Suresh Chand Verma vs Union Of India And Ors.
1993 Latest Caselaw 224 Del

JUDGMENT

Sat Pal, J.

(1) The petitioner in this case was detained in terms of the order dated 2nd September, 1992 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi in exercise of the powers conferred by section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'). Without waiting for the grounds of detention being served upon him, the petitioner filed the present petition challenging the order of detention. Along with the writ petition the petitioner has annexed a copy of the grounds of detention of the same date in respect of the other co-detenu, namely, Mohideen Khan. It has been alleged in the writ petition that the grounds of detention in respect of the petitioner are exactly the same as those of Mohideen Khan.

(2) Briefly stated the facts of the case are that on 25th April, 1992 Mohideen Khan arrived at Igi airport, New Delhi from Dubai and he was intercepted by the customs authorities and to specific question as to whether he was carrying any contraband like gold etc., he replied in the negative. Thereafter his baggage was X-rayed and from the leather pouch held by him in his hand, 42 gold biscuits with foreign markings totally weighing 4892.00 grams and valued at Rs.l4,05,726.00 and Rs.22,53,080.00 were recovered and his personal search resulted in the recovery of Us Dollars 8100. It is further alleged in his statement that at the instance of one Deen Mohd. he was to deliver the contraband gold etc. to the petitioner. It is also alleged that when Mohideen came out of the airport he was approached by the petitioner who asked his driver to keep luggage in his car No.MFC- 8088.

(3) On 26th April, 1992 the petitioner was produced before the Metropolitan Magistrate and he was granted interim bail on 28th April. 1992 and the interim bail was extended from time to time and the petitioner was granted regular bail on 15th July, 1992 by the learned Additional Chief Metropolitan Magistrate. New Delhi. It has been stated in the petition that the petitioner after his release on bail has been attending the court of Acmm, New Delhi regularly.

(4) The case of the petitioner as stated in the petition is that he had gone to the airport to receive his sister-in-law who was coming to attend wedding of the petitioner's son scheduled for 6th May, 1992 but the petitioner did not see her coming and as such came out. At this stage he was intercepted by some officers of the customs department and they accused him of having come to airport to receive gold from Mohideen who had come from the same flight. The petitioner denied his involvement and stated that Mohideen Khan was not known to him in any way.

(5) Mr. Bagai, the learned counsel appearing on behalf of the petitioner, drew my attention to para 14 and 15 of the petition wherein it has been stated that the co-detenu Mohideen was detained pursuant to the orders of detention dated 2nd September, 1992, copy of which has been filed as Annexure-P13. It has further been stated that the case was referred for opinion of the Advisory Board and the Advisory Board after going through the facts and circumstances and keeping in view the policy of the Government of India as well as the availability of the requisite foreign exchange with him, gave the opinion that (here was no sufficient cause for his detention and pursuant to the opinion of the Advisory Board the order of detention of Mohideen Khan was revoked by I he Government of India vide order dated 17th Novembner. 1992. copy of which has been annexed as P-14 to the writ petition. The learned counsel also produced a copy of the order dated 19th February, 1993 which has been passed by the Government of India during the pendency of this writ petition revoking the order of detention passed against the other co- detenu Mohd. Moosa. It may be pointed out here that the fact regarding the revocation of the order passed by the Government of India in respect of the co-detenu Mohideen Khan has not been denied by Ms. Madhu Tewatia, learned counsel appearing on behalf of the respondents. Learned counsel for the petitioner, therefore, contended that the case of the petitioner was on a better footing inasmuch as no recovery of any contraband has been made from him and as such the order of detention passed against the petitioner was not sustainable. In support of his contention learned counsel placed reliance on a recent judgment passed by a Division Bench of this Court on 16th February. 1993 in Cri. Writ No.637 of 1992 - Prem Singh vs The Administrator of the National Capital Territory of Delhi. (1993 (25)DRJ 451) The learned counsel also contended that the impugned order has been passed for a wrong purpose against a wrong person and such was covered under the exceptions mentioned in the case of The Additional Secretary to the Government of India & Others vs Smi. Alka Gadia, .

(6) I have heard the learned counsel for the parties. In the case of Prem Singh (supra) six persons, namely, Jaspal Singh Ramgarhia, Lalit Kumar, Surjit Singh, Sandeep Singh, Surbir Singh and Daljit Singh had come from Hongkong and were intercepted by the officers of customs department outside the terminal building. In their statements the aid persons admitted having swallowed gold at Hongkong for the purpose of smuggling the same into India. On the basis of the disclosure statements made by these persons, the 73 premises of one VijayKumar were searched and while the search was on, Prem Singh arrived there and his search resulted in the recovery of 45 cut pieces of foreign marked gold wrapped in a paper lying in his pocket. The gold weighed 579 grams and valued over Rs-2.83 lakhs which was confiscated. Orders of detention against Sandeep Singh, Vijay Kumar and Prem Singh were passed by the Government ofindia. Whereas the detenu Vijay Kumar and Sandeep Singh were apprehended, Prem Singh challenged his order of detention before he could be detained. Detenu Vijay Kumar and Sandeep Singh were released on the basis of the recommendations made by the Advisory Board and keeping in view their release, the Division Bench held that the case of the petitioner Prem Singh did not appear to be any worse. In view of these facts it was, therefore, held that there has not been proper application of mind in passing the impugned order of detention. Accordingly, the order of detention was set aside. Ms. Tweatia the learned counsel appearing on behalf of the respondents, has not been able to point out any distinction between the facts of the case of Prem Singh (supra) decided by the Division Bench and the facts of the present case.

(7) In the present case the order of detention against the co-detenu Mohideen from whom the recovery of gold is alleged to have been made has already been revoked by the Government of India pursuant to the opinion of the Advisory Board and further the order of detention in respect of the other co-detenu namely. Moosa also has since been revoked by the Government of india In view of these facts the order of detention passed against the petitioner cannot be sustained. Accordingly the petition is allowed and the impugned order of detention dated 2nd September, 1992 is set aside.