ANJANA RIKABCHAND MEHTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By these Petitions under Article 226 of the Constitution of India, the challenge is to the separate orders dated 22nd August 2013 passed in exercise of powers under Subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). Both the orders are the orders of preventive detention. The order, subject matter of challenge in Writ Petition No.3436 of 2013, is in respect of Shri Jayant Rikhabchand Mehta (for short "Jayant"). The Writ Petition has been filed by the mother of the detenu. The order dated 22nd August 2013, subject matter of challenge in Writ Petition No.3499 of 2013, is in relation to one Shri Sandeep Jayantilal Jain (for short "Sandeep"). The said Writ Petition has been filed, on behalf of Sandeep, by his wife.

(2.) It is alleged in the grounds of detention that a specific intelligence was received that one Sagar Chheda, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, would be carrying gold in his black coloured backpack bag and would exchange his bag containing the contraband in the toilet situated in corridor on the mezzanine floor of the said Airport with one Shri Uday Singh Meena, SubInspector of CISF. It is alleged that the said Uday Singh Meena was apprehended along with the black coloured backpack bag which contained 5.804 kgs of gold jewellery and gold bars having estimated value of Rs.1.60 crores. The said goods were seized under the provisions of the Customs Act, 1962 (for short "the said Act of 1962"). The said Sagar Chheda was also apprehended at the Airport on the same day i.e. 10th August 2012 and he was found carrying an identical black coloured DELL backpack bag. It is alleged that the detenu Jayant arrived by the same flight who had purchased the seized contraband in Dubai and who had handed over the same to Sagar Chheda for brining the same to Mumbai. The detenu Jayant was also apprehended on the same date. It is alleged that one more passenger Atul Mangilal Bafna arrived from Dubai in the morning of 11th August 2012. He was carrying a black coloured (DELL backpack bag) from which recovery of 4.714 kgs of gold jewellery was made which was seized under the provisions of the said Act of 1962. It is alleged that the residential premises of Sandeep was searched and even his office premises was searched, but nothing incriminating was found. Reliance has been placed on the statement of Shri Uday Singh Meena recorded under Section 108 of the said Act of 1962. Reliance is also placed on the various statements of both the Jayant and Sandeep recorded under Section 108 of the said Act of 1962. Reliance was also placed on the statements of Sagar Chheda recorded under Section 108 of the said Act of 1962. Further, reliance was placed on the statements of one Pravin Popatlal Jain, Atul Bafna and Mandip Jain recorded under Section 108 of the said Act of 1962. Apart from these statements, the Detaining Authority referred to and relied upon the statements of Chirag Ramesh Vora, Rajesh Bhogilal Vora and Bhavesh Walchand Parmar which were also recorded under Section 108 of the said Act of 1962. The allegation made against Sandeep Jain is that he was a kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai who had entered into a conspiracy with said Jayant , Sagar Chheda, Mandip Jain, Pravin Jain, Murarilal Meena and Uday Singh for smuggling the gold jewellery and gold bars from Dubai. It is alleged that Sandeep was the financier of the smuggling activities. It is alleged that from April 2011 till July 2011 four to five consignments were brought by Sandeep. It is alleged that Jayant was apprehended at the Airport in July 2011 by the DRI, but nothing incriminating was found with him as he had already exchanged the bag with Murarilal Meena. It is alleged that during the period of six months, since February 2012, Sandeep smuggled 120 to 140 kgs of gold bars and gold jewellery.

(3.) Learned counsel appearing for the Petitioners has made detailed submissions which are common in both the Petitions. She pointed that in both the cases, the Detaining Authority has relied upon the inculpatory statements of the detenu Sandeep recorded under Section 108 of the said Act of 1962. She pointed out that the statements were retracted at the first opportunity. However, retraction was not placed before the Detaining Authority. Her submission is that the retraction statement is a vital document. Her submission is that it was necessary to give a copy of the retraction statement to the detenu to enable him to make a representation against the order of detention.