SALIM KHAN MUZAFFAR KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Secretary to the Government of Maharashtra, Home Department by order dated December 8, 1987 passed in exercise of powers under the sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 directed detention of the petitioner with a view to preventing him from smuggling goods. The order was served on February 2, 1988 and the grounds of detention were supplied.

(2.) The grounds, interalia, recite that on July 9, 1987 the detenu arrived at Sahar Air Port from Dubai. The detenu was in possession of Indian passport. The detenu filed a baggage declaration to the tune of Rs. 6,370/-. The Customs officers suspected that the detenu was carrying contraband goods on his person and made enquiries. The detenu denied carrying of any contraband goods. The detenu was then asked to undertake a metal detector test and thereafter six gold bars concealed in rectum packed in two bundles were recovered. The detenu also took out two bundles from his private parts. The bundles were wrapped in balloon and were found to contain three gold bars. Accordingly, six gold bars of 10 tolas each and three gold bars of Swiss bank markings were recovered and the recovery was of the total value of Rs. 1,32,924/-. The statement of the detenu was recorded under Section 108 of the Customs Act and the detenu admitted that he visited Dubai on seven occasions. On his first visit the detenu had taken 2000 Dhirams in a cigarette packet. On the second visit the detenu started taking money from Hawala from one Sameer and used to bring cutlery, miscellaneous goods and sell them in the market for profit. The detenu stated that the seized goods belonged to him and he had taken 36,000/- Dhirams from Sameer before proceeding to Dubai to make purchases. The detenu stated that he had adopted the method of bringing gold concealed in rectum in order to make money, though he was conscious that it is an offence. Considering the fact that the detenu was making frequent trips abroad, the detaining authority was satisfied that it is necessary to detain the petitioner to prevent from indulging in smuggling in future. The order of detention is under challenge in this petition.

(3.) Shri Irani, learned counsel appearing on behalf of the detenu, raised two contentions to challenge the legality of the order. The first submission of the learned counsel is that vital and relevant document was not placed before the detaining authority. The learned counsel submitted that on arrest on July 9, 1987 the detenu was produced before the Chief Metropolitan Magistrate, Bombay on July 10, 1987. The Magistrate, while remanding the detenu to the judicial custody, directed that the Intelligence Officer, Air Intelligence Unit, Sahar Airport may retain the passport of the detenu. Shri Irani submitted that the order of the Magistrate directing retention of the passport was not placed before the detaining authority and that is a vital and relevant factor and failure to do so would vitiate the order. It is not possible to accede to the submission of the learned counsel. It is not in dispute that the application for remand made by the Customs Authorities was placed before the detaining authority. It is equally not in dispute that an endorsement made by the officer that the detenu was produced before the Metropolitan Magistrate and no bail was granted while remand was granted till July 24, 1987 was also placed. The mere fact that the direction of the Magistrate that the Customs Officer may retain the passport of the detenu was not brought to the attention of the detaining authority would not vitiate the order. In our judgment, it is not a vital and relevant circumstance in the facts and circumstances of the case. Shri Irani invited our attention to the unreported decision of Division Bench of this Court dated February 26, 1988 in Criminal Writ Petition No. 1231 of 1987. It is undoubtedly true that the Division Bench observed that if the passport was retained by the Customs Authorities, then the detenu could not have proceeded abroad and the detenu was required to apply to the Magistrate for return of passport with a view to proceed abroad. According to the Division Bench, this was a vital and material fact. Shri Irani submitted that as in that case the order of the Magistrate retaining the passport was vital and material fact, and the same rule should be applied in the present case. The submission cannot be accepted for more than one reason. In the first instance, the conclusion on facts in a given case cannot be binding on another court. Secondly, in the present case we find that the detenu had travelled abroad on at least six occasions and only with a view to smuggle contraband goods, in India. In these circumstances, in our judgment, the fact that the direction of the Magistrate that passport should be retained by the Customs Officer is not placed before the detaining authority is not fatal to sustain the order.