MOHINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Mohinder Singh, petitioner, who is presently confined to Central Jail, Patiala, by means of this writ petition under Article 226 of the Constitution of India, seeks quashing of detention order No. 1/11/90-3H111 (COFEPOSA) /426 dated March 15, 1991 (Annexure P1) and grounds of detention dated March 15, 1991 (Annexure P1/A).

(2.) The facts leading to the detention may be gathered from grounds of detention Annexure P1/A. The 45th Be of BSF Wan received an information that gold was being smuggled by the petitioner by concealing in his tractor. A special naka was, thus, laid around his fields by the BSF. On August 1, 1990 at about 1740 hours, the petitioner accompanied by another person who was driving the tractor to which a trolly was also accused left for his fields towards village Wan. A close watch was kept on the movement of their tractor. At 1800 hours, the tractor crossed the bridge on the Ditchcum-Bundh and immediately the BSF slopped the tractor and the petitioner and his companion were asked 10 get down from the tractor. The panchayat members were sent for and in the presence of independent witnesses and the petitioner, the tractor was searched. The BSF officials observed that some of the nuts fixed to the plate of the gear box on its left side were loose which gave an indication and that portion was opened. On search, some packets were found concealed therein. These packets were taken out and the details of the packets were as under: i) 18 packets of small size wrapped in plastic of hard material. ii) 4 packets of medium size wrapped in plastic of hard material. iii) I packets of medium size wrapped in plastic of hard material. These packets on being opened were found to contain 300 gold biscuits which may be detailed as follows: - i) 127 gold biscuits bearing foreign markings Credit Suisse 9990. 10 tolas, Essayer Fonder. ii) 42 gold biscuits bearing foreign markings, UBS/UBG 10 tolas 9990 Union Bank of Switzerland Mettey Assayeu. iii) 115 gold biscuits bearing foreign markings, Johnson Matthey London 9990. 10 tolas. iv) 15 gold biscuits bearing foreign markings, Swiss Bank Corporation 10 tolas 9990 Essayeur FONDEUR. v) I gold biscuit bearing foreign marking, Suisse 10 tolas 9990 Essayeur Fondeur. All these gold biscuits were carrying foreign markings and these along the Ford tractor-3610 and the trolly were handed-over to the Customs. Preventive Staff, Bhikhi wind for taking further action. The gold biscuits were got tested and were found to be of 24 carats purity weighing 34,980.00 grams, valued at Rs. 1,15,43,400.00. The value of the Ford tractor and the trolly was assessed at Rs. 1,20,000.00. All these articles were taken into possession by the Customs Preventive Staff on the reasonable belief that the same had been smuggled into India from a foreign country in contravention of the provisions of Import Control Order No. 17/55 dated December 7, 1955, as amended, read the section 11 of the Customs Act, 1962 and under section 13 (1) of the Foreign Exchange Regulation Act, 1973, as these articles were liable to confiscation under section 11 of the Customs Act.

(3.) On August 5, 1990, the petitioner tendered before the Superintendent Customs Prevention. His statement, in which he stated inter-alia that his fields are situated in the proximity of the Indo Pak border which is very close to actual border line where he had installed a tube well and erected a room. He had further disclosed that on August 1, 1990, at about 1000 hours, he along the his nephew Darbara Singh son of Sardul Singh of his village left for his fields on his tractor-trolly carrying fertilizer bags. The tractor was driven by his nephew Darbara Singh, who had six fertilizer bags in the trolly. The tractor-trolly was first taken to his nephewTs fields where his fertilizer bags were unloaded, thereafter it was brought to his fields, where he directed his nephew Darbara Singh to park the tractor-trolly at a certain place. Darbara Singh left to his fields. The petitioners workers started. sprinkling the fertilizer in the fields. He saw a branch of Gulabasi (a shrub) lying at about half acre away from his tubewell towards the border. He made out that Pakistani carriers had berried the contraband in the previous night at the fixed place. The gold was buried at about 2 yards away from twig/branch of Gulabasi in his paddy- fields. He dugged out the buried gold and hid it beside his Tractor and put all the gold packets into the gear box which was full of mobile oil. He was free of his work at 5.00 P.M. When his nephew Darbara Singh was returning back home, he called him and asked him to drive the tractor-trolly back home. When he along the his nephew reached the DCB riding on the tractor-trolly, he was stopped by the BSF naka party. The BSF enquired from him whether the tractor contained any contraband goods. His nephew replied in the negative. On conducting the search of the Tractor in his, his nephew and panchayat members presence, who were called by the BSF from village Wan, 300 gold biscuits of foreign markings were recovered. He had further disclosed that smuggling was his profession ever since he came of age. He had further stated that on August 1, 1990, before the recovery, a close associate of Puran Singh alias Pura of Malluwal, whose name has never been told to him, came to him and directed him to keep vigil at his tube well, because the gold would be buried during the next 5-6 days on any night by Pakistani carriers. He further directed the petitioner to hand-over that gold after retrieving it from his fields to Gurdip Singh of Khabbe Rajputan or his associate cousin. On August 1, 1990, Gurdip Singhs above said cousin himself came to his house and informed him that the gold had been buried the previous night by Pakistani carriers and that he must keep it in his house after retrieving from his fields on the same day, and to it he would collect the said gold from him the next day i.e. August 2, 1990.