ASHOK KUMAR LAHA Vs. MAHENDRA PRASAD

JUDGEMENT

(1.) This case arises out of an application under Article 226 of the Constitution of India against the detention Order No. F. No. 673/39/93-Cast VIII dated 26/04/1993 by the respondent No. 1, Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Rev enue directing the detention of Shri Ashok Kumar Laha under Section 3(1) of the COFEPOSA Act, 1974.

(2.) The detenu who is a citizen of India is a Civil Engineer employed in Calcutta Metropoli tan Development Authority as an Assistant Engi neer. On 21/01/1993, a raid was conducted by the Customs Officers at the shop of Messrs. Srish Chandra Dey and Messrs. Binayendra Nath Sil at No. 3, Nalini Seth Road, Calcutta of which the detenu's brother, Uday Shankar Laha is a partner. The detenu happened to the present at the said shop at the time of search. During the course of the search an iron box was recovered from inside the garbage piled in the room beside the bathroom on the ground floor. The said box was opened in presence of witnesses and 8 pcs. of gold biscuits of 10 tola each with foreign markings and 14 small cut pcs. of gold were recovered from inside the said box. Out of the said 8 pcs. marked gold biscuits, 7 pcs. bore the marking "Union Bank of Switzerland - 10 tolas - 999.0" and the remaining one pc. biscuit bore the markings "Suisse - 10 tolas - 999.0". The 8 pcs. of gold biscuits collectively weighed 933.2 grams and the 14 cut pcs. of gold collectively weighed 26 grams. Thus gold collectively weighing about 959.2 grams valued at Rs. 3,82,000/- was recov ered from the aforesaid iron box. The same was seized as no valid documents in support of legal acquisition or possession or importation of the gold of foreign origin could be produced at that time. Other articles including the iron box and Indian Currency amounting to Rs. 2,79,915/- were also seized by the Customs Officers. Thereafter, the Customs Officers asked all the persons who were present at the shop at the relevant time to accompany them to the customs House. On reaching the Customs House, the detenu and others were confined in a room where others were mercilessly beaten and told that unless they wrote down statements as per the dictation of the Offic ers they would not be allowed to go home. The detenu was practically coerced to write a statement as per dictation of the Enforcement Officer. The detenu has nothing to do with the said busi ness and his presence at the relevant time at the shop was only by chance. On the next day, the detenu along with others were arrested and pro duced before the learned Metropolitan Magis trate, Calcutta. A joint retraction statement was filed by the detenu along with others arrested. A copy of the said statement is annexed to the writ petition and marked with the letter 'B'. The detenu had nothing to do with the seized gold biscuits and was not aware of anything pertaining to the said business. A prayer for bail was made on behalf of the accused persons and the learned CMM, Calcutta was pleased to relase the accused per sons on bail. A copy of the bail order dated 22/01/1993 has been annexed with the writ petition and marked with the letter 'C', On 11/05/1993 the detenu went to the Customs House on his regular monthly visit, when he was served with an order of detention passed under COFEPOSA dated 26/04/1993 and there after he was taken to the presidency Jail, Alipore. In jail the detenu was served with the grounds of detention dated 26/04/1993 in which it was recited that the detaining authority was satisfied that the detenu knowingly engaged himself in dealing with smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. A copy of the said ground of detention has been annexed with the writ petition and marked with the letter "D". Along with grounds of detention the detenu was also served with 52 documents which were apparently con sidered by the detaining authority. Copies of the said documents are annexed with the writ petition and marked with the letter "E".

(3.) On 19/05/1993, a representation was filed before the detaining authority by the detenu through his Advocate. In the said representation it was pointed out that the detenu was not a partner of Messers. S. C. Dey and B. N. Sil from where gold biscuits were allegedly seized. A copy of the said representation is annexed with the writ peti tion and marked with the letter "F". The said representation was duly received by the detaining authority but the said representation was not con sidered by the said authority within a reasonable time. On 9/07/1993, the detenu filed a repre sentation before the Central Advisory Board through his Advocate. A copy of the said repre sentation together with its Annexures has been annexed with the writ petition and marked with the letter "G". There was a purported personal hearing before the Advisory Board on 3rd of August, 1993, they gave their opinion that there was sufficient cause for detention of the detenu under COFEPOSA. According to the detenu, the detention order was the product of total non-application of mind and there was no material or evidence in the entire grounds of detention of any "dealing in smuggled goods." There was no rea sonable or proximate connection between the incident and the order of detention of the detenu. The time gap between the order of detention dated 26/04/1993 and the actual detention on 11/05/1993 clearly shows that there was no neces sity for passing the impugned order of detention. The detaining authority acted without application of mind. Item No. 19 of the list of documents described the retraction statement as a bail peti tion and this shows that there was total non -application of mind. Moreover, the grounds of detention clearly revealed that the detaining auth ority was proceeding on the basis that the detenu. was a partner of Messers. S. C. Dey and B. N. Sil which had nothing to do with the detenu. The mode and manner of the acquisition of gold bis cuits of the foreign origin. by the business of Messers. S. C. Dey and B. N. Sil was the concern of its partners who were running the said business and an explanation was sought to be given about the lawful acquisition of the said gold of foreign origin by the partners concerned. The detenu had no knowledge about the same and he merely repeated the said explanation. The detaining auth ority did not supply a copy of the bail application dated 22/01/1993 of which the detaining authority made a mention at page 10 of the grounds of detention. Moreover the grounds of detention have not been supplied in full because page 11 of the grounds of detention is incomplete. The detenu states that in the grounds of detention the detain ing authority has relied on the so called voluntary statements of Shri Gurudas Seal, Shri Manoj Kumar Seal, Shri Chandan Saha and Shri Pradip Das, apart from the one procured from the detenu but each of the said statements were obtained under duress and each of the persons mentioned above had already retracted the same at the first available opportunity. The detaining authority was aware that such statements were retracted but it dismissed those retractions by merely ascertaining that those retractions were afterthoughts. No reason has been given by the detaining authority why it came to the conclusion that those retrac tions were afterthoughts. According to the detenu the detention order is illegal and the grounds of detention have no reasonable nexus with the ob ject of detention. The impugned order of deten tion and his detention in jail pursuant thereto is illegal, wrongful, arbitrary and in excess of juris diction and violative of the petitioner's funda mental rights guaranteed under the Constitution of India.