DINESH NAINMAL JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner has by this petition under article 226 of the Constitution of India challenged the validity of the order of detention dated 15.1.97 passed by the Government of Maharashtra in the Home Department against his father Nainmal Joshi, who will hereinafter be referred as 'detenu'. By the order of detention the detenu has been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('Act' for short). With a view to prevent him in future from smuggling of goods. The order dated 15.1.97 was actually executed on 15.7.97. The grounds of detention formulated on the same day viz. 15.1.97 were supplied to the detenu at the time he was taken in custody. Pursuant to the order of detention copies of documents on which the detaining authority relied were also supplied to him simultaneously.

(2.) WE will proceed to mention the facts as they emerge from the grounds of detention supplied to the petitioner in so far as they are relevant to the disposal of the petition on the main ground urged by Mr.Karmali, appearing in support of the petition. On a prior information discreet watch was kept by the officers of DRI for Nainmal Joshi (the detenu) on 22.7.96 near the Sonawala Cottage, Gola lane, Fort, Mumbai 1. The officers noticed the detenu carrying a plastic bag in his hand and they apprehended him and seized from him foreign currency worth Rs.13,25,000/- found kept in the plastic bag carried by the detenu. The detenu told DRI officers that he was to deliver the foreign currency to one Abdul Razak. Pursuant to this information, the business premises of Abdul Razak were searched on the same day by the officers of the DRI and foreign currency of different countries and different denominations was seized from the premises of Abdul Razak. The statement of the detenu was recorded under section 108 of the Customs Act, 1962 in which he admitted that he was buying smuggled foreign marked gold biscuits from Abdul Razak for the last one month and that he had made part payment to him for purchase of 38 foreign marked gold biscuits in foreign currency and that the balance amount of Rs.13,25,000/- was to be paid in the evening of 22.7.96 in foreign currency. The detenu also admitted that 38 foreign marked gold biscuits purchased by him from Abdul Razak were sold to various buyers and that the payments were received by him from various buyers in foreign currency and that he did not know the names and addresses of various buyers. He further told that foreign currency equivalent to Rs.13,25,000/- was given to him by one Akbar to whom he had sold part of the above foreign marked gold biscuits which were purchased by Abdul Razak. He also stated that he did not know full name and address of Akbar. In further statement of the detenu which was recorded on 25.7.96 the detenu stated that he was arrested in the seizure case of 30 f.m. gold biscuits seized by the officers of Marine & Preventive Wing of Mumbai Customs on 15.5.93 from one Ramdas Bhikaji Satpute of Mumbai. Then he was also detained under the Act. He also stated that he has not paid the penalty of Rs.10,00,000/- imposed upon him in the proceedings. The DRI also recorded statement of Abdul Razak wherein he has admitted that he has sold gold biscuits to the detenu. On the basis of the above material, the detaining authority formed subjective satisfaction that the detenu has been indulging in prejudicial activities and accordingly he has passed an order directing detention under section 3(1) of the Act with a view to prevent the detenu from carrying smuggling of goods.

(3.) THE grievance of Mr.Karmali that the detaining authority has passed the order mechanically and without application of mind is based upon ground 7 of the petition which reads as follows :