TARIQ RAFIQ Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, who is a Pakistan national, has been detained under the Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the COFEPOSA Act' in brief), vide order dated 17 -1 -91, made by the Joint Secretary to Govt. of India, Ministry of Finance (Deptt. of Revenue), New Delhi, in the basis of the grounds of detention, Annexure P1, and confirmed vide order dated 27.3.1991, Annexure P2, passed by the Under Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. In this petition brought under Article 226 of the Constitution of India, read with Section 482, Cr.P.C. the petitioner seeks the quashing of these two orders, Annexures P1 and P2.

(2.) THE facts on the basis of which the petitioner was ordered to be detained and as gathered from grounds of detention Annexure Pl, are briefly stated as under :

(3.) ON 10 -1 -1991, the Customs Staff, L.C.S. Attari Rail recovered two black coloured bags, fitted with 4 strong magnets each on the bottom of a bogie in the train, called Lahore - Amritsar Express (Samjouta Express), which arrived from Lahore at Platform No. 2. These bags were removed and when opened found to contain 250 Gold Biscuits each with foreign markings 'SWISS BANK CORPORATION '. No one came forward to lay a claim to the recovered gold. A watch was kept. The gold was got valued from two gold dealers of Amritsar's Bullion Market and was found to be of 24 carats purity, weighing 58,300,000 gms., valued at Rs. 2, 12,79,500/ -. The recovery was kept confidential. Constant Surveillance on the train was also kept. On 11.1.91 at about 5.00 a.m., the petitioner, who originally gave his name as Ashok Kumar, was apprehended while moving in suspicious circumstances near the train. His statement under Section 108 of the Customs Act was recorded. A resume of his statement is that the petitioner was staying in India, at the address of Mohd. Yusuf, resident of Gall No. 3, Seelampur, New Delhi. He had entered India by air, ii November, 1990 and landed at Delhi. The ticket had been arranged by one Yutsuf, brother of Ashraf and a resident of Model Town, Lahore. On reaching Delhi, the petitioner stayed at Hotel Avtar, Paharganj. From there, he contacted Ashraf who gave him the information that one Manjinder Singh alias Timmy of Amritsar would contact him and he could give his name and contact Yusuf. The petitioner was so contacted by the aforesaid person who gave him Rs. 5,0001/ - and asked him to arrange for his clothes and left with a promise of meeting him. He remained in contact with Yusuf and was again contacted by Timmy on 9 -1 -1991 in the evening time. He was informed that the petitioner should reach Amritsar by the night train. Travelling by Frontier Mail, the petitioner and Timmy reached Amritsar on 10 -1 -91 and went to Kothi No.1, Lawrence Road Amritsar. On arrival at Amritsar, the petitioner was informed by Timmy that the goods had not arrived. On the same day at midnight, he received a telephonic call from Ashraf and was given the bogie numbers of the aforesaid train and directed to retrieve the same and then to hand the same over to Timmy. On the morning of 11 -1 -91, the petitioner, accompanied by one Ramu, introduced to him by Timmy, went to the Railway Yard, Amritsar, While both of them were taking down the number of the bogies, they were asked to stop. Ramu, on hearing this, ran away under the cover of fog while the petitioner was apprehended. He then further gave account of his previous activities of bringing gold to India.