PANDHEE KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Habeas Corpus Petition has been filed by the petitioner, who is brother of detenu - Saeedad Khan, who has been detained by respondent No. 1 while exercising the powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act, 1974' ). It has been prayed that the order dated August 3,1990 (Annex. 5) issued by respondent No. 1 be quashed and detenu be set at liberty.

(2.) IT is submitted by Mr. N. A. Naqvi, learned counsel, that the Customs Authorities are said to have information that the smuggled gold will reach at Banner in between March 20 and March 23, 1990. At about 9. 30 p. m. , a jeep was coming towards Gadra Road, which was intercepted by the Customs Authorities. In the aforesaid jeep, detenu and Salu Meghwal were sitting while Gangaram was driving the jeep. The Customs Authorities inspected the jeep and found a canvass bag, lying in the back side of the jeep, where Salu Meghwal was sitting. When enquired about the said canvass bag, he looked towards the detenu and did not reply. The Customs Authorities enquired from the detenu and driver Gangaram also, but they did not give any satisfactory reply. Therefore, the Customs Authorities became suspicious and the jeep along with the three persons, was taken to the Custom Officer at Barmer, for investigation. On search, 150 Gold Biscuits of Foreign Marks were recovered from the said bag. The Gold Biscuits were got examined by the gold-Smyth, who confirmed that the biscuits are of gold. None of the occupants of the Jeep could produce the import licence or other necessary documents, regarding the gold biscuits to satisfy the Customs Authorities. Therefore, the Customs Authorities had reason to believe that the gold biscuits were brought in the territory of India in violation of the provisions of law. Hence, the gold biscuits were seized and all the three occupants of the jeep were arrested on March, 21, 1990.

(3.) WE have heard both the parties and also gone through the documents on records. One of the ground raised by the petitioner is that the detenu was held in custody, therefore, question of passing any order under the provisions of section 3 (1) of the COFEPOSA Act did not arise. This order is passed with a view to prevent a person from indulging in any smuggling activities etc. in future. It was, therefore, urged that while passing detention order, it has been not disclosed whether there was any possibility of petitioner being released on bail or otherwise from jail to show that it was necessary to pass the order of detention under the provisions of Section 3 (1) of the COFEPOSA Act. Thus, there was no application of mind on this aspect of the matter. It was urged by the learned Additional Advocate-General that a bare perusal of the detention order will show that all necessary facts have been mentioned & considered and that the order of detention was passed after the respondent No. 1 was fully satisfied in this respect. This shows that such an order could be passed only after application of mind.