SIVASANKARA PILLAI PANKJAKSHAN NAIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner in this case was served with an order of detention dated 20-8-1990 passed under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In the grounds of detention, it was alleged that the petitioner had returned to India by an Air India flight on 4-3-1990 and that he was carrying with him, among other things, a mini-refrigerator. The Customs Officers minutely examined the refrigerator and found one gold plate and two circular pieces of gold weighing 1,000 gms. concealed in the refrigerator. It was further pointed out that in the detenus statement dated 4-3-1990, he had indicated that he was working as a tailor at Rais-Al-Khaimah and that on his return to India one Abbas has asked him to carry the refrigerator for a consideration of Rs. 5,000/ -. It appears that in his statement, the detenu had admitted that he was aware of the concealment of gold in the refrigerator and that he was to hand over the same to a contact man by name Saleem outside the Airport.

(2.) MR. Maqsood Khan, the learned Advocate appearing on behalf of the petitioner, has urged several grounds before us, but he has essentially concentrated on ground (b) at page 6 of the petition. The detenu was produced before the learned Metropolitan Magistrate on 5-3-1990 and the trial Court passed an order granting the application of the Customs Department for retention of the Passport of the detenu. Though it appears from the record that the application of the Customs Department for retention of the detenus Passport was placed before the detaining authority, Mr. Maqsood Khan has submitted that the order passed by the learned Metropolitan Magistrate granting the application whereby the detenus Passport was taken charge of and retained by the Customs Department was not placed before the detaining authority. Mr. Maqsood Khan has submitted that this factor is neither irrelevant nor inconsequential, but that it is both vital and material to the aspect of consideration on the part of the detaining authority and that this factor would have necessarily influenced the authority in that regard.

(3.) IN the affidavit-in-reply that has been filed by the detaining authority, though he has admitted that the order in question was not placed before him, he has stated that he was aware of the application having been made for retention of the detenus Passport, and furthermore, that certain pages from the Passport were produced before him and that consequently from this material, it must be inferred that he was in the knowledge of the retention of the detenus passport. The detaining authority has further stated, in his affidavit-in-reply, that there was a possibility of the petitioner continuing with the type of prejudicial activities. In other words, the detaining authority was of the view that the detenu would continue his smuggling activities and that, regardless of the retention of the Passport, he could do so on the basis of a fake Passport.