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TMI Blog2017 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... rotect the society from social menace by detaining such persons engaged in smuggling and related activities which have adverse effect on the national economy aimed at disrupting the economy has to be kept in mind along with the all important fact that procedural safeguards have to be ensured and the power conferred on the authorities is not casually exercised so that fundamental freedom guaranteed to the citizens is not undermined - Therefore, by adopting such pragmatic and realistic approach, we have carefully considered the entire materials and are of the view that exercise of power by the authorities, in the instant case, has been strictly as per the safeguards provided. Detention upheld - petition dismissed - decided against detenue. - W.P.H.C.No.98/2016 - - - Dated:- 22-3-2017 - B. S. PATIL And B.V.NAGARATHNA, JJ. For the Petitioner : Sri Kiran S. Javali, Adv. Sri Chandrashekara K., Adv. For the Respondent : Sri I. Tharanath Poojary, AGA. ORDER 1. Petitioner has filed this writ petition challenging the order of detention of his brother, Sri Fazal Akrami @ Fazlur Rahman @ Fazal (hereinafter referred to as 'detenue') dated 07.06.2016 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to hand over the said foreign currency to a person at Dubai Airport who would recognize him through his photo and also looking at the trolley baggage carried by him. 3. During the course of investigation, statement under Section 108 of the Customs Act, 1962 of Abdul Ghani, Hameed Ulla, Afsar Ulla Shariff, the detenue Fazal and also that of one Mohammed Shuab Bahadur were recorded. Residence of the detenue Fazal situated at No.171, Dar-E-Akram, Jamia Abbad Road, Madina Colony, Bhatkal, was searched, but no document was seized. Even in the residential premises of Mohamed Shaub Bahadur situated at No.8, 1st Main, 1st Stage, BTM Layout, N.S.Palya, Maruti Layout, Bangalore, no goods/documents were seized. 4. The seized foreign currency equivalent to Indian currency of ₹ 54,20,792.30/- and ₹ 1,04,35,812.30/- concealed by Abdul Ghani and Hameed Ulla respectively were kept in the Government custody. 5. On verification of the records, the authorities found: i) that detenue Fazal was involved in attempted smuggling of ₹ 73,22,600/- Indian currency from Bengaluru to Sharjah by arranging money through one Hussain and engaging Khaja Mainuddin Yusufji to smuggle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Mohammed Shuab Bahadur, who were absconding, were found visiting a commercial complex on 09.02.2016 near Halsoor Police Station, Hudson Circle, Bengaluru around 13:40 hours, the officers who had kept watch in that vicinity identified and intercepted them. 9. The voluntary statement of detenue Fazal was recorded on 09.02.2016 under Section 108 of the Customs Act, wherein he has stated that he had been doing business of readymade garments at Bengaluru; he disclosed all the details with regard to his involvement in handling of fake Indian currency and smuggling of foreign currency. 10. The grounds of detention make it clear that Mohammed Shuab Bahadur, the detenue in WPHC No.97/2016 and the present detenue involved in this case were hand in glove with each other along with several others, to commit serious offence aimed at disrupting Indian economy and were the key players involved in the offences having serious ramification affecting the fabric of Indian economy and security. 11. The grounds urged by the petitioners herein are common to the grounds urged by the petitioner in WPHC No.97/2016 wherein the detention of the Mohammed Shuab Bahadur was challenged. The order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerted effort made by several persons who were involved in series of incidents resulting in smuggling of gold into India and smuggling of currency out of India does not provide any room for the petitioner to contend that there was no material to show that the detenue had himself involved physically and personally in the act of smuggling and in the absence of such material, order of detention under Section 3(1)(i) of the Act could not have been issued. That there was a vital link between the detenue and Nidheesh Tharol from whom contraband gold was recovered and from Mivin and Mufeed Majeed and others as is evident from the materials gathered during the course of investigation which were the basis for the detaining authority to form the subjective satisfaction. 21. The so called illegible documents at pages 326, 328, 329, 330, 338, etc., are not the documents on which reliance has been placed by the detaining authority for the purpose of passing the order of detention. Therefore, ground urged in this regard cannot be accepted. It is true, relevant evidence if excluded from consideration vitiates the detention. But in the instant case, no case is made out to show that relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker footing compared to that of the detenue in WPHC No.97/2016. 13. We have discussed in our order passed in WPHC No.97/2016 the effect of the following judgments: (i) DHARMISTA BHAGAT VS STATE OF KARNATAKA ANOTHER - 1989 Supp (2) SCC 155; (ii) SMT. ICCHU DEVI CHORARIA VS UNION OF INDIA OTHERS - AIR 1980 SC 1983; (iii) AYYA ALIAS AYUB VS STATE OF U.P. ANOTHER - AIR 1989 SC 364; (iv) MADAN LAL ANAND VS UNION OF INDIA OTHERS - AIR 1990 SC 176; (v) N.K.BAPNA VS. UNION OF INDIA OTHERS - (1992) 3 SCC 512; (vi) SITTHI ZURAINA BEGUM Vs. UNION OF INDIA OTHERS - (2002) 10 SCC 448; (vii) USHA AGARWAL Vs. UNION OF INDIA AND OTHERS - (2007) 1 SCC 295; (viii) GAUTAM JAIN Vs. UNION OF INDIA ANOTHER - CRL.APPEAL NO.2281/2014 DATED 04.01.2017; (ix) MST.L.M.S. UMMU SALEEMA Vs. SHRI B.B.GUJARAL AND ANOTHER - (1981) 3 SCC 317; (x) PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA OTHERS - 1985 (SUPP) SCC 144. 14. We may add here that the confessional statement and other independent facts including seizure and recovery of important documents and currency notes and nature and manner of activities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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