RAJU GHANASEKARAN Vs. C D SINGH

JUDGEMENT

(1.) By filing this writ of habeas corpus petition, the detenu by name Raju Ghanasekaran who was detained by an order of detention passed by the 1st respondent vide detention order No. SPL. 3(A)/PSA 1296/90, dated 13-11-1996 detaining him by virtue of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) has challenged the detention order along with the grounds of detention which was contemporaneously served on the detenu on the date of his arrest i.e. on 1-7-1997, and prayed for quashing and setting aside the same.

(2.) On 15-12-1995 the officers of the Kalamboli Police Station interrogated five persons namely, (1) Kamaluddin Kikan Shaikh, (2) Nazir Abdul Hamid Tungekar, (3) Pappu alias Jethanand Lekhmichand Tolani, (4) Shabbir Ahmed Mohammed Akbar Qureshi, and (5) Nasim Khan Nasir Khan on suspicion at Panvel Thane Road, near the Kalamboli Fire Brigade. It was also stated that some persons among the above had attempted to tamper with the seal of a container of the truck trailer bearing No. MH-04-C4807 and container No. IPEL-200057-7. When the police opened the container under a panchanama dated 17-12-1995 a large quantity of Russian ball bearings and heavy metal scraps were found in it which were seized by the police believing that the container had been pilfered from the Jawaharlal Nehru Port. On investigation 13 persons referred in para 3 of the grounds of detention were arrested for having conspired to remove the container from the port unauthorisedly which include the name of detenu, and they were produced before the Judicial Magistrate, First Class, Uran who remanded all of them to police custody and latter released on bail on 28-12-1995. However, the seized goods including the vehicles were taken in custody by the Customs authorities, Jawahar Customs House under a panchanama on 31-12-1995.

(3.) The container was found with 1,12,267 Russian made ball bearings and 4770 Kgs. of heavy metal scrap totally valued at Rs. 11,61,145/- (FOB) and Rs. 82,89,622/- according to the prevailing market value. The said goods were seized under the Customs Act under the reasonable belief that they were smuggled and were imported without documents to evade Customs duty. The truck trailer used to transport the smuggled goods, the container which carried the said goods and the Maruti van bearing No. BLL-209 which had earlier been found on the site at Kalamboli by the police were all seized by the Customs authorities under the relevant provisions of the Customs Act. On further investigations it was also learned that the said container had been brought by the ship M. V. Susak from Dubai on 3-12-1995 vide voyage No. 79/95, and bill of lading No. NHA/4839 dated 27-12-1995 consigned in the name of M/s. Fatima International, 32, Abhinandan, 306, L.B.S. Marg, Kurla (West), Mumbai 400 070. The Customs found subsequently that nobody came to claim the said goods. The statement of all the above 13 persons were recorded which showed that in substratum a conspiracy between Kokkadan Ibrahim and others were hatched out to smuggle the goods from Dubai and the said persons were to be paid by Mohammed Asharaf Rs. 5.5 lakhs as consideration as charges for the illegal clearance of the said goods. In order to execute the plan Mr. Z. A. Mohd. and Kokkadan approached Kamaluddin who further obtained the services of Nazir Tungekar through Bhuvan alias Mohan P. Koli. K. K. Shaikh obtained Maruti Van above referred from Pappu Tolani for use in the removal of the container from J. N. Port. Mr. Tolani sought the assistance of the detenu and the driver of the van Manoharan who was also working with J. N. Port. It also appears that they had also chalked out a series of meetings at Ashoka Hotel, Uran. Kamaluddin Shaikh who was conversant with the formalities for movement of the containers and who had worked with a Stevedores Company hired a truck trailer from M/s. Prakash Goods Carrier, Mumbai to remove the containes clandestinely from J. N. Port. He had also instructed Koli to collect the relevant documents of import like bill of lading, certificate of origin, commercial invoices etc. The said truck trailer driven by Nasim Khan was brought outside the container gate of J. N. Port on 15-12-95 with the connivance of CISF Constable P. V. Sreekumar and the truck trailer entered the port without a gate pass. CISF Constable Sayed Beer Mohammed who was on gate duty allowed the entry and the truck trailer was parked near the canteen where he met driver Manoharan, the detenu and P. V. Sreekumar who instructed Nasim Khan to park the truck trailer alongside a container. In the presence of the detenu as also Constable Sreekumar crane operator Shashikant Mhatre, who loaded the container, was paid by driver Nasim Khan on the directions of Manoharan who drove the truck trailer without connivance of Nasim Khan who followed on foot and was trying to stop the trailer before the container gate. Nasim Khan left the J. N. Port without a gate pass after Manoharan spoke to CISF Constable Perumal A. Gandhi. Nasim Khan brought the truck trailer to Jasai on the instructions of Shabbir Qureshi at about 8.30 p.m. on 15-12-95.