HAIDER ALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India is directed against the order of detention dated 27.11.2003 issued by Neela Satyanarayana, Principal Secretary, (Appeals and Security) , government of Maharashtra (for short "the Detaining Authority") under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974 (for short, "the COFEPOSA Act") by which Abdulla gulam Mustafa, hereinafter referred to as "the detenu", has been detained with a view to prevent him in future from smuggling of goods. The petition is filed by the brother-in-law of the detenu.

(2.) The factual matrix that would be relevant and material for deciding the instant criminal writ petition is as follows: on 14.2.2003 at Sahara International Airport, Mumbai the detenu was frisked and in his hand baggage Indian currency of Rs. 47 lakhs and the foreign currency, equivalent to Indian Rs. 21,65,384.60 was found. In further investigation it transpired that the detenu was carrying the said currency on the instructions of one Sanjay Agarwal for handing it over to one Sai Kumar, who in turn was to take it out of India i. e. to Singapore. The detenu had an air ticket of Hyderabad and admittedly he was to travel by International flight. It appears that the currencies found with the detenu was not declared by him to the customs. On completion of the investigation in the case, the Joint Commissioner of customs, Air Intelligence Unit issued a show cause notice on 7.8.2003. It was placed before the Detaining Authority alongwith the other material relied upon for passing the impugned order. The order of detention was, accordingly, issued on 27.11.2003. Since the detenu was absconding and was arrested on 25.6.2004 it could not be executed till then.

(3.) The allegations as reflected in the grounds of detention, in short, are that the detenu was found in possession of the currency, as stated above, which he had not declared to the customs while undergoing the formalities for travelling by International flight from Bombay to Hyderabad. In his statement recorded under section 108 of the Customs Act, 1962 he, inter alia, admitted recovery of the currency. According to the detenu the currency was given to him by one Sanjay Agarwal, for whom he was working at the relevant time, for handing it over to Sai Kumar. The detenu was also found in possession of a photocopy of the passport of Asad Khan with his photograph super imposed on it. That according to the detenu was done by Sanjay Agarwal. He was also found in possession of mobile phone on which just before his arrest the calls from the mobile phone belonging to Sanjay Agarwal had been received. Even the air ticket on which the detenu was to travel was also issued in the name of Asad Khan. When the detenu was intercepted by the Air Intelligence unit he confirmed his name as Abdulla Shaikh Mehmood. In his further statement recorded under section 108 of the Customs Act, he has admitted that he was aware about the contents of the bag in which the currency was found and that bag was given at Hotel Bawa by Sanjay Agarwal in the presence of Sai Kumar, who was expected to meet him at the transit lounge of the International Airport for carrying it further to Singapore. He also admitted that air ticket which he was possessing was issued in the name of Asad Khan and he was told to disclose his name as Asad Khan on being enquired at the airport. He also admitted that a photocopy of the passport of Asad Khan showing detenu's photograph was given by Sanjay Agarwal and that he was told to handover the bag containing currency to Sai Kumar in transit lounge after Sai Kumar's clearance through immigration and customs. It appears that since Sai Kumar did not turn up and there was short time left for departure of the flight by which the detenu was to travel, he was instructed by sanjay Agarwal to handover the bag containing currency to one Mr. Deepak working in Maharaja Lounge in transit area. However, before he could do so he was asked to rush to the security hold, where bag of the detenu was X- rayed, resulting in recovery of the currency.