AMIRALI SADAK THAMBY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution seeks to invoke also the jurisdiction of this Court under section 482 of the Code of Criminal Procedure for challenging an order passed by the Government of Maharashtra detaining the detenu under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, here in after referred to as "the COFEPOSA Act." Article 227 is inapplicable, section 482 of the Code of Criminal Procedure which mentions the inherent powers of the Court cannot also be invoked for the purpose of the challenging a detention order. We must, therefore, proceed to hear this petition as one under section 226 of the Constitution.

(2.) The facts as disclosed in the petition as well as in the return filed by the respondents in reply to the rule issued by this Court disclosed that on 19th March, 1982 the detenus flat situated on the third floor of a building known as Mistry Park, Warden Road, Bombay - 400 026, was raided by the Customs Officers and a sum of Rs. 50,000 and U.S. currency of 425 was seized. The detenu was a tenant of the said flat bearing No. 36. From the said flat the detenu was taken to another building which is not near the flat of which the detenu is the occupant or the tenant. That building is called Papad Chawl and Room No. 15 of the said chawl was opened with the key provided by the detenu. In that room there was a cupboard. The key of the cupboard was also provided by the detenu. After the officers opened the cupboard they found in it a pillow in which certain packets were concealed. When opened, those packets were found to contain certain shining objects. They were seized by the Customs Officers. When these objects were sent to the Customs appraiser, he gave the opinion that they were diamonds weighing 1121. 58 carats valued at Rs. 30,43, 840. This opinion of the Customs appraiser was given on 22nd March, 1982. On 18th September, 1982 the order of detention was passed and on the same day the ground of detention were provided.

(3.) It may be stated at this stage that the material which has been relied upon by the Detaining Authority himself discloses that one Sayed Hamid Jubair was present at the time the raid of Room 15 in the Papad Chawl was carried out. The statement of the said Sayed Hamid Jubair was recorded on 19th March, 1982 on which date the statement of the detenu was also recorded. On four more subsequent dates against the statements of the detenu were recorded. The car bearing No. MRG - 372 registered in the name of Sayed Hamid Jubair was also seized. Subsequently on 23rd March, 1982 the detenu was arrested and released on bail. On 10th September, 1982 a notice was issued to the detenu to show cause why the goods which where taken possession of from Room No. 15 of the Papad Chawl should not be forfeited to the Government and why penalty should not be imposed upon him. It need to be mentioned that the order of detention and the grounds of detention were prepared on 16th September, 1982 but were served upon the detenu on 18th September, 1982.