9911796707
TMI Blog1987 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... toms check at Calcutta airport requested for help from Miss Denaz Bhesania to send him to Bombay as a transit passenger. The witnesses did not agree to his request and advised him to observe the normal facilities for clearance of his baggage through immigration and customs. The petitioner again made futile attempts to go back to Bangkok. In the beginning, the petitioner attempted to mislead by stating that he only had gold jewellery in his possession. His baggage and person were then searched resulting in the recovery of 26 pieces, circular gold tablets which collectively weighed 3,742.4 grams and were valued at Rs. 8,08,421/-. These gold pieces were found inside his unregistered accompanied baggage. Since the petitioner failed to produce any valid document/permit in support of the legal importation of the gold tablets, the same were seized by the Customs officers on the reasonable belief that the same were smuggled and were liable to confiscation under the provisions of Customs Act, 1962 read with Foreign Exchange Regulation Act, 1963. 3. In his statement made on the same day, the petitioner admitted the recovery and seizure of the aforesaid gold from his possession. He however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d favourable material qua the detenu in the formation of the grounds by the detaining authority rendering the detention bad. Even though the respondents have denied the allegations but from the perusal of the material on record, it can safely be said that it is a pure and simple case of non-application of mind and the subjective satisfaction has been arrived at on non-existent and misconceived evidence. 7. The following illustrations will make the point crystal clear : Sl. No. Factully non-existent, erroneous, misconceived and incriminating facts relied upon in the grounds of detention (Annexure-B) Actual facts as per the statements relied upon 1. In Para 1 at Page 2 of the grounds it is stated that "Out of fright during the course of interrogation, he (detenu) suddenly desired to go back to Bangkok, and if not possible, to Kathmandu without the baggage being examined by Customs at Calcutta airport." (emphasis provided) The detenu on arrival at Calcutta first contacted Mrs. Tanima Datta the IAAI Lady Receptionist, who in turn took the detenu to Miss Denaz Bhesawa, Ground Hostess, Thai Airlines, whose statements have been reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Emphasis supplied) The assertions are erroneous, misconceived and non-existent. The detenu in his statement at Page 11 says, as under :- "While I was coming back to that Customs Officer another civil-dressed man interrogated me and as I did not know the rules and regulations of this country I thought carrying gold in transit to Bombay and Zurich is not an offence. As such, voluntarily I declared that I was having/carrying some gold in my biscuit-coloured suitcase."(Emphasis provided) 5. In Para 2 at Page 6, it is stated that "as regards the special cavities inside the suitcase and in the leather jacket.... (detenu) admitted that these had been made by him for carrying gold for smuggling." (Emphasis provided) The assertion is misconceived, inasmuch as it suppressed the material words which follow the said assertion, which is in the following words at Page 22 of the detenu's statement :- "Regarding the specially made cavities.... I would like to state that the same were made by me for carrying the gold safely after receiving the same from my aforesaid two friends for taking to Zurich." (Emphasis provided) 6. In Para 9 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the detention order." 8. As many as 8 factually non-existent and erroneous facts have been pointed out which formed part of and made the basis of the order of detention. The grounds do not flow from the material relied upon by the detaining authority. The mistakes or mis-statements made in the grounds of detention as well as in the affidavits clearly indicate total non-application of mind on the part of the detaining authority. To say the least, an inference is inevitable that the order of detention is passed mechanically and in a very casual and cavalier manner without application of mind and, therefore, is invalid. The contention of the learned counsel for the respondents is that the Court cannot overlook the fact of the petitioner having been found in possession of contraband gold when he landed at Calcutta airport. This fact, by itself, was enough for the detaining authority to conclude that the petitioner is engaged in the smuggling of gold into India and unless prevented, will continue to do so in future. This contention on the face of it is devoid of any substance. It is well-settled that in an order under the COFEPOSA Act, the decision of the authority is subjecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the airports. The fact that the detenu removed these packings clearly shows that he had no intention to enter Calcutta and had intended to carry gold to Zurich. (b) Page 18 of the statement of the detenu : "This is a telephone call Ticket dated 6-8-1986. The first telephone No. 57-2031 is the telephone No. of Air India, Calcutta airport and the second one No. 57-3685 also belongs to the same. On 6th I made telephone call to these telephone Nos. to give a tip to your Government regarding the smuggling of gold by two Nepalese as stated in my earlier pages, who arrived on 6-8-1986 at Calcutta airport by TG-313, but unfortunately nobody picked up the receiver and thus my honest effort went in vain." (c) Page 9 of the statement of the detenu : As per our earlier arrangements with my friends, I was supposed to flee away with the aforesaid gold to Bombay and then to Zurich literally by stealing the said gold from those two Nepalese and for that purpose I made contact with a lady employee of Thai at Calcutta airport for making necessary arrangement to send me to Bombay and for that I also requested her to take me to transit lounge. All these requests were made to her before observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the detaining authority. The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact, it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn, whether he is likely even in the future to indulge in an activity of smuggling. 15. In this case, the petitioner is a foreign national. It is his first and the last attempt to smuggle gold into India. His attempt failed and he was arrested on 8-8-1986. His three bail applications were rejected by the Chief Judicial Magistrate, Barasat as well as the Sessions Judge, Alipur, Calcutta. Even though he succeeded in obtaining an order of his release on bail from the High Court of Calcutta, but the conditions imposed were quite onerous i.e. furnishing of two sureties of Rs. 1 lakh each, one of which must be a local. Being a foreign national, and prima facie a smuggler, it was just not possible for the petitioner to comply with the conditions for his release on bail. For that matter, he was served with the order of detention while in jail custody. The circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to investigations and examination of the case at various stages. Lastly, the investigations continued till 9-10-1986. The statement of co-detenus namely Auer Raimund Joseph Bernheard and Raginald Clyde Fulton were recorded on 9-10-1986. Thereafter, the case after having been examined and scrutinised at various levels was placed before the detaining authority who passed the detention order on 3-11-1986. It is also pertinent to submit that before the passing of the detention order, some time was also spent in seeking certain clarifications by the detaining authority from the sponsoring authority. Besides, some time was also consumed in making copies of several documents numbering 145 which were to be supplied to the detenu immediately after his detention." This explanation, if it can be so termed, leaves much to be desired. Admittedly, the petitioner was arrested and detained on 7-8-1986. Almost all the documents came into existence on the same day. Nothing more was required to be done. It may be that the statements of Auer Raimund Joseph Bernheard and Raginald Clyde Fulton were recorded again on 9-10-1986 but in this, they only confirmed their previous statements recorded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
