RAM LUBHAYA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) RAM Lubhaya has filed this petition under Article 226 of the Constitution of India for quashing the detention order No. 1/26/92-H. III (COFEPOSA) 78 passed by the State Government on 5-6-1992 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smugling Activities Act, 1974 (for short the FOFEPOSA Act).

(2.) THE events leading to the filing of this petition in briefly stated are that on September 26, 1991 the Customs Staff at L.C.S. Attari Rail thoroughly searched the Lahore-Amritsar Samjhota Express Train which arrived from Pakistan. During the course of search the Customs Staff found two bandoliers of, cotton cloth containing some heavy material lying on the top of the battery box under bogie No. 10053. These were taken into possession and were opened in the presence of independent witnesses. The same were found to contain silver rods and silver slabs valuing at Rs. 2,74,380/-. The silver and the containers were seized under Section 110 of the Customs Act, 1962 on a reasonable belief that the same were liable to confiscation having been illegally imported from Pakistan in contravention of the provisions of Import Control Order No. 17/55. In a follow up action the Custom S Staff kept surveillance at Railway Yard Amritsar and apprehended the petitioner on the same day when he tried to retrieve the consignment from the battery box under bogie No. 10053 of Amritsar Lahore Samjhota Train. Statements of the petitioner were recorded on September 27, 1991, September 29, 1991 and September 30, 1991 under Section 108 of the Customs Act wherein he disclosed that one person whose name and address he did not know but whom he could identify, had paid him Rs. 200/- for retrieving a packet which was said to contain some Machine parts from Arnritsar Lahore Samjhota train. He also admitted having once retrieved a packet weighing about 1 Kilogram at the instance of that person on receipt of Rs. 200/-. On the basis of these statements the impugned detention order was passed with a view to prevent the petitioner from indulging in prejudicial activities in future.

(3.) THE petition was resisted by the detaining authority and the averments made in the petition were denied. It was maintained that the detention order was passed on the basis of bonafide subjective satisfaction reached at after considering the material on record with due application of mind. The petitioner had admitted that on an earlier occasion he had helped one man in retrieving a packet weighing about 1 kilogram for which he was given Rs. 200/- and on the present occasion he had gone to retrieve the smuggled goods. There had not been any delay in passing the detention order and the case was dealt with great promptitude. The petitioner was arrested on 1-9-1992 and it was felt necessary to detain him with a view to prevent him from indulging in prejudicial activities. Regarding supply of statements to the petitioner, it was contended that the statements were made by the petitioner himself before the Customs Authority while in a sound mind and he could make an effective representation.