Hasnabi Aslam Ali Kapde vs L. Huingliana

S.K. Desai, A.C.J.

In our opinion, in the present Writ Petition, we will perforce be required to quash the order of detention because of the casual and careless manner in which the detaining authority has performed his task.

On the statement of detenu, it would appear that he is a professional carrier. In the instant case, he has consciously and for a fairly substantial amount agreed to act as carrier for foreign currency to take it outside. Generally speaking, the detention, process under the COFEPOSA Act would be required to have applied to such persons to prevent them from repeating their activities in future after availing of bail granted which is fact has been granted and availed of in the instant case. It is to be regretted that despite detention being eminently suitable and deserved in the instant case, we have to quash the order of detention because of the clearly casual and careless manner in which the same has been passed.

The detenu was leaving Bombay at the International Airport on the night between 17th and 18th December, 1987. He and one Shebaz were to carry foreign currency concealed in the rectum and their principal was one Farid Mistry. This Farid Mistry has wisely left foe Dubai earlier and was to receive these two carriers at Dubai. Because of some prior information and perhaps because the detenu was not comfortable, the detenu was stopped at the Air-port and although he denied that he was carrying out contraband item including foreign currency on his person, he was off-loaded. Thereafter he was brought to the D.R.I. Office at Construction House, Ballard Estate, and ultimately although he initially persisted in the denial, he finally admitted that he was carrying foreign currency concealed in his rectum. The currency was thereafter recovered and seized under a panchanama which commenced at 9 a.m. and concluded at 11.30 a.m. on 18th December 1987.

Item No. 1 in the List of Documents/Statements placed before the detaining authority by the sponsoring authority (as we have ascertained from the original file) and item No. 1 in the List of Documents/Statements which accompany the order and the grounds of detention, which latter list is sent by the detaining authority, reads as under :

"1. Panchanama dated. 17-12-1987 01-03 for seizure of 20,000 U.S. Dollars at Airport, Bombay."

It is the admitted position that there was no seizure of foreign currency, namely, 20,000 U.S. Dollars on 17th December, 1987 nor was there any seizure at the Airport. The currency indicated in the grounds of detention and also in the statement of the detenu was recovered on 18th December 1987 at D.R.I. Office at Construction House, Ballard Estate.

In the same vein in Item No. 8 to the List of Documents/Statements accompanying the order and the grounds of detention and as stated earlier signed by the detaining authority. The said Item No. 8 is as under :-

"8. Application dated 17-3-1988 25

made to the Court for disposal of seized gold."

We have asked the learned Public Prosecutor to show us the forwarding letter pertaining to documents Nos. 7 and 8 in the list since originally only the first six documents were forwarded. The forwarding letter has not been placed for our perusal, but it is the admitted position that there was no seizure of gold and hence there could not have been and application for disposal of seized gold. The application or its copy given to us shows clearly that it was for disposal of the seized foreign currency, namely, 20,000 U.S. Dollars. It is undoubtedly true that if the copy of the panchanama and the application are perused, mistakes in the index or the list of documents are immediately perceived. However, what is important is that these mistakes were not perceived by the detaining authority although he signed the list of documents.

In another case where this is to be the only laxity perceived, we might have perhaps condoned the lapse, although deprecating it, but in the instant case we find in addition a failure to place before the detaining authority the passport and the air-ticket on which the detenu intended to travel by Cathay Pacific Airlines on 17th December, 1987. As per the detenu''s statement, his correct name is Aslam Ali Hussain Kapade. In his statement he has stated that his principal Farid Mistry had handed over a return Cathay Pacific ticket which was purchased from Madhu Travels on 16th November, 1987 in the name of Iqbal Hussain. In the said statement the detenu has further stated that this Farid Mistry has advised the detenu to obtain a passport in a fictitious name to avoid any problem with the Customs which was likely because of the detenu''s earlier involvement. In the grounds of detention, it is mentioned that when accosted by the officers at the Sahar Airport, the detenu gave his name as Iqbal Noor Mohammed and produced the passport as well as the ticket in that name.

This passport and the ticket have been seized by the D.R.I. authorities, but surprisingly they were not placed before the detaining authority. Equally surprising, the detaining authority did not notice the lapse and call for these two vital documents to assure himself of the correctness of what was noted in the statement of the statement of the detenu recorded u/s 108 of Customs Act. It may be mentioned that in the first panchanama it is clearly mentioned that the passport and the ticket were taken charge of by the D.R.I. offices from the detenu as the same would be relevant and useful in the enquiry proceedings. These were certainly documents concerning the involvement of the detenu in the matter and very relevant for considering whether a detention order is required to be passed in the instant case. Very surprisingly, these two vital pieces were not placed before the detaining authority. Equally surprising is the omission by the detaining authority to call from them.

To a certain extent, the inclusion in the grounds of detention regarding the detenu''s involvement in the earlier detention under the COFEPOSA Act is required to be deprecated when the only basis of making this statement is a statement by detenu. Surely, it is not difficult for D.R.I. authorities or the Customs authorities to check up with their counter - parts at Gujarat since sufficient details have been given and to produce the detention orders or such orders as may have been passed when these are intended to be referred to in the grounds of detention. We have seen the original proposal. The same mentions that the details regarding earlier involvement are not available. We have not been able to find for ourselves any reason why such details were not available particularly when the proposal was made as late as on 22nd March, 1988 and the sponsoring authorities therefore had sufficient time to make necessary enquiries with their counter-parts regarding the earlier involvement of the detenu.

A number of other pleas have been taken by the learned Advocate for the petitioner. We have not been impressed by any of them. There is some delay both at the stage of passing the order of detention but more so before executing the same. It has been urged that between May 1988 when the order of detention was passed and September 1988 when it was implemented, the detenu got married. That does not seem to have any relevance. We are told that efforts were made during this period to serve the order of detention on the detenu. We accept the submissions for whatever they are worth making it clear that merely because of the delay we would not have been inclined to release the detenu. It has been urged that his retraction statement and the memo under which he availed of bail were required to be placed before the detaining authority. It is equally urged that the order which was passed against the detenu''s application (regarding bail) was not placed before the detaining authority. We do not find much substance in these contentions and by themselves they would not have influenced us to quash the order of detention.

As stated earlier, the subjective satisfaction of the detaining authority has been brought about in a rather casual manner. The detaining authority has only referred to the statement of the detenu recorded u/s 108 of the Customs Act without verifying the correctness thereof in any manner even when documents were easily available. Indeed, in the instant case, the plea regarding travelling under the false passport was required to be confirmed by reference to the passport seized by the D.R.I. authorities. The fact of previous involvement is also found to have not been properly checked. If all this had been properly checked, the order made by the detaining authority would not have laid open to criticism, namely, that has been passed in a casual and careless manner and without application of mind. However, once we come to the above conclusion, Rule is required to be made absolute.

Order accordingly. The detenu to be set at liberty forthwith unless required in connection with some other matter.