RUMANA BEGUM Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The 1st respondent passed an order dt. 30-8-1991 directing that Shri Mohammad Ishaq, S/o Hasan Mohammad, should be detained under section 3(1)(iv) of Conservation of Foreign Exchange and Prevention of Smuggling activities Act, 1974, for short the 'COFEPOSA Act'. Simultaneously, the grounds for detention were communicated to the detenu in the letter of the 1st respondent of the same date. Petitioner representated his case before the State Advisory Board, which ratified the order of detention. The wife of the petitioner has filed this petition for the issue of a writ of Habeas Corpus and to call for the records of the 1st respondent, leading to the detention order and quash the same, so as to set the detenu at liberty.

(2.) The facts leading to the petition are the following : Officers of Directorate of Revenue Intelligence, Madras and the Customs & Central Excise Officers of Vijayawada intercepted Khaja Nazmuddin alias Nizam. On being questioned, he disclosed his name and admitted that he was coming from Kharagpur. He denied that he was in possession of any foreign gold. Metal-detector test disclosed a signal of having concealed metal near the anus. At that stage he admitted having concealed eight foreign marked gold bars in his rectum and volunteered to eject them. On further search of his body, 4 baloon packets containing two gold bars each with foreign markings were found out. Those gold bars were found weighing 933.20 grams of 24 Caret purity, worth Rs. 3,95,676.80 ps. Since Sri Nazmuddin could not produce any valid document supporting his possession of the gold, the officers seized the gold bars with packing material and the polythene hand bag and the clothes, under cover the Mahazar. On being summoned under S. 108 of the Customs Act, by notice dt. 22-8-1991, Sri Nazmuddin stated that one year back he came into contact with one Mohd. Ishaq, through a friend, with telephone No. 526089 and that he was offered employment for carrying foreign currency to Calcutta and bringing foreign made gold bars from there for a remuneration of Rs. 500/- per trip besides expenses. Nazmuddin also disclosed that he was directed to contact Sri Hanuman at Calcutta, and that he had brought foreign gold in return. Having reached Hanuman, Sri Nazmuddin was to be identified by the Yellow Polythene bag in his hand with "New Meena Bazar", printed on both sides, that the representative of the said Hanuman trained him in keeping the gold bars in rectum in his first trip to Calcutta and that he had already transported foreign currency and foreign gold thrice in this manner at the instance of Mr. Ishaq and received a remuneration of Rs. 1500.00 from him. He stated further that he left Hyderabad for Vijayawada by Bus on 18-8-1991 with 13000 American Dollars and reached Calcutta on 20-8-1991 by train from Vijayawada, that Sri Nazmuddin received 8 foreign marked gold bars in 4 packets of 2 bars each at Calcutta from the representative of Sri Hanuman and returned to Vijayawada via Kharagpur by Madras Mail on 21-8-1991 and the officers intercepted him at Vijayawada Railway Station and seized the 8 gold bars in question. He also gave the descriptive particulars of the detenu and stated that he had constructed a new house near race course, Malakpet, Hyderabad with telephone No. 552669. The customs officers arrested Sri Nazmuddin on 22-8-1991, produced him in the court of the 4th Metropolitan Magistrate, Vijayawada on 23-8-91. The Court remanded him to judicial custody till 6-9-1991. Though the officers of Central Excise, Hyderabad, searched the residential premises of Sri Khaja Nazmuddin at Hyderabad on 24-8-1991 under a search warrant, nothing incriminating came to light. The premises of the detenu was also searched under a Search Warrant on 27-8-1991. Though the premises at dr. No. 16-1-270/6/5, Malakpet was searched, nothing incriminating was found; but telephone No. 552669 was found installed in the ground floor as stated by Sri Nazmuddin. Further enquiries revealed that the detenu was at Bombay and the officers intercepted him while he was about to leave Hotel Sealord. Summons were served on him on 27-8-91 under S. 108 of Customs Act for appearance before the Assistant Director, Directorate of Revenue Intelligence, Bombay. The detenu gave a statement on 27-8-1991 admitting that he had employed Sri Nazmuddin for bringing foreign marked gold from Calcutta though one Sri Hanuman who promised to supply foreign gold at a lower cost and that the detenu sent Sri Nazmuddin to Calcutta with money on 18-8-1991 to purchase foreign gold and to bring it back as per the instructions of the detenu. The detenu also admitted that he had informed Sri Hanuman over telephone No. 390765 of Calcutta about the arrival of Sri Nazmuddin and that the detenu received information over phone No. 552669 from Sri Hanuman on 20-8-1991 that eight foreign gold bars were delivered to Sri Nazmuddin and that he was to reach Hyderabad on 22-8-1991. He also admitted that he came to know about the seizure of gold on 23-8-1991 and that the detenu reached Bombay on 25-8-1991 by bus and on 27-8-1991 the officer of Directorate of Revenue Intelligence, Bombay arrested him at 9-00 p.m. and produced him before the Addl. Chief Metropolitan Magistrate Bombay on 28-8-91 under a remand report. The Magistrate initially remanded the detenu to judicial custody till 10-9-1991. On 28-8-1991 the detenu retracted from his confessional statement and requested to be heard on the question of grant of bail. Responding to this, the Magistrate advanced the period of remand to 2-9-91, while rejecting the request for grant of bail. In his letter retracting from his confessional statement, the detenu stated that he had nothing to do with Sri Khaja Nazmuddin and that his statement was not binding on the detenu. The Director of Revenue Intelligence moved an application 28-8-91 for transfer of the case file to the Special Judge for Economic Offences, Hyderabad, and obtained orders to produce the accused/detenu before the Special Judge for Economic Offences on or before 2-9-1991. It was on consideration of this material that the 1st respondent proposed to detain the petitioner for the reason that the detenu being at large on bail in the near future, would be detrimental to national economy.

(3.) Petitioner submits that her husband has nothing to do with the alleged operations of Nazmuddin. She submits that the statement of Nazmuddin in Urdu referred to one Ashfaq as the king-pin of the smuggling operations and that it was not her husband 'Ishaq'. She submits further that the Urdu statement of Nazmuddin does not contain age and other particulars of the detenu, whereas in English translation, the detaining authority showed his age as 33 years. She therefore asserts that there was little to identify the detenu as the person named by Sri Nazmuddin. She asserts that the Telephone number set up in the house does not stand in the name of Ishaq. The detaining authority, not having adverted to these important features should be held not to have applied its mind to relevant considerations or any reasonable probative material, to come to the conclusion that 'Ashfaq' mentioned by Nazmuddin was the detenu. Petitioner submits further that the 1st respondent should not have placed any reliance on the statement extracted from him under duress and it should have been found that it was a case of mistaken identity. Yet another submission of the petitioner is that the detaining authority did not properly advert to the fact that the detenu had already been arrested on 27-8-91 and was in judicial custody. It was also stated that there was no need to detain the petitioner's husband under the COFEPOSA Act, because he was already incarcerated for involvement in offence under the Custom Act. On these grounds, the petitioner urges that the detention of her husband is illegal and unconstitutional, as violative of Art. 22(5) of the Constitution of India, since the detaining authority had not applied its mind to the relevant considerations in passing the order. Petitioner also submits that the detention order, which was passed under S. 3(1)(iv) of the COFEPOSA Act was unsustainable, since the power thereunder could not be used unless the activities of engaging in transporting of prohibited material under the Act is proved. Petitioner submits further that her husband knows only Urdu and the grounds of detention translated into Urdu for communication to the detenu contained errors in material particulars and the error in the grounds of detention communicated to him result in violation of the obligation to communicate grounds for detention as contemplated in Art. 22(5) of the Constitution of India. Petitioner also submits that the detaining authority could not have adverted to the documents which were filed into Court on 28-8-91 for formulating the grounds supporting the order which was issued on 30-8-91. It is therefore asserted that the detaining authority passed the order in a mechanical manner without applying its mind. It is urged that instead of applying its mind to relevant considerations, the detaining authority only followed certain wrong proposals placed before him. It is further submitted that the condition attached to the Government order dt. 7-9-91 while allowing him to be interviewed by his Advocate Sri D. Pandurangam only in the presence and within the hearing distance of the Deputy Director, the Director of Revenue Intelligence, Madras, in effect, denied the opportunity which the detenu has under Arts. 21 and 22 of the Constitution of India and refusal of such opportunity itself vitiates his detention.