ZOHRABI Vs. ADD SECRETARY

JUDGEMENT

(1.) By a detention order passed on February 16, 1983, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - hereinafter referred to as the COFEPOSA, the detenu Shri Shaikh Hussain is detained by the 1st respondent, the detaining Authority, with a view to preventing him from smuggling goods. The detention order was served on the detenu on February 25, 1983. The grounds of detention were formulated simultaneously with the order of detention and they were also served upon the detenu. The grounds of detention are annexed to this petition as Annexure TCT. By this petition under Article 226 of the Constitution of India, Smt. Zhorabi Shaikh Hussein, wife of the detenu Shaikh Hussein, seeks to challenge the legality and correctness of the detention order.

(2.) A brief reference to the grounds of detention would be necessary to order to appreciate the rival contentions raised by the learned counsels appearing for the parties before us: It is common ground that the detenu on the date of the incident i.e. 12th of October 1982, was working as Air Customs Officer at International Sahar Airport, Bombay. He was in charge of arrival and departure launch. The grounds of detention recite as follows: On information that the detenu Mohamed Hussein Shaikh, Air Customs Officer, was showing interest in the clearance of one package (carton) lying at Air Cargo Complex, Officers of Customs Central Intelligence Unit, maintained a discreet watch. On October 15, 1982, at about 4.00 p.m. the carton in question was found repacked and strapped in the unaccompanied baggage hall. One Shiraj Japanwala, who was suspected to be the agent handling the said carton, was questioned about the same who replied that at the request of the detenu (Air Customs Officer) he was merely assisting the passenger for clearance of the said carton. Shiraj Japanwala was however unable to produce the passenger before the Customs Officer nor the passenger could be traced. This gave suspicion to the Customs Officers and, therefore, they put a customs seal on the said carton. A statement of Shiraj Japanwala was recorded who stated that he assisted the passenger on the instructions of the detenu. The contents of the carton were given as food stuff, was examined on October 16, 1982 in the presence of two independent panchas and also in the presence of Siraj Japanwala which resulted into recovery of 1462 wrist watches valued at Rs. 1,19,100/- CIF and Rs. 2,38,200/- M.V. from six plastic bags concealed beneath children's wearing apparel. These articles were seized under the belief that they were liable to be confiscated under the Customs Act, 1962. During the investigation it was revealed that the said carton was booked as unaccompanied baggage of one Mohamed Anwar Shaikh Mohamed Tungekar from Dubai. One Newrangee Abdul Matten Mohamed Yusuf approached the detenu for assistance in clearing the said carton and both of them had been to the Air Cargo Complex on October 13, 1982 and the detenu introduced the said Matten to Shirai Japanwala, clerk working with a Customs Clearing Agent and also met R.K. Thakur, Preventive Officer, Customs. The detenu then requested R.K. Thakur to give reasonable assistance in clearing the said carton and on October 15, 1982, Shiraj Japanwala along with the passenger Mohamed Anwar Shaikh Mohamed Tungekar opened the said carton with the help of some persons for its examination by R.K. Thakur, the Preventive Officer. Since R.K. Thakur was required to attend to some other urgent work he could not complete the examination and, therefore, he repacked the said carton. In the meantime Customs Intelligence Officer arrived at the scene and got the said carton sealed with customs seal where from contraband wrist watches were later recovered and seized on October 16, 1982. The residence of the detenu was searched wherefrom some documents including one Indian Passport of Nawrangee Abdul Mateen were seized. Enquiries further revealed that the address of Mohamed Anwar Shaikh Mohamed Tungekar mentioned on the consignment note and in the baggage declaration from as 138, Turner Road, Bandra, Bombay - 400050 was fictitious. Residential premises of Mateen, Shiraj Japanwala and of Tungekar were searched on October 20, 1982, but nothing incriminating was found in the premises of Mateen and Shiraj, however, one diary was seized from the premises of Mohammed Anwar. The statements of Tungekar, Rehman, Shiraj Japanwala, Raisinghani, Thakur and detenu himself were recorded on various dates. It is not necessary in this petition to give all the details about the statements of all these persons suffice it to say that when the Customs Officer opened the carton they found the contraband articles in the said carton and these articles were sought to be smuggled into India from Dubai, which is an offence under the Customs Act.

(3.) The sponsoring Authority has moved the proposal sometime on November 30, 1982 and the same was received by Mantralaya on December 1, 1982. On December 30, 1982 the proposal was allotted to Shri C. D. Singh, the Additional Secretary in the Mantralaya and Shri C. D. Singh on January 31, 1983 ordered to issue detention order. Copies of the necessary documents were sent for by the detaining Authority on February 2.19.83 and the same were received from the sponsoring Authority on February 8, 1983. The impugned order of detention has been authenticated ort February 16, 1983.