ABDUL BASHEER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY filing the writ of habeas corpus under Article 226 of the Constitution of India, the petitioner, who is a friend of the detenu, by name, Shri Abbas Kacheri Kunnummal, has challenged the order of detention passed by the 2nd respondent, viz. Shri G. S. Sandhu, Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority vide No. S. P. L. 3 (A)/ P. S. A. 1097 /77 Home Department (Special), Mantralaya, Mumbai 400 032 dated 11-11-1997, as confirmed by the State of Maharashtra, the 1st respondent, thereby, detaining the detenu by virtue of section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for all its alleged impropriety and illegality. The order of detention above referred shown in Annexure-A and the grounds of detention shown in Annexure-B and the documents relied upon by the detaining authority in Annexure-C, were executed on the detenu on 3-2-1998 and served upon him all the three documents simultaneously.

(2.) THE prejudicial activities grounded in the order of detention at Annexure-B, in substratum, are as follow : on 8-6-1997 the Air Intelligence Unit with its officers on suspicion, intercepted one passenger, by name, Shri Abbas Kacheri Kunnummal, the detenu herein, who was holding Indian Passport No. K-320542 issued on 27-2-1992 at Kozhikode, Kerala, near the exit gate of Module I arrival Hall of Sahara International Airport, Bombay. It appears that the said detenu had arrived from Riyadh by Saudia Arabian Airlines Flight No. SV-742 on ticket No. 65:4221:365:791:1 for the sector Riyadh-Bombay (which was stapled with another ticket No. 065:4221:356:792:2 for Bombay Cochin) and opted to clear himself through green channel. The officers of the Air Intelligence Unit, asked him in the presence of the panchas whether he was carrying any gold in his baggage or on his person to which he replied in the negative. On dissatisfying with his reply, his baggage consisting of one brown colour briefcase as hand baggage and one cardboard carton as checked in baggage bearing tag No. SV-161565, was put in the screening machine, in the presence of panchas, which showed some dark patches on the monitor which could not be explained by him. Examination of his baggage resulted in the recovery of 13 dry battery cells of "everyday" brand. All of which were broken open which resulted in the recovery of 38 gold bars of 10 tolas each bearing foreign markings, totally weighing 4310. 50 grams and valued at Rs. 17, 02,647/- IMV and Rs. 20,27,600-LMV. These contrabands were seized by officers concerned in the presence of the panchas with reasonable belief that they could have smuggled into India and hence liable to confiscate under the provisions of the Customs Act, 1962. The detenu had admitted the knowledge of the presence of contraband gold in his baggage concealed in the dry battery cells.

(3.) THEN he was examined and his statement was recorded on 8-6-1997 under section 108 of the Customs Act, 1962 in which he had stated, inter alia, that he has been working in Riyadh as a salesman in a clothing store and earning 700 Saudi Riyals per month and on his arrival from Riyadh by Saudia Airways flight No. SV-742 after opting to clear himself through the green channel, his baggage was screened again by customs officers on suspicion and that on opening the baggage, the officers recovered one piece of "eveready" brand battery cell which they broke open which resulted in the recovery of three gold biscuits of 10 tolas each and that, on thorough search of his baggage by officers resulted in the recovery of 12 more battery cells which were broke open and resulted in the recovery of 34 gold bars or 10 tolas each, thus in all 37 gold bars of 10 tolas, each totalling weighing 4310. 5 grams valued at the above value referred to above and thus he admitted the said facts in his statement. He would further admit that he came to India after a stay of one year and that the said contraband does not belong to him but however the said contraband was concealed in battery cells and that he met his childhood friend by name Abdul Majeed s/o Late Shri Imbichi Mohd. Haji who gave him a ticket for 8-6-1997 from Riyadh to Bombay and connecting flight to Cochin and that the said Abdul Majeed packed tour bags and told him that there was gold in the baggage to be handed over to K. Moideen of Kerala; and that he would be paid a commission of Rs. 50,000/- and that the said gold was to be collected from his residence in Kerala by K. Moideen and that he knew that what he had done was wrong and was an offence under law and that he had done this job to earn quick money.