NAFIS AHMED ANSARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition is directed against the order of detention dated 30th April, 2002 issued by Satish Tripathi, the Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention), mantralaya, Mumbai 32 under section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter for the sake of brevity, in short referred to as "c. O. F. E. P. O. S. A. " ). The petitioner is brother-in-law of detenu-Mehboob Ahmedali Darshi,

(2.) THE order of detention was passed on 30th April, 2002. However, it was served on the detenue on 4th September, 2002. Even though several grounds have been incorporated in the petition, at the time of final hearing, learned counsel for the petitioner relied upon only one ground for quashing the detention order. Learned Counsel submitted that the detention order was served on the petitioner detenu when he was in judicial custody of Additional Chief metropolitan Magistrate, Esplanade, Mumbai, in Case No. 11/ra/2002. Therefore, it was obligatory on the part of the Detaining Authority to show awareness of such judicial custody and therefore, it was necessary to explain the compelling necessity for passing the detention order. Reliance was placed on the decision reported in A. I. R. 1986 S. C. 2090 in the matter of (Bind singh v. District Magistrate, Dhanbad, Bihar)1, and decision reported in 1999 (5)Bom. C. R. 61 : 1998 Cri. L. J. 4310 in the matter of (Satish Ratilal Rawal v. Union of India and others}2.

(3.) THE Directorate of Revenue Intelligence (D. R. I.) Mumbai Zonal Unit had information that the detenu was travelling by business class by Emirate Flight no. EK 503 to Dubai from Mumbai, scheduled on 19. 00 hours on 4-1-2002 and that the detenue would be carrying assorted foreign currency concealed in abdomen and rectum for delivery' of the same at Dubai. Accordingly, the sleuths of the D. R. I. intercepted the detenu, while on his completing the check in, immigration and customs formalities, when the detenu was proceeding towards security checks to board on flight and enquired with him whether he was carrying foreign currency. Ultimately the detenu had accepted and dis-closed that he was carrying the foreign currency. The next day the detenu ejected the capsules from his abdomen and rectum which contained foreign currency equivalent to 25,10,431/- in Indian currency. Accordingly the panchanamas were drawn. On 5-1-2002 and 17-1-2002 the statements of the detenu were recorded under section 108 of the Customs Act, 1962. Thereafter the detenu was produced before the Chief Metropolitan Magistrate by D. R. I, in Case bearing No. RA/11/2002 on 6-1 -2002. The petitioner sought for bail, which was granted by the Court and which was availed by the detenu. The detenu retracted from his statements recorded on 5-1-2002 and 17-1-2002. Thereafter the order was passed on 30-4-2002 and the said order received by the Executing Authority, namely, P. C. B. , C. I. D. for execution on the same day. The detenu was not found on the address mentioned in the said order. In spite of the several attempts made by the Executing authority the detenu was not found on the given address. Therefore, on 10-6-2002 notification under section 7 (l) (b) of the CO. F. E. P. O. S. A. Act was issued by the State Govern-ment. Equally, the declaration under section 7 (l) (a) was issued by the Chief metropolitan Magistrate. By these two documents, namely, the notification and declaration, the petitioner-detenu was directed to remain present before the Commissioner of Police within a stipulated period. The said declaration was pasted on the door of the detenue on 1-9-2002. On 3-9-2002 the detenu preferred an application before the Additional Chief Metropolitan Magistrate, esplanade, Mumbai and surrendered before the Magistrate in Case No. 11/ ra of 2002. In this application the detenue submitted before the Metropolitan magistrate that he was released on bail of Rs. 2,50,000/- and that subsequently the detention order has been passed against him by the Government and the declaration and the proclamation was pasted on his door to that effect. Therefore, the detenu prayed that he should be taken in custody'. The additional Chief Metropolitan Magistrate on 3-9-2002 passed the order that the accused be taken in judicial custody and thus the detenu came in the judicial custody in Case No. 11/ra of 2002. It is pertinent to note that there after the Advocate for the detenu by his letter dated 3-9-2002 addressed to the Inspector of Police, P. C. B. , C. I. D. , informed that the petitioner-detenu has surrendered before the Court in the above-referred case and that he is in judicial custody and that the authority was requested to serve the detention order on the detenu in jail. Thereafter, on 4-9-2002, the application was submitted to the Chief Metropolitan Magistrate seeking permission to serve the order of detention on the detenu in jail. After taking permission, the P. C. B. , c. I. D. , informed the Sponsoring Authority and the Sponsoring Authority deputed one Vinod Pisharody, intelligence officer attached to D. R. I. , Mumbai to identify the detenu so as to serve the order. On 4-9-2002 accordingly said vinod Pisharody Officer of the D. R. I, identified the detenu and then the Police sub-Inspector, P. C. B. , C. I. D. served the detention order on detenu. Thus, while the detenu was in judicial custody the detention order and the grounds of detention were served on the petitioner-detenu.