ABDUL KADER HAMDAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This Habeas Corpus application under Article 226 of the Constitution of India bas been filed by one Abdul Kader Hamdan, brother of the deform Omar Harridan, who has been detained at Dum Dum Central Jail pursuant to an order of detention dated 23rd February, 1994 being P. No. 673/19/94 Cus-VIII, Government of India, Ministry of Finance, Department of Revenue, issued by Shri Mahendra Prasad, Joint Secretary to the Government of India under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, hereinafter referred to for the sake of brevity as COFEPOSA.

(2.) It is the contention of the petitioner that his brother Omar Hamdan, a Syrian national was intercepted by Customs Officials at Calcutta Airport when he was departing for Amman on 10th February, 1994. His baggage was searched which resulted in the recovery of 2393 pieces of snake skins of assorted sizes valued approximately at Rs. 11,96,500/-. Snake skins found were processed and tanned. These snake skins were seized on a reasonable belief that they were attempted to be smuggled out of India and are liable to confiscation under the provisions of Customs Act, 1962 read with Export and Import Policy 1992-97 and the Wild Life Preservation Act. The seizure list was prepared by Customs officers and grounds of arrest under section 104 of the Customs Act, 1962 were also prepared. Further a summons under section 108 Customs Act was served on him pursuant to which he made a confessional statement. The grounds on which he was arrested were prepared by one Sourav Chakraborty, Preventive Officer, Intelligence Unit, Calcutta Airport. On the following date that is on 11th February, 1994 Omar Hamdan was produced before the learned Chief Judicial Magistrate, Barasat. No bail application was filed or moved on his behalf and the learned Chief Judicial Magistrate, Barasat remanded him to jail custody till 24th February, 1994. On 16th February, 1994 a bail application was however moved after notice to the Customs authorities before the learned Chief Judicial Magistrate at Barasat who fixed the date of hearing on 18th February. 1994. On 18th February, 1994 the learned Chief Judicial Magistrate, Barasat rejected the bail application of Omar Hamdan. On 21st February, 1994 a bail application was moved before this Hon'ble Court and the same was rejected.

(3.) It is contended by the petitioner that despite specific directions, the Customs authorities failed to produce Omar Harridan before the learned Chief Judicial Magistrate, Barasat on 24-2-94. On 26th February, 1994 when a bail application was moved before the High Court with notice upon the Customs authorities at the residence of a learned fudge, the learned Advocate for the Customs authorities submitted that an order of detention under COFEPOSA was served on him on 25-2-94 at about 5-45 p.m. and accordingly the bail application was contended as misconceived. It was further submitted that necessary permission from the learned Chief Judicial Magistrate had been obtained for such service of the detention order. The application for bail was adjourned till February 27, 1994. On 29th February, 1994 the bail application was directed to be placed before the regular Division Bench of this Hon'ble Court and it was subsequently rejected. On March 8, 1994 a petition dated 4-3-94 was moved before the learned Chief Judicial Magistrate on behalf of the prosecution giving out various steps taken by the prosecution for service of the detention order on the detenu and there was a prayer inter alia made that the said petition should be kept on record for future reference and the prayer on behalf of the prosecution was so granted.