KEKALWA SAMUELE KONGWA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a Zambian National who is at present in custody at Yervada Central Prison pursuant to an order of detention passed against him by the Government of Maharashtra on 29th of June, 1984. That order of detention has been passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the "COFEPOSA Act". The material which has come on record in this case shows that the petitioner is an official of Zambian Airlines and was at the relevant time posted in Bombay. The order of detention passed on 29th of June, 1984 was based upon the grounds of detention which were formulated on the same day. The Advisory Board has confirmed the detention of the petitioner. Hence this habeas corpus petition under Article 226 of the Constitution.

(2.) The order of detention has been challenged on several grounds. It is necessary to briefly summarise the grounds as disclosed to the petitioner is order to understand the challenge made by the petitioner. In the early hours of 13th of June, 1984, the petitioner checked in two suitcases meant for Zambian Airways Flight No. 781. After checking in the two suitcases, he followed the same through the immigration into the Departure Customs Hall where he was stopped by the Customs Officers. On being asked as to whom the suitcases belonged, the petitioner disclosed that they did not belong to him but they belonged to a passenger called Alfred Juma Ndemanga, hereinafter called "Alfred" for the sake of convenience, who has checked in for the same flight namely Flight No. 781. The petitioner was further asked as to whether he knew the contents of those suit cases. The answer of the petitioner was that as per his knowledge, they contained narcotics.

(3.) The grounds of detention further disclose that thereafter the petitioner was taken to what has been described as the Security Hold where two passengers, Mr. Kikota Wina and princess Wine, were sitting along with the aforesaid Alfred. From the material which has been reproduced in the grounds of detention it is easily seen that the said Alfred was an attendant of the couple Wines and he was travelling with them by the same flight from Bombay to Lusake. Both Mr. and Mrs. Wina disclaimed the ownership of the suitcases. So also Alfred. Alfred, however, mentioned that he had given his ticket to the petitioner for clarification of the class by which he was travelling. Asked about the baggage claim tags which were found on his ticket, Alfred said that when he gave the ticket to the petitioner the baggage tags were not on the ticket. As is customary in such cases, statements of all the persons who, according to the Customs authorities, were involved were recorded. The statement of the petitioner has been summarised in the grounds of detention. He has stated that on the day in question he was staying at Room No. 346 at Holiday in and at about 10 Oclock the suitcases were brought to him by Alfred. Mr. and Mrs. Wina were advised by the petitioner to go directly to the airport. The petitioner thereafter left the hotel for the airport with the suitcases and being an official of the Zambian Airlines he checked in the two suitcases on Alfreds ticket. He has further mentioned in his statement, as summarised in the grounds of detention that he checked in the two suitcases on the ticket of Alfred at the instance of Mrs. Wina though, as we have already noted above, Mr. and Mrs. Wina both have disclaimed any knowledge of or connection with the two suitcases.