MANNABI SHAMSI Vs. B.B. GUJRAL

JUDGEMENT

(1.) BY this petition the petitioner who is the wife of one Qutubuddin, challenges the order of detention of her husband under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended, hereinafter referred to as the Act, and prays for a writ of habeas corpus.

(2.) ON March 31, 1978 the said detenue was served with an order of detention dated March 29, 1978, purporting to have been made by the respondent No. 1 under Section 3(1) of the Act, wherein it was stated that respondent No. 1 having been specially empowered for the purpose of Section 3 of the Act, was satisfied that with a view to preventing him from smuggling goods, the detenue be detained and kept in custody in the Central Prison Bombay. The grounds on which the order of detention was based were supplied to the detenue on March 31, 1978. They are to this effect: 1. You were detained on 6 -2 -1976 under COFEPOSA Act, 1974 in pursuance of Order No. DESK.XIX.SB.PSA. 017B dated 4 -2 -1976 issued by Secretary to the Government of Maharashtra, Home Department with a view to preventing you from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods and were released from detention on 22 -3 -1977. Within three months of your release from the detention the Customs Department started receiving intelligence reports that you had revived your smuggling activities. As the intelligence report received indicated that you organised smuggling of contraband goods in the Bassein Creek, a watch was kept by the Customs Authorities at Bassein on the night of 24/25 -6 -1977. The Customs Party intercepted one mechanised craft BSN 7321 in the Bassein Creek on the same night which was laden with contraband goods viz. wrist watches, textiles etc. of the aggregate value of Rs. 22.23 lakhs. Further intelligence received by the D.R.I. indicated that the aforesaid seized goods were despatched from Dubai and that you in association with others had organised landing of the same near Bassein. Intelligence received on or about 23 -7 -1977 indicated that you had planned to smuggle near Bassein wrist watches and textiles sometimes during the end of July, 1977. Further intelligence received in August, 1977 indicated that you and your associates had again planned smuggling of more consignments comprising gold, wrist watches, textiles etc. on or about 24th to 26th August 1977. You were not successful in this mission because of strict vigil maintained by the Customs Department. 2. Information was received on 14 -11 -1977 by Customs Officer stationed in Thane to the effect that contraband textiles were secreted at certain places in Ulhasnagar near Kalyan, Bombay. In pursuance of this information, the Customs Officers rushed to the places indicated in the information and recovered 9 packages from an open place Barrack No. 4/424 Camp No. 1 and 29 packages were found concealed in a ditch covered with dry grass and thorny branches. These 38 packages were found to contain smuggled textiles of foreign origin valued at Rs. 6,38,057.50 and the same were seized under the provisions of Customs Act, 1962. No person came forward to claim the aforesaid textiles seized by the Customs. The Customs Party found 2 Ambassador cars bearing No. MMD 4897 and MMB 7540 abandoned near the places of seizure of the aforesaid goods at Camp No. 3. The said cars were also seized. In the boot and seat of these cars remnants of dry grass were found. This indicated that the cars were used in the transport of the above smuggled goods. Subsequently inquiries revealed that the cars were registered in the following names: 1. MMD 4897 : Shri Hussein Hassam Mukadam,Shalimar Apartment, Kurla -Agra Road, Bombay -70.2. MMB 7540 : Shri Abdul Rashid Abdulla,Cement Chawl, 2nd Air Port Road,Chakala, Andheri.Both these cars were found to have been transferred in above names on or about 20 -5 -1977. On enquiry both the names and addresses have been found to be fictitious. In pursuance of further information, the Customs Party keeping watch at Mulund Check Naka intercepted one car MRX 5016 on 20 -11 -1977. There were three occupants in the said car by name Lachman Sobhrajmal Sajnani alias Lachhu, Purshottam G. Belani alias Pishu and Ashok Lachimal Vajirani. In the rummaging of the said car one Slip paper was found. Figures and other writing on the said slip of paper indicated that some account of smuggled textiles was written. Some of the figures and descriptions were identical with some of the packages and goods under seizure. The said car and the said slip of paper were seized for further enquiry. Lachman Sobhrajmal Sajnani was questioned by the Superintendent of Customs, Thana in the presence of Assistant Collector of Customs, Bassein on 20 -11 -1977. Replies given by him were recorded by the Superintendent of Customs, Thana. In his statement dated 20 -11 -1977 Lachman S. Sajnani, inter alia, stated that prior to his detention under Maintenance of Internal Security Act in July 1975, he was engaged in dealing in smuggled goods. That during his detention under Maintenance of Internal Security Act in Nasik Jail, he came in contact with Hans of Ulhasnagar Camp No. 3 and about 20 days back you contacted him on telephone and asked him to contact you near Rupam Talkies on 3rd November 1977. He stated that accordingly he met you and you told him 'they would start their work'. He further stated that on his agreeing to associate with your work you asked him to contact you after 4 -5 days on your telephone No. 370546. This telephone is installed in your residence at Flat Nos. 3 and 4, 6th floor, Gulmarg Apartment, Morland Road, 1st Club back Road, Bombay -8. Lachman referred to you in his statement as Shamshir. Lachman S. Sajnani further stated that you told him about necessary arrangements made for the work and that you asked Lachman to meet at Shil Phata near Kalyan in the morning of 12 -11 -1977. Lachman further stated that he went to the appointed place viz, Shil Phata in his car with Purshottam G. Belani, where Hans also arrived there in an Ambassador car. You arrived there in chocolate colour Ambassador car anl your car was followed by one truck bearing No. 6667. He also stated that the driver of the said truck left and another driver brought by Hans took the wheel of the said truck and all of them along with the truck left for Ulhasnagar and that you were not seen thereafter. He stated that there were about 80/85 packages (Bojas) in the said truck; the said Purshottam was entrusted with distribution of the said smuggled goods, collection of money and making payment to you and that he was to be paid Rs. 25/ - per package (boja). He explained that the slip of paper found in his car by the Customs Party contains details of goods of 21 packages and the same were written by Purshottam. He, however, refused to sign the statement, Purshottam G. Belani was similarly questioned on 20 -11 -1977 by the Superintendent of Customs in the Presence of Assistant Collector of Customs, Bassein, He admitted his association with the above said Lachman S. Sajnani, in acquiring the abovesaid seized goods. He also admitted having written the details of packages on the slip of paper seized by the Customs. He also refused to sign the statement. In the following up action of seizure of aforesaid smuggled goods at Ulhasnagar, your premises and premises of one Aziz Daga were searched simultaneously on 24 -11 -1977. In the premises situated at flat Nos. 3 and 4 in Gulmarg Apartment where telephone No. 370546 is installed, the Customs Party found among other papers one telephone bill in respect of telephone No. 370546 for the period from 6 -10 -1975 to 24 -1 -1976. The telephone bill indicated that during the period as many as 11 urgent trunk calls were booked for telephone No. 823 of Ulhasnagar and one lightning trunk call to telephone No. 237 of Bassein. Telephone No. 237 of Bassein was installed at the Baflekar Fishing Product in Bassein. Baflekar Fishing Product is admittedly the business concern of Hari Bhiva Baflekar of Naigaon, Bassein. You have denied having made trunk calls to the above said telephone numbers at Ulhasnagar and Bassein and also denied any connection with those persons who had these telephone numbers. Hari Bhiva Baflekar also denied acquaintance or any business connections with you. In your another residence at flat No. 801 -802 in Fabina Premises Co -operative Society at Bandra, the Customs Officers on search on 24 -11 -1977 found two petrol bills, viz., (1) No. 9779 dated 4 -6 -1977 of Parmar Auto Service, Dhulia. And (2) No. 28844 dated 5 -6 -1977 of M/s. Shivchand Amolakchand, Shivpuri (U.P.). Both these bills had No. MMD. 4897 written on them. When questioned about those petrol bills in your statement dated 13 -12 -1977 you stated that you had hired a private taxi MMD. 4897 at Rs. 0.70p. per Km. to go to Aonla in Uttar Pradesh to attend a wedding of your relative and on the way you purchased petrol at Dhulia and Shivpuri as in the said petrol bills. You further stated that this taxi was hired by you at Pritam Hotel near Dadar, Bombay, and that you did not know the name of the driver and the owner of the said taxi. This car bearing registration No. MMD 4897 was found near the place where 29 packages containing smuggled textiles were seized at Camp No. 3, Ulhasnagar and was used for the transport of smuggled goods. Enquiries made by the Customs Officers revealed that car MMD 4897 was a private car and not a taxi. The truck No. 6667 mentioned by Lachmandas Shobhrajmal Sajnani was found to be MHT 6667. Further inquiries revealed that it is registered in the name of Abdul Rashid Abdulla, Cement Chawl, Old Air Port Road, Chakala, Bombay -93. This is the same name and address as of the owner of the aforesaid car No. MMB 7540. This truck was also found to have been transferred in this name on or about 20 -5 -1977 when the car MMB 7540 was transferred in the same name. The truck in question MHT 6667 was located on 6 -3 -1978 and seized by the Central Excise Officers. The driver of the truck Appa Shankar Gaikwad stated in his statement dated 6 -3 -1978 that he was engaged on this truck in December, 1977 by the regular driver Mamoo. This Mamoo had been identified as Mumtazali Amirali. Mumtazali Amirali is your associate in smuggling and was detained under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 2 -8 -1976 under Order No. DESK.SB/PSA -0176 (iee)(B) dated 29 -5 -1976 issued by the Secretary to Government of Maharashtra, Home Department (Special), Bombay. The aforesaid truck, according to the said driver Appa Shankar Gaikwad was undergoing repairs in the workshop of one Mohan Mistry at Dana Bunder, Bombay, in in December 1977 and at that time you had come there. Appa Shankar Gaikwad presumed that you were Abdul Rashid Abdulla, the owner of the truck. Appa Shankar Gaikwad identified you from your photograph as the owner of this truck. He also identified Mumtazali Amirali as Mamoo from his photograph. The cleaner of the said truck Prakash Mahadeo Shinde in his statement dated 4 -3 -1978 identified Mumtazali Amirali as Mamoo from his photograph. One Manekji Lalji Soni who is a goods broker arranging for the loads for trucks in Dana Bunder confirmed in his statement dated 6 -3 -1978 that the truck MHT 6667 was being driven by Mamoo and he had introduced said Appa Shankar Gaikwad to Mamoo who employed him. He identified you from photograph as the owner of the said truck and Mumtazali Amirali as Mamoo, the regular driver of that truck. One Sayed Ibrahim alias Mohamed, the partner of aforesaid Mohan Mistry in the said workshop at Dana Bunder also identified you from the photographs as the owner of the truck MHT 6667 and Mumtazali Amirali as Mamoo, the driver of the said truck and stated in his statement dated 7 -3 -1978 that you had paid him Rs. 600/ - as service/repair charges and you claimed to be the real owner of the truck MHT 6667. You were arrested in the above case on 15 -2 -1978 and were released on a bail of Rs. one lakh. The above grounds are communicated to you in pursuance of clause 5 of Article 22 of the Constitution of India. I consider it to be against the public interest to disclose the source of the intelligence referred to in the grounds of detention above and further consider it against the public interest to disclose further facts contained in the intelligence referred to in the grounds of detention.

(3.) THE petitioner having challenged the detention on several grounds, the respondent No. 1 has filed an affidavit in reply traversing the said averments.