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2002 (12) TMI 490

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..... rams of gold worth about Rs. 7,40,834. 3. His statement was recorded, where he admitted that the bag, though was in the name of Noor Mohammed, belonged to him. His voluntary statement was recorded on the same day where he stated that he had visited India four or five times earlier; that he knows Sinhalese and Tamil to read and write; that he used to bring other materials like cloves and soaps, and used to carry clothes from here; that he had met a person named Noor Mohammed in Colombo Airport and he requested him to check in his baggage in the name of Noor Mohammed along with his two baggages and for this he was paid Rs. 500. Accordingly, he had, as per the request of Noor Mohammed, registered his baggage along with Noor Mohammed s two baggages in the name of Noor Mohammed and gave the luggage tag. He then admitted that he took the flight to Chennai and in Chennai Airport he collected his one checked in baggage. Further statement was also recorded on the same day wherein he admitted his connection with Noor Mohammed. On these grounds, the order seems to have been passed rendering him to be a smuggler and with a view to prevent him from taking part in the smuggling activities. .....

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..... overnment, therefore, consider that it is necessary to detain you under section 3(1)( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 6. The State Government are also satisfied that on the facts and materials mentioned above, if you are released on bail, you will indulge in such activities and that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such activities. The State Government, therefore, consider that it is necessary to detain you under section 3(1)( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from smuggling of goods in future." 9. The learned counsel, however, points out that there is absolutely nothing in the whole grounds to suggest that the detaining authority was alive to the fact that the petitioner s passport was already retained to judicial custody and therefore, it was impossible for him to have engaged himself in smuggling activities. According to the learned counsel, the detaining authority has not considered the effect of the retention of the passport at all. .....

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..... validate the impugned detention order and it is not necessary to consider the other issues raised by the appellant." 12. The learned counsel further pointed out that similar to the reported decision, the petitioner was also described to be making trips in and outside India and had been in contact with one Noor Mohammed who was more or less responsible for the activities of the petitioner. The learned counsel pointed out the further similarity that the petitioner s passport was also withdrawn by the Customs Department and therefore, there was no question of petitioner being able to conduct any activity much less of smuggling and therefore, according to the learned counsel there was no basis for the apprehension of the detaining authority that the petitioner was likely to continue his smuggling activities or that he could, in fact, continue such an activity of smuggling. 13. In short, the contention raised is that the detaining authority did not take into consideration the fact that the whole pattern of the smuggling activity depended upon the petitioner s travel in and outside India along with Noor Mohammed, which undoubtedly require the passport, and since the passport was .....

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..... Mohammed and that he used to carry the contraband goods only at the instance of Noor Mohammed. This suggests that the activity of smuggling, at least in the case of the petitioner, was essentially connected with the travels in and outside India. There is no other activity either suggested or attributed to the petitioner. If this was so, then while making up the mind for passing the order, it was undoubtedly essential for the detaining authority to say something about the passport having been impounded and the result of the impounding of the passport by the Court. Unfortunately, that is not to be seen in either paragraph 5 or 6 or for that matter anywhere in the grounds. 18. There is no doubt that in M. Ahamedkutty s case, ( supra ) the Supreme Court held that it was for the concerned authority to weigh this fact one way or the other. However, we cannot forget the observation of the Supreme Court in that paragraph itself, which is to the following effect: "This was no doubt one of the factors that the detaining authority should have taken (and did in fact take) into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final .....

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