At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE G.S. KULKARNI
For the Petitioner: D.S. Mhaispurkar, Advocate. For the Respondents: R1, R2, R4 & R5, Jayesh P. Yagnik, Addl.Public Prosecutor, R3, A.S. Pai, Special Public Prosecutor, R5, Rebecca Gonsalves, Advocate.
G.S. Kulkarni, J.
1. This Writ Petition under Article 226 of the Constitution of India challenges the order of detention dated 27.3.2015 passed by respondent No.1 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA') preventive detaining one Burhan Fakhruddin Khatumdi (for short 'the detenu'). The detention order has been passed to prevent the detenu from indulging in smuggling of goods in future. The petitioner is the brother-in-law of the detenu.
2. The factual background which according to the detaining authority forms the basis to pass the impugned detention order is that an intelligence was received by the Officers of the Directorate of Revenue Intelligence (DRI), Mumbai, that two passengers by name Piyush Jasraj Soni and Smt.Sakina Barafwala who were holding Indian passport would arrive by Oman Air Flight from Muscat on 22.1.2015. These passengers would be carrying foreign marked gold bars and they would be attempting to smuggle the same into the country without declaring the same to the Customs Authorities. On this information, these passengers on their arrival were apprehended by the Customs Officials at the Customs Arrival Hall at the Mumbai International Airport. The examination of their baggage in the office of the Superintendent of Customs revealed that the bags contained gold bars with foreign marking. They had earlier refused to declare the gold to the Customs Authorities. There was also a personal search of Mr.Piyush Jasraj Soni which resulted in recovery of two silver coloured bracelets and one silver coloured heavy chain. Mr.Piyush Soni admitted that these were articles of gold, however, they were silver plated. The weight of these articles was about 435 gms. On inquiry with these persons, they revealed the name of the detenue to whom that gold was to be ultimately handed over. The total value of the gold bars sezied weighing 6 kg., was valued about Rs.1,49,89,380/- and the value of the bracelet and chain was Rs.10,86,730/-. Similarly, the examination of the baggage of the other passenger Smt.Sakina Barafwala had revealed the discovery of documents pertaining to purchase of said gold at Dubai and a letter of no objection issued by the Jewellers to the Duty Officer, Dubai Police to carry the gold. A personal search of Smt.Sakina also resulted in recovery of two metallic bracelets of silver colour which she admitted to be of gold and plated with silver and same were handed over to her by one person in Dubai which she informed were to be handed over to the detenu. The weight of the said bracelet was 235 gms. Valued at Rs.5,87,084/-. A statement of Mr.Piyush Jasraj Soni as also the statement of one Mr.Siddhesh Mohan Patil who was the employee of Air India as a Flight Purser was also recorded who had agreed to clear the gold from the Airport. These were recorde
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d under Section 108 of the Customs Act A statement of the detenue was recorded on 22.1.2015. The detaining Authority has stated that certain admissions were elicited from the detenu as regards the gold which was sought to be smuggled. Also the detenu had identified Mr.Piyush Soni, Smt.Sakina Barafwala and Mr.Siddhesh Patil and these persons also identified the detenu. Mr.Piyush Soni, Mr.Siddhesh Patil filed their retraction before the Additional Chief Metropolitan Magistrate on 23.1.2015. The rebuttal to the retraction was filed by DRI on 5.2.2015. Thereafter, the detenu filed a bail application. The bail application was heard on 13.2.2015 and by order dated 18.2.2015 the learned Metropolitan Magistrate rejected the bail application and the remand was extended upto 4.3.2015. Again a bail application was moved before the Sessions Court and the same was heard on 27.2.2015. The Sessions Court granted bail to the detenu. Thereafter, a Miscellaneous Application No.569 of 2015 was moved by the detenu for a cash bail which was opposed by the DRI and the said application was ultimately withdrawn by the detenu. The bail granted on 27.2.2015 was availed of by the detenu. The DRI had filed a Miscellaneous Application dated 2.3.2015 in Bail Application No.553 of 2015 before the Sessions Court seeking imposing of a condition on the detenu for attendance at DRI office. The said application filed by the DRI was rejected by the Court on 4.3.2015. An application was thereafter moved by the Detenu on 9.3.2015 seeking permission from the Court of the learned Metropolitan Magistrate to travel abroad. This application was opposed by the Sponsoring Authority by filing a reply dated 13.3.2015. The said application, however, came to be granted by an order dated 19.3.2015 and the detenu was permitted to travel abroad. The detention order, thereafter, came to be passed on 27.3.2015.
3. The learned Counsel appearing on behalf of the petitioner has urged several grounds to challenge the impugned order of detention. The first ground being urged on behalf of the petitioner is that there is non application of mind on the part of the detaining Authority to the vital documents namely the application filed by the detenu before the learned Metropolitan Magistrate seeking permission to go abroad, the reply dated 13.3.2015 to the said application filed by the Sponsoring Authority. Learned Counsel for the petitioner submits that these documents are referred in the Index of the documents as supplied to the petitioner at Item Nos.78 and 79 and were available for consideration of the detaining Authority