 129 pieces of sticker sheets each having 160 stickers with a description Micro SD 2GB were also recovered from the said bag. The recovered articles were seized and the bag passed to the detenu did not contain anything except the personal effects. However, the personal search of the detenu resulted in the recovery of Indian currency of Rs.32,500/-.

(3.) On the same day, the statement of Shri Mohd. Shaikh Parvez Ali (resident of Mira Road (E), Dist. Thane) was recorded and he stated that he was to catch the Air India Flight scheduled for Delhi and had exchanged his bag with that of the detenu containing assorted Memory cards as per the pre-plan in the cliffer lounge prior to his boarding the Delhi Flight AI 143. Shri Ali had met the detenu in Dubai while on his visit in the month of May 2009 and he had worked in a trading company dealing with mobile accessories. He had agreed to become a carrier for one Shri Khan and agreed to collect the bag containing the memory cards from the detenu at the Sahar Airport and to carry it upto Delhi by domestic flight and at Delhi one person would come and collect the bag on behalf of Shri Khan, as per the scheduled day and time, i.e. 24/3/2010. Shri Khan had booked the air ticket for Shri Ali with M/s. Altas Travels in Mumbai and he further admitted to have undertaken the job for a consideration of Rs. 10,000/-. Shri Ali identified the detenu as the person with whom he had exchanged his hand bag and also admitted the possession, carriage, concealment, non-declaration, recovery and seizure of the Memory cards of foreign origin in commercial quantity. His statement was further recorded on 12/5/2010, 22/6/2010. The detenu's statement was recorded on 24/3/2010 under Section 108 of the Customs Act, 1962. It was disclosed in the said statement that on 21/3/2010 he was told to come to Hongkong via Mumbai and received Memory chips from Shri Mohammed, Pakistani national in M/s. AMW Ltd. and hand over the same to one person after calling Shaikh Abdullah Zayed. The detenu was given 400 US $ in cash for expenditure and thereafter he boarded Jet Airways Flight No.9W 076 on 23/3/2010 for Hongkong. On reaching Hongkong, he contacted Mr. Vincent who gave him 26000 pieces of 2GB Memory Cards. On the next day, the detenu went to Mr. Mohammed in his office at AMW Ltd. and collected around 29000 pieces of 2GB Memory Cards. The detenu had packed all these Memory Cards in different packages and without any monetary transactions and boarded the Jet Airways Flight No.9W 075 at Hongkong Airport and arrived at Mumbai Airport on 23/3/2010. On arrival at Mumbai, he received a telephone call from one person named Shaikh Abdullah and as per his advice the hand bag was to be exchanged to Shri Parvez Ali, who was known to the detenu for the last two months. He further admitted that he had undertaken the said job for a monetary consideration of Rs.20,000/- at the instructions of his employer Shri Shaikh Abdullah Zayed and the payment was made directly by telex transfer of money. The detenu was a frequent traveller between Hongkong and Mumbai and had made 20 trips during the last one and half year. The detenu was taken in custody on 25/3/2010 but came to be released on bail on 23/4/2010. The order further stated that considering the nature and gravity of the offence and the well organized manner in which the detenu had engaged in such prejudicial activities, it was imperative that he should be detained under the Act with a view to prevent him from indulging in smuggling activities in future. The copies of the document relied upon and referred to while passing the detention order were also made available to the detenu as stated in the order.