ASHA DEVI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This Habeas Corpus Petition has been filed by Smt. Asha Devi, the petitioner, wherein she has challenged the legality of the detention of her husband, Kishori Sharan Garg, the detenu, in pursuance of the detention order dated January 28, 1992, passed by the Commissioner and Secretary to the Government, Home Department (Gr. 9), Jaipur, under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity, TCOFEPOSA Act). The detention order has been served upon the detenu on May 1, 1992.

(2.) The detention order seems to have arisen out of the alleged two incidents. On May 30, 1989, Maruti Gypsy - RNX 1917 was intercepted near Achrol on Delhi - Jaipur national highway. It was registered in the name of M/s Jamna Lal Lashkari Sarraf & Co., Ramganj Bazar, Jaipur of which the detenu is one of the partners, and was being driven by Badri Narain and ridden by Sarwanlal Sharma; and both of them upon interrogation allegedly admitted that they were employees of the detenus firm. Upon search of the vehicle, Indian currency notes of different denominations worth Rs. twelve lacs only were found therein, a hide-box manufactured for the purpose. Presuming the currency notes as sale proceeds of smuggled gold and being liable to confiscation under section 121 of the Customs Act, both, the vehicle so also the currency were seized by the customs authorities. The detenu apprehending his arrest and upon his application for grant of pre-arrest bail was allowed anticipatory bail by the Sessions Judge, Jaipur City Jaipur on June 5, 1989. Thereupon the detenu himself appeared before the customs authorities and got his statement recorded under section 108 of the Customs Act. According to the detenu in his statement (ibid) the currency was not the sale proceeds of smuggled gold but, was the money of Sanjay Gupta alias Sanju Gupta r/o 262, Chhatta Pratap Singh Kinari Bazar, Delhi who had sent it to Radha Govind Lashkari younger brother of the detenu for purchase of a constructed house in Jaipur through Gopal Dhamani a local broker. Statement of Sanjay Gupta who verified the version of the detenu, was recorded under section 108 of the Customs Act on August 11, 1989. Statement of Badri (driver) and Sarwanlal was also recorded to which they retracted immediately upon their release on June 3, 1989 by sending telegrams (Annexures 1 & 2) and stating in the telegrams that the currency was of Sanjay Gupta and did not constitute sale proceeds of any gold. According to the petitioner, both these persons had also written detailed letters under registered cover vide Annexures 3 & 4 on June 4, 1989 to Collector Customs reiterating their version given out in the telegrams as to the belonging of the currency, and denying every allegation entailing alleged smuggling of gold. The petitioner asserts, San jay Gupta in his statement before the customs authorities explained the source of earning Rs. 12 lacs and according to him, in gambling he used to place high bets on cricket matches and it was his undisclosed income on which he was prepared to pay income-tax. The house of the detenu and Sanjay Gupta was also searched but nothing incriminating was found. And, undisputedly, not even an ounce of smuggled gold was recovered from any person involved in the search of May 30, 1989. However, show cause notice dated November 24, 1989 under section 124 of the Customs Act was issued to the detenu, his employees, and Sanjay Gupta, and to which, all sent their reply denying allegation of smuggling. Thereupon no criminal prosecution has so far been allegedly launched.

(3.) Another incident relates to interrogation or one. Han Narain formerly an employee or the detenus firm who had left his services in April, 1991 and from whose possession, the customs authorities had seized on July 2, 1991 10 pieces of gold weighing 1166.650 gms. Han Narain in his statement has allegedly given out that the recovered told was smuggled and his employer (the detenu), was engaged in smuggling gold. On the very days business premises of the detenus firm and his house were searched but, again, nothing incriminating was allegedly found there, except cash worth Rs. 80,100/- with its corresponding entries in the cash book. Again, apprehending his arrest and upon his application for pre-arrest bail, the detenu was granted anticipatory bail by the Sessions Judge, Jaipur City on July 5, 1991 and before it, on July 3, 1991, Han Narain was also released on bail by Special Judge (Economic offences cases) Jaipur. Han Narain himself wrote letter (Annexure 36 to the detention order) retracting all allegations of the smuggled gold but, admitting the seizure of the gold from his possession, asserted it to be his personal property and not smuggled gold. Han Narain had also given his affidavit on July 3, 1991 (Annexure 5 to the present petition at hand) denying on oath his involvement in squiggling etc. According to the petitioner and detenu, show cause notice under section 124 of the Customs Act was also issued but; no criminal prosecution has been initiated as yet.