ARVIND SHERGILL Vs. UOI

JUDGEMENT

(1.) Mrs. Arvind Shergill wife of Harinder Pal Singh Shergill has filed the present petition under Article 226 of the Constitution of India praying for the issuance of a writ or any other order quashing the order of detention bearing No. F.No. 673/70/98-CUS. VIII, dated 17.11.1998 passed by respondent No. 2, i.e. Joint Secretary COFEPOSA, under Section 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act against her husband. The order so passed, according to the petitioner, is illegal, unconstitutional and based on extraneous, irrelevant and vague grounds.

(2.) According to the petitioner, her husband is a Senior Captain of Air India and has unblemished service record of 35 years, out of which 21 years he has spent in the active service of Indian Air Force and the rest of the service he has given to Air India. As per the terms of employment of her husband, he is paid some allowances regularly in foreign currency which is duly accounted for in his tax return and tax paid at source. On 3.8.1998, he was scheduled to operate Air India flight Mumbai-Trivandrum-Doha-Bahrain and due to an enquiry he was left with no time to deposit the said currency into his bank locker and the same was brought to the Airport to deposit in his Airport Locker before leaving for the flight. The customs officials took this currency from his private car parked outside the Airport before he could shift it to the locker in the Airport premises. The customs officials cooked up a false case that he was smuggling it out of country. The husband of the petitioner was detained by the custom officials, taken into custody on 4.4.1998, beaten and some false statement was recorded implicating him in the smuggling of the alleged currency. The petitioner's husband was produced in the Court of Chief Metropolitan Magistrate, Mumbai for remand, where he filed a complaint before the Chief Metropolitan Magistrate retracting from the alleged confessional statement. He was released on bail on 14.8.1998. After his release the Customs Authorities submitted an application before Additional Sessions Judge, Greater Mumbai seeking cancellation of bail of the husband of the petitioner and the said application was dismissed on 17.11.1998. On 10.9.1998, the husband of the petitioner made representation to the Revenue Secretary, Ministry of Finance, New Delhi in which he stoutly denied the contents of the Panchnama prepared by the Customs Authorities and further categorically denied the happenings of the events dated 3/4.8.1998. He also highlighted the highhandedness by stating that a false case has been planted against him. It was the stand of the husband of the petitioner that his statement under Section 108 of the Customs Act has been recorded under duress. He made another representation to respondent No. 3 on 2.9.1998 in which he submitted that he was in possession of vital evidence to justify that the foreign currency which was seized was neither found from his person nor from his baggage but the same was picked up from the motor vehicle parked outside the departure hall. The husband of the petitioner also highlighted that the major portion of the foreign currency alleged to have been recovered was acquired over a period of time from his employer i.e. Air India under the service rules with tax paid at source and the remaining foreign currency was left with him by his close relatives and his son for safe custody during their visit to India.

(3.) On 17.11.1998 when the application of the Customs Authorities for cancellation of bail was declined by the Court of Additional Sessions Judge, Greater Mumbai, respondent No. 2 issued an order bearing No. F.No. 673/70/98/CUS.VIII directing the detention of the husband of the petitioner in the custody of Central Prison, Nasik while exercising powers under section 3(i) of the COFEPOSA. Immediately on coming to know of the detention order, the husband of the petitioner moved a comprehensive representation to the Union Finance Minister seeking the revocation of the order. The husband of the petitioner also received a show cause notice dated 22/27.1.1999 issued by the Addl. Commissioner of Customs Sahar Airport, Mumabi under Section 124 of the Customs Act whereby he was called upon to show cause as to why the foreign currency i.e. 66217 dollars equivalent to Indian Rs. 27,54,627/- should not be confiscated under the Customs Act and Foreign Exchange Regulation Act. An interim reply was sent to respondent No. 3 through an Advocate and in the said reply it was categorically stated that the seized currency is the ownership of the husband of the petitioner. It is further stated that the adjudication proceedings are at an advanced stage and it is yet to be determined as to whether the husband of the petitioner was or was not in legal possession of the said currency.