MOHOMED YUNUS FAJJU BOXWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) MOHOMED Yunus Fajju Boxwala, who claims to be the uncle of one Sajid Mohammed Iqbal Boxwala, has approached this Court by filing this petition under Article 226 of the Constitution of India challenging the order dated 26th of June 1995 made by the Joint Secretary to the Government of India, respon-dent No.2, in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act" for the sake of brevity) detaining the said Sajid Mohammed Iqbal Boxwala (herein-after referred to as "the detenu") "with a view to preventing him in future from smuggling goods". The order of detention is at Annexure 'A' to the petition. The order is based on the grounds of detention, which have also been communicated to the detenu, dated 26th June 1995 at Annexure 'B' to the petition.

(2.) PERUSAL of the grounds at Annexure B to the petition shows that the detenu was arrested at the Sahar Airport, Bombay. The detenu's baggage comprised of two poly bags and one brown coloured zipper bag. One of the poly bags contained the clothes of the detenu and was returned to him. From the second poly bag, Indian currency of Rs.7,22,000/- and foreign currency equivalent to Indian Rs.21,07,560.70 were recovered. From the brown coloured bag, Indian currency of Rs.26,28,000/- and foreign currency equivalent to Indian Rs.35,78,050.25 were recovered. According to the grounds, Indian currency and foreign currency totaling Rs.90,35,610.95 were seized from the detenu. It is further stated in the grounds that the statement of the detenu was recorded under Section 108 of the Customs Act, 1962. It is stated that the detenu in his statement divulged that since 1991 he had been working as a carrier earlier for one Shri Abbas based at Dubai and from the last 5-6 months for Babu Kasam. It is further stated that in the statement the detenu stated that he used to work as a carrier of foreign currency, Indian currency and jewellery for others on payment of remuneration to the foreign countries. The grounds also refer to the statement made by Babu Kasam alias Abubakar Mohammed Zariwala. It is further stated that after his arrest the detenu was produced before the Magistrate and was remanded to judicial custody. It is further stated that on 16th June 1995, the detenu was released on bail by the Magistrate with the condition "(i) payment of Rs.1,25,000/- in cash or surety of the same amount or (ii) payment of Rs.1,00,000/- in cash and surety of Rs.50,000/- by your father." It is further stated in the grounds that from the documents placed before respondent No.2 and from what is stated in the grounds, it is evident that the detenu had engaged himself in smuggling in Indian and foreign currencies and that unless prevented he will continue to indulge in such activities in future also. It is further stated that respondent No.2 is aware that the detenu has been granted bail and that the detenu will continue to indulge in such activities in future unless prevented.

(3.) AT the hearing of the petition, on behalf of the petitioner, the first point that was raised was that the detenu was released on bail by an order dated 16th June 1995. The Detaining Authority has referred to the bail order dated 16th June 1995. However, before making the detention order, complete order made by the Court was not placed before the Detaining Authority. What was placed before the Detaining Authority was only the operative part of the bail order. The reasons that weighed with the Court for granting bail to the detenu were not placed before the Detaining Authority. In the submission of the petitioner, non-placement of the complete order before the Detaining Authority before making the detention order, and the non-furnishing of a copy of it to the detenu, vitiates the detention order. On behalf of the petitioner, reliance was placed on the judgment of the Supreme Court in the case of Abdul Sathar Ibrahim Manik Vs. Union of India, AIR 1991 Supreme Court 2261. Our attention was invited to para 12(6) of the judgment. The Supreme Court in para 12(6) of its judgment in Abdual Sathar's case has concluded -