SHARIFA ABUBAKER ZARIWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, Smt. Sharifa Abubaker Zariwala, has filed this petition under Article 226 of the Constitution of India, challenging the order dated 26th of June 1995 issued by the Joint Secretary to the Government of India under the provisions of 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) preventively detaining Shri Abubaker Mohammed Zariwala @ Babu Kasam @ Chacha, who is the husband of the petitioner. A copy of the impugned order dated 26th June 1995 is at Annexure 'a' to the petition. THE order of detention at Annexure 'a' is accompanied by the grounds of detention bearing the same date, namely, 26th June 1995, and a copy of it is at Annexure 'b' to the petition.

(2.) IN the grounds of detention at Annexure 'b' it is stated that in pursuance of a specific information that one passenger whose name was given as Zubair shall be travelling on PIA Flight no. PK-277 to Karachi on 3.6. 1995, carrying with him huge quantity of INdian and foreign currency, and that he was to be dropped at the Bombay Airport (NIPT, Sahar INternational Airport) by Abubaker Mohammed Zariwala (hereinafter referred to as "the detenu") in a blue coloured Fiat car No. MH-01-B-5079, the Officers of the Directorate of Revenue INtelligence, Zonal Unit, Bombay, located the said passenger Zubair @ Sajid while he was standing in the queue of the PIA check-in counter. On enquiry being made, the said Zubair @ Sajid disclosed that his full name is Zuber Mohammed Iqbal and that he was in fact carrying huge amount of INdian as well as foreign currency for delivery to a person at Dubai. He further stated that though he had a confirmed ticket of 6th June 1995, he was still taking a chance for getting a seat on the flight of 3rd June 1995. He further stated that he had been assured by the detenu that a confirmed seat would be made available to him on that day. It is further stated in the grounds that the said Sajid disclosed that the detenu was his associate and also pointed out the detenu who at that time was in the visitors lounge at the Airport, Module-I. The detenu was also apprehended and questioned. The detenu gave his name as Babu Kasam @ Babubhai and accepted that he had come to drop the said Sajid and that he had given to the said Sajid huge quantity of INdian and foreign currency for delivery at Dubai. The baggage of the said Sajid was examined in the Airport Building. It contained two poly bags and one brown coloured zipper bag. The baggage was checked in the presence of panchas, the detenu and the said Sajid. One poly bag contained only clothes of the said Sajid and therefore was returned to him. The second poly bag contained assorted packets of soaps, Rasna Soft Drink Concentrate, zarda pouch, etc. On opening the packets, barring a few genuine packets which contained the declared products, all other packets contained INdian as well as foreign currency neatly concealed so as to appear as a packet of soap or Rasna concentrate and the like. A total of INdian currency of Rs. 7,22,000/- and foreign currency equivalent to INdian Rs. 21,07,560. 70 were recovered of which a panchnama was drawn. On examination of the brown coloured zipper bag, it was found to contain similar packets from which INdian currency of Rs. 26,28,000/- and foreign currency equivalent to INdian Rs. 35,78,050. 25 were recovered of which a panchanama was drawn. The grounds further reveal that the said Sajid was thereafter questioned and he was not in possession of any legal documents permitting him to carry the said currency out of INdia and therefore the INdian currency as well as the foreign currency, totally amounting to Rs. 90,35,610. 95, were seized and a panchanama was drawn. The packing material and the camouflaging material were also seized. On the persons of the said Sajid and the detenu being searched, certain visiting cards and other documents were recovered which indicated that they had a link with the smuggling and therefore they were also seized. The blue coloured fiat car having registration No. MH-01-B-5079 was also seized. It is further stated that the detenu and the said Sajid were then escorted to the DRI office at Colaba along with the seized goods and the car and the panchas. During the course of investigation, the authorities also searched certain premises, namely, the residential premises of the said Sajid where nothing incriminating was found. The residential premises of the detenu were searched where 15 Pears, Le Sancy Soaps were recovered without their outer covers. These articles were seized under the provisions of the Customs Act under the reasonable belief that the outer covers of these soaps were used for packing, concealing and camouflaging the INdian and foreign currency seized from the said Sajid. The shop premises of M/s Abhrani Trading Corporation were also searched and some documents were recovered. The residential premises of one Khalil Mohammed Abhrani were also searched from where some documents were seized. The hotel premises of Hotel Sukoon, 1st floor, were also searched but nothing incriminating was found there. Similarly at the hotel premises situated at Jilani Guest House, inspite of search, nothing incriminating was found. The grounds further reveal that during the course of interrogation the said Sajid and the detenu were questioned independently and their statements were recorded under Section 108 of the Customs Act. It is further stated in the grounds that in his statement the said Sajid stated that he possessed two passports in two different names and that he was working as a carrier, earlier for one Abbas based at Dubai and that now since the last 5 to 6 months he has been working as a carrier for the detenu. He stated that he had been carrying imitation jewellery from Bombay to Pakistan. He further stated that every time he used to get a ticket for flight from Bombay to Dubai via Karachi. He further stated that there is a transit period of 6 to 7 hours at Karachi during which Dubai bound passengers are taken to a hotel in an Airlines bus and on the way, the said Sajid, according to his statement, used to give the packets of imitation jewellery to the driver of the bus one Shri Kadir and that while returning to the airport, this driver paid him the sale proceeds and also gave him other goods mainly chewing pan for carrying it to Dubai. He also stated that he had been working for the detenu and was getting Rs. 1,500/- as his remuneration for each trip. He further stated that the detenu had been sending him almost every month. He stated that on three previous occasions he had carried foreign currency and had delivered it at Federal Exchange at Dubai to a person whose name is Hanif. He further stated that the detenu this time had asked him to deliver the currency to one Karim at Karachi Airport. He stated that on all the occasions the currency had been given by one Khalil Abhrani @ Khalilbhai to the detenu which was given to Sajid by the detenu to carry it further to the foreign country. It is then stated in the grounds that a further statement of the said Sajid was recorded on 14.6.1995 under Section 108 of the Customs Act, wherein he stated that in one of his previous visits to Dubai he had carried INdian and foreign currency as per the details of the chit shown to him and that the chit shows 71 items of different varieties of packing in which currency was smuggled out of INdia. He further volunteered and showed the shop premises belonging to Shri Khalil Abhrani @ Khalilbhai.

(3.) THE grounds further reveal that the detenu had applied for bail before the C. M. M. , Esplanade Court, Bombay, which was initially declined. However, it was granted on 23.6.1995. It is further stated in the grounds that the said Sajid was granted bail with certain conditions by the Court on 16.6.1995. It is also stated in the grounds that the detenu filed his retraction application on 6.6. 1995 and that the Department had filed rebuttal reply on 12.6.1995. THE Detaining Authority, in the grounds, finally states that from the documents placed before him, it is evident that the detenu has been engaging in the smuggling of Indian and foreign currency and that unless prevented, he will continue to indulge in such activities. It is further stated that the Detaining Authority is aware that the detenu has been granted bail and that he will continue to indulge in future in the smuggling activities unless prevented. THE Detaining Authority, therefore, concluded that it was necessary to preventively detain the detenu. Pursuant to the detention order at Annexure 'a' to the petition, the detenu was placed under detention. THE representation made by the detenu to the Detaining Authority was rejected on 28.8.1995 and the detention order was confirmed by the Central Government by order dated 25.9.1995. By the confirmation order, at Annexure 'k' to the petition, dated 25.9.1995, the detention period of the detenu was determined as one year with effect from 27.6.1995. THErefore, when the writ petition was taken up for final hearing though the detenu was in custody, while the hearing of the petition continued, he was released from detention. However, proceedings under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the SAFEMA") have been initiated on the basis of the detention order and therefore it became necessary for us to continue with the hearing of the petition. Thus, though the detenu is not presently in custody and the period of his detention is over, the validity or otherwise of the detention order is to be examined in view of the proceedings initiated on the basis of the order under the SAFEMA.