MOHAMMAD ZAFFAR Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) These seven writ petitions form an integral batch filed for the issue of writs of these writ petitions. All the seven writ petitions are linked together by common questions of facts and law. The detenus involved in all the cases are supposed to be engaged in a common pursuit of illegal smuggling of gold and selling the same in various parts of the country and obtaining foreign currency for the sale of the gold smuggled by them. These detenus have been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52/74), as amended by Act No. 23/87). hereinafter referred to as the "COFEPOSA Act". The facts in W.P. No. 7875 of 1991 may be narrated to indicate the common nature of issues of fact and law arising in the batch of writ petitions. However, it may be necessary to refer to the facts in an individual case if there is any special feature of the case which calls for consideration from a different angle insofar as that case is concerned. The general theme of facts, as given in W.P. No. 7875 of 1991, is as follows : The petitioner in W.P. No. 7875 of 1991 is one Mohd. Zaffar. He is undergoing detention in Central Prison at Hyderabad for indulging in activities resulting in grave violation of Section 3(1) of the COFEPOSA Act. The detenu, by profession appears to be a men of small means, who are eking out his livelihood as a painter in one of the localities in Hyderabad City. The order of detention dated 6-5-1991 was passed against him ordering his detention under S. 3(1)(iii) of the COFEPOSA Act, which is in the following terms :

(2.) By a letter bearing No. 596/General. A/91-10 dated 6-5-1991 the Government of Andhra Pradesh, General Administration (General. A) Department served on the detenu, through the Secretary to Government (Political), the grounds of detention narrating in detail the prejudicial activities indulged in by the detenu and other members belonging to the same group. A brief reference to the grounds of detention will not be out of place to indicate the modus operandi indulged in by the group of detenus covered in this batch of writ petitions. The Officers of Directorate of Revenue Intelligence, Zonal Unit, Madras, along with mediators, made a surprise check in Room No. 306 at Hotel Maya at Secunderabad at about 9-00 p.m. on 10-4-1991 in the reasonable belief that transactions in contraband gold and foreign currency were going on by some persons. At that time one Hanif Noor Mohammed Mansoor alias Iqbal and another person Ashram Champalal Sahadeva were present in the room. Some incriminating material used in concealing contraband gold and foreign currency and also one private account book and photo copy of the account sheet were seized by the officers. While the search was in progress, the detenu Mohd. Zaffar entered the room along with another person, known as Mohd. Nayeem. On interrogation, Hanif Noor Mohammad stated that the two persons, who came in later, mush have brought the sale proceeds in foreign currency for the foreign gold delivered to them earlier. The officers took a search of Mohd. Zaffar and Mohd. Nayeem. They recovered two packets from the trouser pockets of Mohd. Nayeem, which contained 24,600 US Dollars, equivalent to Rs. 4,84,001-58 ps. in Indian Currency. On further interrogation, both the new comers told the authorities that they had reached the hotel by a scooter bearing No. AP 10-A 3774. All the persons, who were present in the room at the time, failed to produce any valid documents about the possession of the foreign currency. The US Dollar currency was seized by the authorities on the ground that it was smuggled into India and it represented the sale proceeds of the contraband gold. The incriminating material and the account book and the sheet and also the scooter were also seized with the reasonable belief that these articles had been used in transportation of smuggled foreign currency. An inventory was made, annexed to the mahazar, on which signatures were taken. Mohd. Hanif in his statement given under section 108 of the Customs Act, 1962 dt. 11-4-91 admitted having received a copy of the seizure mahazar dt. 11-4-91 drawn up at Room No. 306 of Hotel Maya and confirmed the proceedings and other particulars contained therein. He also state that he discontinued his education after completing first year of M.Sc. Course and took up business of export of garments for children to Iraq. After some time he came into contact with one Omprakash of Delhi through another person Indrajit Singh. He was offered a monthly salary of Rs. 10,000.00 by Omprakash to help him in the business that he was carrying on. In December, 1990 he was introduced to one Ashok and six others, viz., Narayana, Nikunj Sharma, Champalal, Raj Kumar Mandan Sushil Kumar Soni and Ganesh. Hanif Noor Mohammed was asked to remain at Hyderabad and to receive the contraband gold to be sent to him by Omprakash from time to time through the above named six persons and then to deliver the gold to one Ismail of Hyderabad against money in foreign currency and send the sale proceeds in foreign currency to Omprakash in Delhi through the same carriers who delivered the gold to him in Hyderabad. Hanif Noor Mohammed admitted that he was carrying on operations from 22-1-1991 and that he had, as on the date of the seizure in question transacted in about 412 gold biscuits and passed on to Omprakash in Delhi in foreign currency sale proceeds worth about Rs. 1.82 crores. He identified some of the persons of the gang involved in the matter. Hanif Noor Mohammed also handed over some photographs of the three carriers viz., Sushil Kumar Soni, Narayana and Ganesh and gave graphic particulars about these carriers. The man Champalal gave a statement on 11-4-91 under section 108 of the Customs Act, 1962 admitting his presence in Room No. 306 of Hotel Maya at the time of the seizure of the various articles including foreign currency to which a reference has already been made above. He admitted that he was working as a carrier along with others for Omprakash of Delhi for clandestine transportation of contraband gold from Delhi to Hyderabad. He further stated that he used to transport nine gold biscuits in each trip and he was paid Rs. 1,800.00 in addition to expenses for each trip. Mohd. Nayeem his statement under section 108 of the Customs Act admitted the seizure of 24,600 U.S. Dollars from his possession by the officers at Room No. 306 of Maya Hotel at about 9-45 p.m. on 10-4-1991. He also stated that Mohammed Zaffar and himself were engaged by Ismail of Hyderabad for delivering foreign currency to Hanif at the said Hotel room and was to receive contraband gold against the foreign currency in accordance with the instructions give to him. Mohammed Zaffar also gave a statement under section 108 of the Customs Act admitting the seizure of 24,600 U.S. Dollars from the possession of Mohd. Nayeed by the officers and corroborated the statement of Mohd. Nayeem in all material particulars, and added that he had already carried contraband gold, foreign currency seven times in the manner stated above. In their separate statements recorded under Section 108 of the Customs Act, which are corroborative of each other in all material particulars Nikunj Sharma and Rajkumar Mandan admitted that they were engaged, along with four others, by Omprakash of Delhi for clandestine transportation of contraband gold from Delhi to Hanif Noor Mohammed of Hyderabad. They used to obtain foreign currency from him to be handed over to Omprakash at Delhi, concealed in water bottles. They confessed that they had undertaken three such trips from Delhi to Hyderabad for a remuneration of Rs. 1,800.00 each besides expenses for each trip.

(3.) The officers continued surveillance at the reception counter of Hotel Maya on 11-4-91. At about 6.30 p.m. on that day they came to know that a person, who was subsequently identified as Sushil Kumar Soni, was making enquiries about Room No. 306 at the Reception counter. The officers apprehended the said Sushil Kumar Soni and recovered 17 foreign marked gold biscuits from his possession and seized them under the cover of a mahazar. In his statement under section 108 of the Customs Act, Sushil Kumar Soni confirmed the particulars of Mahazar dt. 11-4-91 relating of seizure of contraband gold from his possession as true and he further confirmed that he was working for Omprakash of Delhi along with five others carriers and that he was carrying contraband gold from Delhi to Hanif Noor Mohammed in Hyderabad, according to the instructions and carrying back the sale proceeds from Hanif Noor Mohammed to Omprakash in Delhi. He identified Mohd. Nayeem and Mohd. Zaffar as the persons who were also engaged in the same operation. Mohd. Zaffar, Hanif, Champalal, Mohd. Nayeem Raj Kumar Mandan and Nikunj Sharma were arrested on 11-4-91 and Sushil Kumar Soni was arrested on 12-4-91 under the provisions of the Customs Act, 1962 and were produced before the Special Judge for Economic offences, Hyderabad on 12-4-1991 under a remand report. All the detenus moved a joint bail application on 14-4-91, except Sushil Kumar Soni, and they all pleaded innocence and alleged that the statements were taken in threat and coercion. The bail application was dismissed by the Special Judge for Economic offences, Hyderabad by his order dt. 23-4-91. Sushil Kumar Soni moved a separate bail application on 18-4-1991 and the same was also dismissed by the learned Special Judge for Economic offences, Hyderabad on 23-4-91. The Assistant Director, Directorate of Revenue, Madras filed an application dt. 26-4-1991 for extension of remand before the Special Judge for Economic Offences and the latter passed an order extending the remand of all the detenus up to 10-5-1991. All the detenus moved another bail application which was also dismissed by the Special Judge for Economic Offences. In the grounds of detention it is stated that on a careful consideration of the foregoing material, the authority is thoroughly convinced that the detenus have been engaging in clandestine keeping, concealing and transporting of contraband gold and also sale proceeds thereof in foreign currency at the instance of one Ismail of Hyderabad, who is yet to be traced and have been indulging in a manner seriously prejudicial to the national interest. The detenus were also informed that they have a right to make a representation in writing against the order of detention to the State Government, the Central Government and also the Advisory Board and if they wanted to make a representation they were advised to address it to the Chief Secretary to the Government of Andhra Pradesh or the Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi or to the Chairman, Advisory Board, as the case may be, or to all these authorities and may forward the representation through the Superintendent, Central Prison in which they are confined.