CHAYA GHOSHAL Vs. UNION OF INDIA

JUDGEMENT

(1.) By filing the present application under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ or Habeas Corpus for release of her husband by setting aside the order of detention bearing F. No. 673/54/2002-CUS/VIII dated 20.11.2002 passed by Shri P.C. Jha, Joint Secretary to the Government of India, Ministry of Finance, under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

(2.) . The facts which are relevant for the purpose of this application of Habeas Corpus can be summarised as follows : Shri Rajen Ghoshal is the husband of the petitioner. He is now at present detained in the Presidency Jail, Alipur, Kolkata in pursuance to the above mentioned order passed under COFEPOSA Act. On the basis of an information received on 8.1.2002 by the Special Investigation Branch of Kolkata Customs, seven containers (7'x20') and one container (1'x40') were offloaded from the vessel M.V. Kpta Bintang at Vishakapattnam Port for detail examination. The information, as received, was to the effect that a few Kolkata based exporters have exported on 5.1.2002 readymade garments, ball pens and side rubber wheels, grossly misdeclaring the quantity, description and value with a ulterior motive to avail undue draw back worth crores of rupees. It was alleged that M/s. Shyam Sundar Enterprises, of which the detenu is the proprietor, exported some of those containers. It is further alleged that M/s. Shyam Sundar Enterprises and one M/s. Vidur Impex were the owners of the remaining containers. The authority concerned, after opening the consignments found substantial shortages in quantity and also it appeard that the goods were highly over invoiced and even misdeclared in respect of the description of certain items. In fact there was gross difference in the actual quantity and quality of the garments and ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in these containers at the Vishakapattnam Port. All these were done with the sole intention of getting huge amount of foreign currency. Pursuant to the seizure of the aforesaid export consignment, investigation was started by the Kolkata Customs Authorities and during investigation, one Shri Binoy Majumdar, a licensed clearing agent was interrogated on 18.4.2002 and his statement was recorded under Section 108 of the Customs Act. In his statement Shri Majumdar admitted that he knew Anil Kumar Mahensaria, Shri Rajen Ghoshal and others for the last seven months in connection with his business. He has further stated that Anil Kumar Mahensaria has got some business interest with the company as M/s. Shyam Sundar Enterprises and he was of the opinion that Shri Mahensaria, was actively involved in the activities of the said company. He has also stated that in respect of the matter of M/s. Shyam Sundar Enterprises, they usually communicated with Anil Kumar Mahensaria who used to discuss with him on many occasions regarding arrangements for exports by the said Company M/s. Shyam Sundar Enterprises. According to him, M/s. Shyam Sundar Enterprises and M/s. Vidur Impex have close links in between them and he knew that the detenu Rajen Ghoshal was an ordinary person and perhaps working only as an authorised signatory for M/s. Shyam Sundar Enterprises.

(3.) During investigation the residence of the detenu at 465, Chandal Para Road, Jotirmoyee Nagar, Kolkata - 700 063 was searched and nothing incriminating was recovered. But after the search the detenu was arrested and he was taken to the Customs House where he was interrogated at length about his Complicity in the matter. His statement was recorded under Section 108 of the Customs Act on 16.7.2002. In his statement, the detenu clearly stated that he was a person of limited means of poor back ground and he obtained an Importer Exporter Code No. (IEC) in the name of M/s. Shyam Sundar Enterprises. He has further stated that in order to earn his livelihood he used to lend his name and the Importer Exporter Code No. to interested parties who did not have IEC of their own. In the process he used to get commission of about 0.5 per cent of the Invoice value. He has claimed that besides lending his IEC Code he had no knowledge about the goods which were supposed to be exported by the Company M/s. Shyam Sundar Enterprises. He has further claimed that Anil Kumar Mahensaria alias "Laddoo Babu" obtained some signed blank letter heads from him. He has categorically stated that Mahensaria is the actual exporter of the goods in question. He has also stated that being misguided by Mahensaria he had to sign on two writ petitions for filing in the High Court at Kolkata and the cost of such litigation was borne by Shri Mahensaria. On the next day of the recording of the statement of Shri Ghoshal, he was produced before the Chief Matropolitan Magistrate, Kolkata who from time to time remanded him to J/C. During his detention in the jail, his second statement was recorded by the Custom Officials wherein he also confirmed the statement as made by him earlier. Ultimately the' detenu Shri Rajen Ghoshal was released on bail on 11th September, 2002. But on the basis of the above mentioned allegations the respondents issued the order of detention under COFEPOSA on 20th November, 2002 against the detenu. Though the said order of detention was passed on 20.11.2002 no attempt was made to execute the said order of detention immediately. However, on 17.12.2002 Police along with the Customs Officials came to his residential house and arrested the detenu. The detenu was taken to the Presidency Jail, Alipur where he was served with an order of detention under COFEPOSA. The documents which were relied upon, were served on the detenu on the same day in the Presidency Jail. In the order of detention, it was mentioned that the said order was passed with a view to preventing the detenu from smuggling goods in future. In the grounds of detention it was stated that the detenu had a right to make representation to the Detaining Authority, to the Central Government, as well as to the Advisory Board. Accordingly the detenu submitted representations to the Chairman COFEPOSA Advisory Board on 22.1.2003, to the Central Government on 14.2.2003 and to the Detaining Authority on 15.2.2003 praying for revocation of the order and for his release from the jail. On 19th February, 2003 the case of the detenu was heard by the members of the Advisory Board, New Delhi and it recommended the continued detention of the detenu in jail in pursuance of the order of detention based under COFEPOSA. According to the detenu his representation dated 14.2.2003 and 15.2.2003 which were submitted to the Central Government and to the Detaining Authority were also rejected by the said Authorities.