HAJRA IKRAM CHAND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this petition filed under Article 226 of the Constitution of India, the petitioner who is the wife of one Ikram Nisar Chand (for convenience, "the detenu"), has challenged the order of detention dated 6/1/2005 issued by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai - 400 032, in exercise of powers conferred on him by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "the COFEPOSA") with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.

(2.) THE order of detention, grounds of detention and material in support thereof were served on the detenu on 6/1/2005.

(3.) WE have heard, at considerable length, Mr. Gupte, the learned counsel appearing for the petitioner. Mr. Gupte contended that the order of detention indicates total non application of mind on the part of the detaining authority. He submitted that the activities mentioned in the order of detention fall under section 3(1)(iii) and section 3(1)(iv) of the COFEPOSA Act. He submitted that the said two heads of detention cannot be invoked, at a time, against the same person, because a person cannot indulge in transporting or concealing or keeping smuggled goods and at the same time indulge in dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The learned counsel urged that, in any event, if it is assumed that the detenu has brought the mobile phones and the wrist watches from abroad, that activity would only fall under section 3(1)(i) of the COFEPOSA Act i.e. smuggling of goods. The detaining authority, therefore, erred in issuing the order of detention under section 3(1)(iii) and section 3(1)(iv) of the COFEPOSA Act and on that ground, the order of detention must be set aside.