HANUMAN PRASAD AGRAWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In each or the two petitions numbered above, the petitioner has challenged the order dated December 5, 1990 of the Detaining Authority (Commissioner and Secretary to the Government, Department of Home, Government of Rajasthan, Jaipur) made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA Act). The challenge is on the ground of non-application of mind of the Detaining Authority as well as the delay in making the detention order and also in execution of it in so far as Hebeas Corpus Petition No. 4733/ 1990,HanumanPrasad v. State is concerned, but the main thrust of the learned counsel for the petitioners is on the first of the two grounds of the aforesaid challenge.

(2.) First the facts, which are these Sampat Kumar, on whose behalf Habeas Corpus Petition No. 1499/1991 has been filed by his father, Mohanlal, was arrested by the SHO, Police Station, Beawar District-Ajmer in the night at about 10.30 P.M. on June 26,1990 from the Bus Stand Beawar in suspicious circumstances and on search being taken of his person 10 foreign mark gold biscuits were recovered from him, which weighed 116.5 grams each i.e. total weight of those biscuits was 1.16 kg. He was produced under Section 109, Cr. P.C. before the Sub Divisional Magistrate, who released him on bail on June 28,1990. The SHO Police Station Beawar submitted a complaint against him under Sec. 109, Cr.P.C. and some other sections. On June 27, 1990, the SHO Police Station Beawar informed the fact of recovery of 10 gold biscuits of foreign mark from Sampat Kumar to the Asstt. Collector, Customs, Ajmer. In exercise of the powers under Sec. 110 or the Customs Act, 1962, 10 gold-biscuits were taken possession of by the Inspector of Customs Department in sealed condition. It was found that each of the gold biscuits was of 24 carat of 116.5 grams. Sampat Kumar is said to have made a statement under Sec. 108 of the Customs Act and he is said to have stated that he was employed at the firm of Laxminarain Ramratan Sarraf of Hanuman Prasad, the petitioner in another case at Rs. 1,000/- p.m. Since January 15, 1990, and that Hanurnan Prasad was the partner of the said firm and it was at the instructions of Hanuman Prasad that he (Sampat Kumar) was engaged in the business of carrying gold and delivering it to Dhanraj Soni. It was also given out by Sampat Kumar in his statement under Sec. 108 of the Customs Act that earlier on three occasions under the instructions of- Hanuman Prasad he had taken gold and delivered to Dhanraj Soni and so far as 10 gold Biscuits recovered from him are concerned, after delivery of the same to Dhanraj Soni, he was to receive a sum of Rs. 3,72,000/- from Dhanraj Soni. The said statement is said to have been made voluntarily by Sampat Kumar. Thereafter, Hanuman Prasad was issued summons for appearing before the Customs Authorities and he is said to have made confession statement under Sec. 108 of the Customs Act wherein he is said to have made the statement that the had employed Sampat Kumar at Rs. 1,000/- p.m. and that he (Hanuman Prasad) handed over 10 gold biscuits of foreign mark to Sampat Kumar for being delivered the same to Dhanraj Soni in lieu of Rs. 3,72,000/-. Hanuman Prasad is also said to have admitted that 10 gold biscuits (which were shown to him) were the same which he handed over to Sampat Kumar and that he had purchased the 10 gold biscuits from. Manohar of Ghantaghar Udaipur on about four occasions and on all the above occasions they were sent to Dhanraj Soni by Sampat Kumar.

(3.) Hanuman Prasad was arrested on June 28, 1990 under Sec. 104 of the Customs Act and he alongwith Sampat Kumar is said to have been produced before the Chief Judicial Magistrate (Economic Offences) Jaipur and their applications for bail presented before him were rejected and they were sent to judicial custody.