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2020 (1) TMI 209 - HC - CustomsSmuggling of Gold - Detention of accused - reasons to believe and grounds of arrest - Petitioner submitted that arrest and custody of the detenue was in violation of Art. 22(1) of the Constitution of India and Section 104 of the Customs Act, 1962, and hence continued detention was illegal and the accused was entitled for release forthwith in terms of Article 21 of the Constitution of India - HELD THAT - On perusal arrest memorandum and the remand application, it clear that prosecution has noted that one Nisar Aliyar had smuggled gold valued at ₹ 60 Crores into India one container on 26-3-2019 concealing them inside imported metal scrap, part of which has been seized by DRI. It appears that the present detenue's son by name Happy Dhakad, who had established a company by name M/s. Ekdant Commercial Pvt. Ltd. in which though the detenue was a Director, he has claimed that he was not actively participating in the operation of the business and was not a shareholder in the said company. It appears that the said Happay Dhakad had also been summoned and had been arrested. Both - Nisar and Happy Dhakad and several other accused have been released by the Advisory Board of COFEPOSA. The interim prayers ought to be granted, subject to further orders that may be passed on final adjudication of the matter - detenue is allowed to be released.
Issues:
1. Violation of Art. 22(1) of the Constitution of India and S. 104 of the Customs Act, 1962 in the arrest and custody of the detenue. 2. Challenge to the remand order passed by the Learned Additional Chief Metropolitan Magistrate. 3. Request for interim relief by the Petitioner based on legal precedents. 4. Prosecution's contentions regarding the financial consequences and impact on the economy. 5. Examination of the arrest memorandum and remand application by the Court. Issue 1: Violation of Constitutional Rights and Customs Act: The Petitioner contended that the arrest and detention of the detenue were in violation of Art. 22(1) of the Constitution of India and S. 104 of the Customs Act, 1962. The Petitioner argued that the arrest memorandum did not comply with the requirements of S. 104, which necessitates informing the accused of the "reasons to believe" and "grounds of arrest" at the earliest. The Petitioner highlighted that the detenue was summoned and arrested without proper communication of the grounds of detention, thus violating constitutional rights. Issue 2: Challenge to Remand Order: The Petitioner challenged the remand order passed by the Learned Additional Chief Metropolitan Magistrate, alleging it was mechanical and failed to consider citations relied upon by the Petitioner. The Petitioner sought to contest the remand order, emphasizing the need for a fair judicial process and adherence to legal standards in such decisions. Issue 3: Request for Interim Relief: The Petitioner invoked legal precedents, including judgments of the Hon'ble Supreme Court, to support the prayer for interim relief. The Petitioner cited cases where habeas corpus writs were allowed, directing the release of the petitioner in custody. The Petitioner argued for immediate release of the detenue based on constitutional rights and legal principles. Issue 4: Financial Consequences and Economic Impact: The prosecution highlighted the financial implications and economic consequences of the case, emphasizing the seriousness of the matter. The prosecution opposed the Petitioner's plea for interim relief, stressing the significance of the case on the economy and financial stability of the country. Issue 5: Examination of Arrest Memorandum and Remand Application: The Court examined the arrest memorandum and remand application presented by the prosecution. The Court analyzed the details provided in these documents, including the allegations against the detenue regarding smuggling activities. The Court scrutinized the prosecution's contentions and observed potential discrepancies in the presumption of the detenue's involvement based on the information presented. In the final judgment, the Court granted interim relief to the detenue, directing immediate release while imposing specific conditions. The Court emphasized the importance of following due process and constitutional rights, ensuring the detenue's presence before authorities as required. The Court rejected the request for a stay on the interim order, emphasizing the seriousness of the detenue's constitutional rights. The matter was scheduled for further proceedings as requested by the prosecution.
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