MUKESH SUNDERLAL SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Detenu Sunderlal Shah is detained under the order of detention dated 6th of July 1981 passed under COFEPOSA Act. This order of detention is challenged before us on various grounds. One of the grounds raised in the petition is that the order is vitiated because of non-application of mind. It is contended by Shri Paranjape, learned counsel for the petitioner that though a reference is made to the statements of as many as 10 persons in para 10 of the grounds of detention, only three of them have named the detenu. He also contended that though Prafulla Doshi's name is referred to in para 10 of the grounds, the statement of Prafulla Doshi was never recorded. Hence it is contended by Shri Paranjape that these wrong recitals of fact in para 10 clearly indicate non-application of mind on the part of the detaining authority. In our opinion there is much substance in this contention. The relevant portion of para 10 of the grounds of detention reads as under :-

(2.) From the bare reading of these recitals it is quite obvious that the detaining authority has placed reliance upon the statements of the persons referred to therein, which according to it involves the detenu. Admittedly no statement of Shri Praful Doshi was ever recorded. Therefore, to the extent there is an obvious wrong statement of material fact in the grounds of detention. The persons involved in the racket are Praful Doshi and Shobhana Doshi. Hence the conduct of these two persons and the statements made by them were material for deciding the question as to whether the detenu should be detained under the COFEPOSA Act with a view to prevent him from abetting the offence of smuggling goods. Only three persons viz. Shobhana Doshi, Jonny Mascarehens and Christo Roberts directly refer to his name, whereas Victor Joel and John Lucas made reference to Jhaveri Bazar as the place from where silver was purchased. It is the case of the respondents that the shop of the detenu is in Jhaveri Bazar, which is clear from the statements of other witnesses viz. Shobhana, Johy Mascarehens and Christo Roberts and, therefore, the detaining authority has used the expression "statements referred to above". According to Shri Kotwal, learned public prosecutor this expression also means the statements referred to in the grounds of detention Nos. 1 to 9. However, Shri Kotwal also found some difficulty in explaining the subsequent expression appearing in ground No. 10 viz."From the statements of all the other witnesses examined by the Customs Authorities". In all 27 witnesses were examined by the Customs Authority and many of them do not refer to then name of the detenu either directly or indirectly. In any case there is an obvious mistake of fact in this ground, when a reference is made to the statement of Praful Doshi. This mistake could not be termed as minor because Praful Doshi is the main person involved in the racket and admittedly his statement was never recorded because he was not available at all. Therefore, if a cumulative view of the statements of facts, made in ground No. 10 is taken, then it is quite obvious to us that these recitals of incorrect fact cast a serious doubt upon the state of mind of the authority concerned. In this context a reference could usefully be made to a Division Bench decision of this Court in Jivraj Joharmal v. State, AIR 1956 Bom 719 : (1956 Cri LJ 1311) and particularly to the following observations thereof :-

(3.) Hence the order of detention is declared illegal. However, we are informed that the detenu was also arrested in a criminal case and was released on bail. After his detention under COFEPOSA Act, the bail was cancelled and, therefore, the detenu is in custody as a result of the order passed by a competent criminal Court in the proceedings pending against him. Therefore, we declare that the continued detention of the detenu under the COFEPOSA Act is illegal and he is at liberty to approach the competent Court of law, for his release, as he is also required to be detained in a Criminal Case pending against him. Rule absolute to the extent.