KAMALA SARKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application the petitioner has prayed for relese of her husband who has been detained in terms of an order dated 22-3-2000 issued by the Deputy Secretary to the Government of Bihar which reads thus : No. 202/C. Whereas, the State Government is satisfied that with a view to preventing Shri Prasant Kumar Sarkar alias Prashanto Sarkar S/o Hemento Sarkar Pradhan Nagar near North Bengal, Nursing Home Siliguri present address Shankar Medical Hall Pradhan Nagar Siliguri (W.B.) Pin Code 734 403 from engaging in smuggling of Foreign Goods it is necessary to make an order that he be detained; Now, therefore, in exercise of the powers conferred by Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) State Government hereby direct that the said Shri Prasanto Kumar Sarkar be detained; Shri Prasanto Kumar Sarkar shall be detained in Special Central Jail, Bhagalpur and shall be kept in Class III.

(2.) The principal contentions of Mr. Ghosh, learned senior counsel, appearing on behalf of the petitioner in support of the application are two fold, although several grounds have been raised in this writ application.

(3.) The learned counsel firstly submits that having regard to the order of detention, the ground and the stand taken by the concerned respondents in their affidavit-in-op-position, it would appear that separate and distinct stand having been raised therein the same must be held to be suffering from total non-application of mind on their part. According to the learned counsel, whereas Sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act had been referred to in the order of detention, it would appear from the ground served on the detenu on 16-3-2000 that therein it has been stated : From the above it is evident that Prashanto Sarkar alias Prashanto Kumar Sarkar alias P.K. is the kingpin of smuggling activities in North Bengal and Bihar and is an habitual offender under the Act. As such the Govt. has decided to detain Sri Prashanto Sarkar alias Prashanto. Kumar Sarkar alias P.K. R/o. Pradhannagar, North Bengal Nursing Home Siliguri present Address Shankar Medical Hall Pradhan Nagar Siliguri (W.B.) P.C. 734403 under the COFEPOSA to prevent him from including in activities which are prejudicial to the public interest. Yet again it has been stated in the affida-vit-in-opposition of the concerned respondents as :- The case of petitioner, Detenu and another person namely, Abulias Ahmad, was considered and the Committee considered it necessary to detain the instant petitioner/Detenu and the said Abulias Ahmad under Section 3(1) of the COFEPOSA Act, 1974 with a view to prevent them from further indulging in smuggling activities which are prejudicial to the conservation and augmentation of foreign exchange. The Committee was in the knowledge of the fact that the date of incident on which detention was to be considered, was on 27-2-99.