SHAHMIR ALIAS SHAHMIRIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner, in pursuance to the order dated 8-1-91 (Annexure-1), passed by the Commissioner and the Secretary to the Government, Home Department. Government of Rajasthan, Jaipur, made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1975 (in short, "COFEPOSA Act"), with a view to prevent him from indulging in selling and transportation of the smuggled goods and to preventing him from indulging in smuggling activities was apprehended on 14-4-1994 and kept in detention in the Central Jail, Jodhpur. After his arrest, the petitioner-detenu was served with the grounds of detonation. The detention of the petitioner was referred for approval to the Advisory Board as well as the State Government. The petitioner also, made representations against his detention. The representations made by the petitioner were dismissed by the State Government as well as by the Central Government. The Advisory Board also approved the detention of the petitioner for period of one year, i.e., with effect from 15-4-94 to 14-4-95. The reasons for his detention are given in the memorandum of allegations attached with the order of detention. The allegations against the petitioner, given in the memorandum, are that on 8-8-91, on the basis of the previous information received from the Central Bureau of Investigation (Border Intelligence), a bus coming from Gadra Road was detained at 8.15 a.m. and on search of one Koja Khan, five gold biscuits of ten Tolas each (total gold fifty Tolas) were recovered. It was disclosed by Koja Khan that these gold-biscuits belonged to detenu Shahmir. Koja Khan and Shahmir were arrested and produced before the Magistrate and later on the challan was field against petitioner Shahmir and Koja Khan in the Court of the Special Judicial Magistrate (Economic Offences), Rajasthan, Jaipur. The accused-petitioner was found involved in the recovery made by the Border Security Force of 52.390 kgs. of silver on 28-3-90 as well as 10.469 kgs. of silver recovered by the B.S.F. on 20-3-91.

(2.) The order of detonation as well as the detention of the petitioner has been challenged only on two ground, namely, (i) that there is no proximity between the prejudicial act alleged to have been committed by the petitioner and the subjective satisfaction of the detaining authority that it is necessary to detain him to prevent him from doing so in the future; and (ii) that there is a delay of two years three months in the execution of the order of detention, and therefore, his detonation at this point of time is punitive and not preventive. The learned Additional Advocate General appearing on behalf of the respondents, on the other hand, has submitted that the petitioner was including in the smuggling activities and there is no unexplained delay in passing the order of detention. He has further submitted that the petitioner cannot take any benefit of his own wrong as he himself was absconding since the order of detention was passed till he was arrested and the respondents took every steps to detain him but he could not be apprehended as he was absconding. For getting his arrest even the proceedings under Section 7 of the Act were taken against him and he was declared as 'absconder'.

(3.) We have considered the submissions made by the learned counsel for the parties.