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TMI Blog1989 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... telephones and two transistors. The gold was seized. The petitioner was placed under arrest and thereafter examined under Section 108 of the Customs Act. In his statement he revealed that the gold that had been recovered from the telephones/transistors had been handed over to him by his friend Ali Sher in Dubai who was there for the last three years and had been coming and going back in between but was presently in Dubai, and that it was said Ali Sher who had purchased petitioner's ticket to and from Dubai and that he had been asked by him to take the gold out without payment of duty, and he would collect the same from him on reaching Delhi, but he was not aware as to how Ali Sher got gold melted for concealment in the telephones/transistors. In this very statement the petitioner revealed that this was his first mistake and he wanted to be excused as he had fallen a prey to greed. 3.The petitioner was subsequently released on bail by order passed by the Addl. Chief Metropolitan Magistrate on 11th July, 1988 on his furnishing personal bond in the sum of Rs. 7000/- with one surety in the like amount subject to the condition that he shall not leave the country without the written p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that he was capable of indulging in smuggling and that no ground existed for passing of this detention order. 7.Ms. Kamini Lao, appearing for Mr. R.P. Lao, for respondents 2 and 3, countered these arguments by contending that the detention was not for prevention of mere smuggling, but as revealed by the grounds of detention for the wider purpose of preventing the petitioner from indulging in smuggling activities; which expression has a wider ambit and would include the act of transportation, keeping as well as concealing smuggled goods, and that inasmuch as the petitioner had revealed in his statement that this gold had been given to him by his friend Ali Sher for being kept by him till said Ali Sher arrived in Delhi and retrieved the gold from him; it would also be a case where act of transportation and concealment would be inherent. She placed reliance in support of this contention on a judgment of this Court in Criminal Writ No. 119 of 1985 in the case of Om Prakash Kukreja v. The State, decided by a learned Single Judge on 12th September, 1985. 8.Ms. Lao also argued that in this case the counter affidavit filed on behalf of the detaining authority makes it clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o or did not contain full details, would not vitiate the detention order. She relied upon the Supreme Court judgment in support of this contention in the case of State of Punjab and Others v. Jagdev Singh Talwandi, AIR 1984 SC 444. She argued that inasmuch as the documents supplied with the grounds of detention included copy of the passport, this constitutes sufficient indication that it was within the knowledge of the detaining authority that the passport when the petitioner was in the custody of the customs authorities and when the detention order has been passed in spite of this awareness, the logical inference is that the detaining authority felt satisfied that irrespective of the fact that the petitioner was not in possession of the passport at the relevent time, still he was required to be preventively detained to keep a check on his smuggling activities. 12.Ms. Lao summed up her arguments by contending that as the affidavit filed in counter to the writ petition clearly states that irrespective of the fact that passport was not with the detenu, there were instances where by use of false or forged passports, smuggling activity had gone on, and thus petitioner's detention can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggle gold in future, would made it a case where the detention was passed on non-existent material. 15.She pointed out that the present case was identical because here also the petitioner in his statement has very clearly told the customs authorities that this was his first trip when he agreed to carry gold stealthily by a friend, and that he had no intention or design to go out of India again. Surrender of passport, the counsel argued, was evidence of this state of mind of the petitioner, and that once it was handed over to the customs authorities, it made least difference whether it had been seized or voluntarily surrendered because the net result would be the same, to the effect that it remained in the custody of the customs authorities, and experience showed that it was never returned except under orders of the court, so long as the proceedings remained pending. She reiterated that there was a case where the ratio laid down in the case of Mohd. Saleem (supra) will fully apply because apart from the fact that the counter affidavit is based on non-existent material, otherwise also even if there was any material in existence to the knowledge of the detaining authority, the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m smuggling goods. 18.It is pertinent to note that Ms. Kamini Lao, in spite of her vehement arguments, raising different points, had to concede that the records do not contain any information or material to the effect that the petitioner had means of forging a passport or was likely to travel on a false passport, or make clandestine trips or that he had been indulging in diverse smuggling activities, besides this act of bringing gold into India on his first visit abroad. It is thus a case where not only the material now stated for the first time in the counter affidavit is nowhere disclosed in the grounds of detention, thus bringing the case within the mischief contemplated in the Full Bench judgment in the case of Mohd. Saleem (supra); it is further a case where the officer filing the counter has referred to non-existent material, and it is nothing but his own ipese dixit. 19.This type of counter affidavit cannot be taken into consideration. The authorities cited by Ms. Lao only lay down that in a given case the counter affidavit may supplement the awareness of the detaining authority by a relevant or material fact, but not a single judgment would say that the counter affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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