RAJESH KUMAR Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) By an order dated 18-12-1985 made in G.O Rt. No. 4968 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 for short 'COFEPOSA' the Government of Andhra Pradesh has rodered the detention of Rajesh Kumar @ Mahesh son of Chandmal Jain under Section 3 (1) (iii) & (iv) of the Act for engaging in transporting, keeping and concealing of smuggled goods and also dealing in the same. The Advisory Board heard the detenu on 24-4-1986 and opined that there was sufficient cause for the detention. Thereafter the Government issued an order on 2-5-1986 confirming the detention and directing that the detenu be detained for a period of 12 months from 5-3-1986, The order of detention was executed on 5-3-1986. The wife of the detenue has filed this application under Article 226 of the Constitution for a writ of Habeas Corpus seeking release of the detenu,

(2.) The detenu is a business man dealing in synthetic stones in Madras. On 11-5-1985 while he was returning by No. 3 Howraw-Madras Mail from Howraw to Madras, at the Waltair Railway Station he was intercepted by the officers of the Directorate of Revenue Intelligence, Madras at about 12-45 hours on the reasonable belief that he was carrying smuggled gold in contravention of the Gold (Control) Act. 1968. His bag was searched, but nothing incriminating was found. However, a search of his person disclosed that in the shoes he was wearing he concealed 9 bars of primary gold all with foreign marking and of 24 carat purity weighing 2245.650 grams, the 'estimated value of which was Rs. 4,80,569/-. The purity of the gold and the weight was certified by one M. Appa Rao a certified goldsmith who was called to the place of the search viz , the Office room of the Deputy Station Superintendent, Waltair ailway Station. The officers seized the railway journey ticket, the reservation ticket and the brown shoes in which were concealed the gold in question. The details of the search were incorporated in a Mahazar prepared at the time of the search. A statement given by the detenu under Sec. 108 of the Customs Act, 1962 was recorded by thr officisls, and in that statement the detend admitted thai he had purchased the gold in Calcutta through a broker Chagganlal and was bringing to Madras for sale. It was also in his statement that Deepak a resident of Madras and a former collegemate of his wanted that if he were to bring the smuggled goods from Calcutta the same should be sold through Deepak. On the same day the detenu was arrested under Sec. 104 of the Customs Act for an offence punishable under Sec. 135 of the Customs Act and was produced before the First Class Judicial Magistrate for Railways, Visakhapatnam on 12-5-85 and 13-5-85. The Magistrate directed that he be kept in judicial custody and later he was released on 3-6-85 on conditional bail in compliance with an order made by the Special Judge for Economic Offences, Hyderabad. The samples from the 9 seized gold bars were sent to the Mint, Govt. of India, Bombay for analysis and report as regards their origin. The report sent by the Mint disclosed that the gold in question was of foreign origin and no one in India manufactures gold of such purity. in brief these were the grounds communicated to the detenu along with the order of detention d/18-12-85. Copies of the documents based on which the order of detention was made were also supplied to the detenu. The representation made by the detenu against the order of detention was rejected by the Government on 22-4-86. The Advisory Board constituted under Section 8 of the Act, on a consideration of the entire material on record opined that there was sufficient cause for the detention. Aggrieved by that the present application was made, as already stated by the wife of the detenu assailing the legality of the order of detention.

(3.) On behalf of the Government a counter was filed taking the stand that the contentions raised in the writ petition were devoid of merit, the impugned order was passed stuictly in confirmity with the relevant provisions of the law and, therefore, the writ petition should be dismissed.