N.H.BHATT - (1.) This is a petition under Article 226 of the Constitution of India for a writ of Habeas Corpus seeking quashing of the detention order of the petitioner one Vijay. This matter was heard almost for the full day yesterday and to us it appealed that Mr. Kapadia the learned counsel had finished his arguments to a substantial extent if not wholly. Today even at 11.15 A.M. Mr. Kapadia is not present and therefore we are constrained to proceed to dictating our judgment.
(2.) The detention order Annexure A dated 28-6-84 has been passed by the Additional Secretary to the Government of India who ordered to detain the petitioner with a view to preventing him from dealing in smuggled goods other. wise than by engaging in transporting or concealing or keeping smuggled goods. The grounds of detention hearing the same date are to be found at Annexure B It was alleged in the grounds that on information received on 23-7-83 from the Collector of Customs Ahmedabad the Customs Officers of Surat had kept a watch near the residential premises of this petitioner between 3.00 A.M. and 4 A.M. on 24-7-83. There alighted from the rickshaw at that time a person carrying a rexin bag in his hand. The man gave his name to be Shantilal Haridas Patel of Ahmedabad and search of his person resulted in the recovery of 31 pieces of silver totally weighing 15 kgs. valued at Rs. 52 200 (At this stage Mr. Kapadia appeared and made a request to permit him to argue. We have permitted so and have heard him upto 12.15 P.M. and now we proceed with our dictation). The further investigations were carried out and it turned out that said Shantilal used to transport silver supplied by one Kishanlal Meghraj Soni of Ahmedabad for giving its delivery to the petitioner at his residence at Surat; that earlier on 16-7-83 he had delivered 15 kgs. of silver to him and had taken Rs. 30 0 from the petitioner for handing over the same to Kishanlal that on 20-7-83 said Shantilal had delivered to the petitioner at his residence another quantity of 15 kgs. of silver bars and the petitioner had delivered to said Shantilal two slabs of foreign marked gold weighing ten tolas each for delivering it to Kishanlal Soni that again on 22-7-83 said Shantilal had delivered silver weighing 15 kgs. to the petitioner at his residence and the petitioner had handed over to Shantilal two slabs of foreign marked gold of ten tolas each for delivering the same to Kishanlal Soni; and that on the night of 23/24-7-83 Shantilal was actually caught hold of with 31 silver bars as narrated hereinabove. The detaining authority also found that the petitioner had agreed with Kishanlal Soni of Ahmedabad to take delivery of unaccounted silver on commission basis and that the petitioner in his him had made arrangements with one Nadir Dingmar who had given the petitioner Rs. 30 0 in advance towards the purchase of silver and that the petitioner himself was bringing the foreign marked gold in exchange from Nazir Dingmar. The statement of said Shantilal was recorded on 24 under sec. 108 of the Customs Act and it also showed the same thing. Similarly the statement of the petitioner also was recorded on 24-7-83 and on search of his premises that night certain incriminating documents along with two dairies were recovered and the petitioner admitted in his statement dated 25-7-83 that the accounts written in the documents contained the accounts of foreign marked gold and silver. The detailing authority ultimately concluded as follows:- "12 From the facts narrated above it is seen that you have been dealing in smuggled goods. During the search of your residential premises certain incriminating documents including two diaries were recovered as aforesaid. In your statement dated 25 you Vijaykumar Champaklal Shah/Chokshi have admitted that the accounts written on the documents contain the accounts of foreign marked gold and silver. The documents seized also reveal the dealings of contraband goods i.e. fabrics of foreign origin wrist watches of foreign origins for which you have failed to produce proof of import or payment of customs duty. From the two diaries recovered from your residential premises it is seen that you had transacted in gold and silver on 12-5-83 16 18 19 20 22 and 23-5-83 and the total transaction of such gold comes to 19 slabs valued at Rs. 3 99 900 and cash transaction of Rs. 1 81 800 against 145 kgs. of silver. I have therefore no hesitation to conclude that you have been dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. Even though adjudication proceedings under the Customs Act have been initiated against you and prosecution proceedings under the Customs Act 1962 are likely to be initiated against you I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 with a view to preventing you from dealing in smuggled goods otherwise than by engaging transporting or concealing or keeping smuggled goods. While arriving at the above satisfaction I have considered the bail applications led by you and others before the Chief Judicial Magistrate Surat and the letter dated 29-7-83 of Shantilal Haridas Patel addressed to the Assistant Collector Customs Surat"
(3.) The petitioner made a representation to the Central Government on 13 and it had come to be rejected on 3-8-84. Before that this petition also had already come to be filed and therefore some additional grounds also were pleaded by way of amendment. We propose to deal with each of those arguments advanced vigorously by Mr. Kapadia before us one by one.;