RAJESH VASHUDEV ADNANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Perused the records. The petitioner challenges the order of detention dated 3-11-2004 issued by the respondent No. 2 against Vashdev Gobindram Adnani, the father of the petitioner herein, under section 3 (1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974, hereinafter called as "the cofeposa".

(2.) The facts relevant to be noted are that on 20-8-2004, on the basis of the intelligence report, the detenu on being intercepted by the officers of the DRI after he had passed through the customs area to board the flight to Singapore, foreign currency of USD 81000. 00, Euro 7600. 00 was seized from the detenu along with 366. 00 Singapore Dollars, totally equivalent to Indian currency of Rs. 40,08,244.50 ps. The same was seized under panchnama under the provisions of the CUSTOMS ACT, 1962 and in the statement recorded under section 108 of the Customs Act, the detenu claimed that the seized currency was brought by him from Singapore after necessary declaration and the same was being carried back to Singapore. The impugned order of detention came to be passed on 3-11-2004 and it was actually executed by arrest and detention of the detenu on 2-12-2004.

(3.) It is the case of the petitioner that the impugned order of detention has been based on two heads of detention as available under section 3 (1) (i) and (iii) of the COFEPOSA. While Clause (i) relates to preventing the detenu from smuggling goods in future, the Clause (iii) relates to preventing the detenu from engaging in transporting or concealing or keeping smuggled goods in future. It is the case of the petitioner that the records before the Detaining authority nowhere disclosed any material which could reveal that the detenu was engaged in transporting or concealing or keeping smuggled goods and therefore there was no occasion for the Detaining Authority to get herself subjectively satisfied about the need for issuance of the detention order in terms of section 3 (l) (iii) of COFEPOSA. Since the impugned order is a composite order passed under section 3 (1) (i) and (iii) and as the materials on record did not disclose any justification for being subjectively satisfied about the need for issuance of the order in terms of section 3 (l) (iii) , the entire order discloses non -application of mind by the Detaining Authority and therefore the entire order is liable to be quashed as bad in law. On the other hand, it is the case of the respondents that the statement of Navin Tanna reveal that the detenu had contacted him and had acquired the smuggled currency and the same currency was kept by the detenu with his servant and further carried with him while trying to go abroad and therefore the same discloses the activities of the detenu which reveal that he was engaged in the activity of transporting and concealing and keeping foreign currency which in turn discloses smuggling within the meaning of the said expression under the cofeposa and therefore no fault can be found with the impugned order of detention, besides, merely because the order is bad on one head, it would not render the order on another head to be bad in law.