MOHAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner initially had challenged his arrest and remand by the order of the Chief Judicial Magistrate, Patna and the direction to send him to Delhi for production before the Delhi Administration, but the petitioner now challenges his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter to be referred as COFEPOSA).

(2.) In order to decide the controversy in this case it will be necessary to refer to certain facts. The petitioner arrived at Patna Airport from Kathmandu by Indian Air Lines flight No. IC 246 on 23-6-1984 and he was apprehended by the Superintendent of Customs, Patna Airport, who is respondent 3 in this case. Then he learnt that he was wanted in connection with a detention order issued on 4-1-1980 by the Delhi Administration. The petitioner was produced before the Chief Judicial Magistrate, Patna, and application was filed for remanding the petitioner for interrogation, a copy of the petition has been filed as Annexure-1. In pursuance of that application the Chief Judicial Magistrate, Patna, ordered the petitioner to be detained at Sachivalaya Police Station by his order dt. 24-6-1984, a copy of the same has been filed as Annexure 2. The learned Magistrate had also directed that the Senior Superintendent of Police, Patna, will make necessary arrangements for taking the petitioner to Delhi to be produced before the Collector of Customs, Central Revenue Building, New Delhi. The petitioner moved this Court and by order dt. 27-6-1984 an order was passed by this Court that the petitioner shall not be taken away outside the jurisdiction of this Court and the application was kept pending. A counter-affidavit was filed by the Customs Department in which it was stated that the petitioner was involved in smuggling of watches worth rupees three lacs and fifty thousand and he was the brain behind the same for bringing them from Hong Kong and other foreign places. It has further been stated that a case was registered under the Customs Act and the petitioner was directed to appear before the authorities but he evaded and a notice, technically known as Red Alert Notice, was issued on 26-10-1979 to all concerned that he should be arrested where-ever he is found, a copy of the notice has been filed and marked as Annexure-A. Similar notification was issued in the Gazette directing him to appear under S. 7(1)(b) of the COFEPOSA Act which is Annexure-B. In spite of all these the petitioner did not appear and a fresh Red Alert Notice was issued which is Annexure-C. The relevant portion may be usefully quoted :-

(3.) It is further stated that the petitioner alighted from Kathmandu and came to the counter of the customs department and he disclosed his name and the Officer on duty grew suspicious and on checking various kinds of foreign goods worth Rs. 1390/- along international driving licence, ticket etc. were recovered and inventory was prepared. It is further stated that the petitioner made voluntary statement accepting his involvement in the smuggling. Copies of the statements have been filed and marked as Annexures-D and D1. In the supplementary affidavit filed on behalf of the Department it has further been stated that the petitioner had violated the provisions of the Customs Act and he was liable for prosecution under S. 104 of the Act The prayer made before the Chief Judicial Magistrate, Patna, for sending the petitioner to Delhi in pursuance of the Red Alert Notice has been justified. It has been further stated in the forwarding note that due to inadvertence it was left out that the petitioner has also violated the provisions of the Customs Act and another petition was filed, copies thereof have been filed and marked as Annexures-E and E1. The petitioner was served with a detention order passed by the Delhi Administration on 30-6-1984, and this fact has been admitted in the supplementary affidavit filed on behalf of the petitioner and Annexure-3 is the order of detention and along with the same the grounds and the list of documents were also supplied to him. In the counter-affidavit it has been denied that the petitioner was connected with the smuggling : rather he had been staying in Phillipine since 1978 and the confessional statements as contained in Annexures-D and D1 were made, under threat and coercion. Therefore, a prayer was made to quash the detention order and para 10 runs as follows :