JAYA ARUN BHOSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BE means of this petition under Article 226 of the Constitution of India, the petitioner who is the wife of the detenu Arjun Pandharinath Bhosale, has challenged the detention of the detenu under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1980 vide Detention Order bearing No. SPL. 3 (A) PSA 0194/61 dated 15th June 1994, issued by Mr. R. D. Tyagi, (Respondent No. 2) Principle Secretary to the Government of Maharashtra, Home Department, Mantralaya, Bombay. A copy of the detention order has been annexed as Annexure No. A to the petition.

(2.) THE prejudicial activities of the detenu necessitating the passing of the impugned order of detention are contained in the grounds of detention dated 15th June 1994 and a copy of the aforesaid grounds is annexed as Annexure B to the petition. Both the order of detention as well as the grounds of detention were served upon the detenu on 17th June 1994. In the grounds of detention, it is alleged that on 22-3-1994, the Officers of the Air Intelligence Unit of Customs at Sahar Airport, Bombay while on duty at the Immigration counter No. 3 near Module II, arrival baggage hall of Sahar Airport, noticed the detenu who is an Assistant Inspector of Police, occupying the chair of counter No. 3. In front of the detenu, the Custom Officers noted that a handkerchief was lying. Immediately, they called two panchas. On questioning, the detenu admitted that the handkerchief belonged to him. On further questioning the detenu, as to whether he had concealed anything beneath it, he is said to have admitted having concealed 42 gold bars in a pouch. Accordingly, the handkerchief was removed and on opening the pouch, it was found to contain 42 gold bars of foreign marking and 26 notes each of 500 UAE Dirhams i. e. 13000 UAE Dirhams. On further questioning, the detenu, admitted that one Hakim Mohammed who had earlier alighted by Flight EK 504 the same day, had given him that pouch. He also agreed to identify him. Near the final exit outside the baggage hall, he identified a person who was sitting on chair as Hakim Mohammed. The passport of Hakim Mohammed was verified and the arrival Immigration stamp of 22-3-1994 was found to be marked with stamp A. On going through the positing register for arrival of Module II, it was noticed that the detenu as allocated stamp A, meaning thereby that the said Hakim Mohammed was attended by him. In the presence of the panchas, Hakim Mohammed admitted that the aforesaid pouch containing gold bars and foreign currency was handed over by him to the detenu. The aforesaid articles were seized vide a panch anama, prepared under the Customs Act. The statement of the detenu under section 108 of the Customs Act 1962 was recorded wherein he admitted the contents of the panchanama. He also admitted that he was transferred to S. B. 11 cm Bombay in November 1992 and was since working as an Immigration Officer. He also admitted having past association with Hakim Mohammed and of his having received gold from him on three earlier occasions and of delivering the same to one Mohammed, outside the Airport Building. He further admitted that on each of these occasions, Mohammed had agreed to pay him a sum of Rs. 20,000/- and in all had paid him Rs. 35,000/-in cash and had also given him one compact disc music system of the value of Rs. 25,000/ -. The statement of Hakim Mohammed was also recorded under section 108 of the Customs Act wherein he admitted that one Ashraf, whom he had met at Dubai Airport, asked him to smuggle gold bars to India and deliver the same to the detenu and that on each occasion, he would be paid Rs. 15,000/ -. He admitted that he succumbed to the greed for the money and on a number of occasions had smuggled gold to India. The detenu and Hakim Mohammed were arrested and produced before the Court of the Chief Metropolitan Magistrate on 23-3-1994 and whereas the detenu was granted bail, the same day, Hakim Mohammed was ordered to be released on bail on 25-3- 1994.

(3.) WE have heard Mr. M. G. Karmali for the petitioner and Mrs. R. P. Desai, Additional Public Prosecutor for the Respondents. Mr. Karmali the learned counsel for the petitioner assailed the impugned order of detention on a number of grounds, but; since in our opinion, this petition should succeed on a solitary ground, namely the non-placement of the order suspending the detenu before the detaining authority, at the time when he passed the impugned order, we are not considering the other grounds of challenge. The aforesaid ground is taken as ground No. 5 (V) in the Petition and reads thus: - (v) The Petitioner says and submits that by an order dated 28-3-1994, the detenu was suspended from services. Hereto annexed and marked Annexure G is a copy of the English translation of the said suspension order which was issued in Marathi language. The petitioner says and submits that the detenu having been suspended from service, there was not even a remote possibility much less any probability of the detenu indulging in any alleged prejudicial activities in future. The petitioner says and submits that it was, therefore, enjoined upon the sponsoring authorities to have placed before the detaining authority the said suspension order as it was a document of vital nature, which was likely to influence the mind of the detaining authority one way or the other. The petitioner says and submits that not only the said suspension order ought to have been placed before the detaining authority and not only the same ought to, have been considered by the detaining authority but also a copy of the same ought to have been furnished to the detenu along with the grounds of detention. The non-placement of the said vital document before the detaining authority and the consequent non-consideration of the same by the detaining authority, impaired the satisfaction arrived at by the detaining authority and the non-furnishing a copy of the same to the detenu along with the grounds of detention disabled the detenu from making an effective representation at the earliest opportunity against impugned order of detention. The impugned order of detention is thus, violative of Article 22 (5) of the Constitution and as such it is malafide null and void.