JAYANTILAL KHETSI GADA Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
JAYANTILAL KHETSI GADA
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S.B.MAJMUDAR, S.H.SHETH -
(1.) These three special criminal applications challenge orders of detention passed against the concerned petitioner detenu by the first respondent in each of the petitions in exercise of powers under sec. 3 of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter called the COFEPOSA Act). As all the three petitions have resulted out of detention orders based on one and the same incident and as all of them involve similar facts all the three petitions have been heard together by consent of learned Advocates of both sides and are being disposed of by this common judgment. Respondent No. 1 relies on an incident dated 2nd August 1978 which is said to have occurred near Beyt Island within the jurisdiction of Okha Customs House. It is the case of the detaining authority that a small fire on a vessel near the cremation ground in Beyt Island was detected by preventive officers of Okha Customs House in the early hours of 2nd August 1978. By the time these officers reached the place they noticed that the vessel had been completely burnt except the bottom portion submerged in water and its engine. The said officers rummaged the said burnt vessel but could not see any identifying particulars such as the name and registration number. The engine was ascertained to be an eight cylinder Kelvin engine. The customs officers in spite of their best efforts could not locate the persons concerned with this vessel nor any one on his own came forward to claim the said vessel. The customs officers then seized the said burnt vessel along with its engine on 2nd August 1978 in the reasonable belief that it had been used in the carriage of smuggled goods.
(2.) It is further the case of the detaining authority that thereafter the customs officers intensified their attempt to collect as much intelligence as possible in respect of this burnt vessel that on 4-8-78 the customs officers received intelligence report which revealed that contraband wrist watches had been brought by the said vessel on 1st and 2nd August 1978 and one Daud Talu Betara of Okha Beyt was concerned with the bringing of the said wrist watches. The intelligence also revealed that said Daud Talu Betara was reported to be Tindel of the said burnt vessel and that he was wanted in an earlier customs case. It was also gathered that the said Daud Talu Betara was harboured by one Osman Jusab Bholim of Okha Beyt. It is further the case of the detaining authority that the customs officers after making further search found out various wrist watches which were smuggled wrist watches and of foreign origin; from different places in the surrounding area that on account of the aforesaid search by the customs authorities wrist watches watch straps and spare parts of foreign origin totalling to Rs. 33 70 819 and one Soni Radio Cassette Taperecorder also of foreign origin and valued at Rs. 1000.00 were seized under a regular Panchnama. On further investigation it was found by the customs authorities that Daud Talu Betara was the Tindel of the seized vessel that the name of the vessel was AlHamidi that it belonged to One Adu Dada residing in Dubai that thirty packets of wrist watches were loaded in the said vessel at Khorfkhan for being smuggled into India that Alle Punja Barot alias Bawa Hasan Malbari Abdul Latif Fakirmohmed of Beyt and Ismail Jumma Tangan of Beyt were the crew members on board the said vessel that the aforesaid goods were to be delivered to one Suleman Nira alias Suleman Soda of Okha Beyt near a small island off the Goa Coast that after the vessel left Khorfkhan for India after a voyage of about two days the aforesaid Hasan fell overboard in a mishap at sea that thereafter Abdul Latif proposed to take the vessel to Karachi and off loaded the goods there that accordingly when the launch reached off the cost of Karachi Latif disembarked into a raft made out of drums and went to the shore with twenty samples of wrist watches saying that he would return later with a boat for landing the goods that Daud Talu Betara and Alla Punja waited for Abdul Latif at that spot for four days but he did not return that they decided to take the vessel to Beyt as Daud Talu Betara belonged to that place and it was easy for them to land and conceal the smuggled goods there. It is further the case of the customs authorities that after a voyage of about sixteen hours they reached Beyt at midnight that they grounded the vessel near Haji Kirmani Pir and unloaded the packages of the smuggled wrist watches on the coast. It is alleged by the detaining authority that thereafter these persons who were concerned with the smuggled goods took the help of the petitioner in Special Criminal Application No. 123 of 1979 who was Sarpanch of village Vadalia Sinhan to dispose of some of the goods and the petitioners in Special Criminal Applications Nos. 124 and 125 of 1979 were the persons who purchased a part of these smuggled goods and that is how the present three petitioners are alleged to be involved in these alleged nefarious activities. The petitioner in Special Criminal Application No. 123 of 1979 is sought to be detained with a view to preventing him from engaging in transporting smuggled goods and harbouring persons engaged in smuggling goods while the petitioners in Special Criminal Applications Nos. 124 and 125 of 1979 are sought to be detained for preventing them from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. It is pertinent to note that the aforesaid incident which is said to have taken place near Beyt Island was of 2nd August 1978. Thereafter the petitioners in all these three petitions were sought to be detained by the first respondent in exercise of powers under sec. 3 of the COFEPOSA Act by earlier orders dated 8th March 1979 passed against each of the three petitioners. These orders were based on grounds which had reference to the incident of 2nd August 1978 as narrated above. All these three petitioners challenged the respective detention orders passed against each by filing three special criminal applications before this Court. The petitioner in Special Criminal Application No. 123 of 1979 filed Special Criminal Application No. 37 of 1979 challenging the previous detention order while petitioner in Special Criminal Application No. 124 of 1979 filed Special Criminal Application No. 46 of 1979 and the petitioner in Special Criminal Application No. 125 of 1979 filed Special Criminal Application No. 51 of 1979. By the aforesaid three previous special criminal applications the present three petitioners challenged the previous orders of detention passed against them by the detaining authority on the samc allegations which are even at present pressed into service by the detaining authority for detaining the petitioners. It appears that pending the aforesaid three previous special criminal applications filed by the concerned petitioners before this Court their detention orders dated 8th March 1979 were placed before the Advisory Board for its opinion as to whether the detention of the concerned petitioners was justified or not. The affidavit in reply filed in the present special criminal applications by Shree P. M. Shah Deputy Secretary to Government Home Department Sachivalaya shows that the Advisory Board opined that the detention orders passed against the concerned petitioners on 8th March 1979 were required to be revoked and accordingly the State Government revoked the detention orders passed against the concerned petitioners on 23rd April 1979. It is further revealed from the affidavit in reply of Shri Shah in the present proceedings that as the Advisory Board had opined that it was open to Government to pass fresh detention orders after considering the relevant materials the State Government thereafter made further efforts to gather relevant particulars concerning the role of each of the petitioners in the aforesaid incident and it is further revealed that thereafter present detention orders dated 1st August 1979 have been passed by the first respondent in exercise of powers under section 3 of the COFEPOSA Act against the concerned petitioners. The concerned detention orders are at Annexure A to each of the petitions. These impugned detention orders passed against the concerned petitioners have brought them to this Court once again by way of present petitions. Along with the concerned detention orders each of the petitioners is supplied with the grounds on which these fresh detention orders are sought to be justified. There is no dispute between the parties that the relevant grounds mentioned by the detaining authority as supporting the concerned orders of detention were the same which had resulted in the previous detention orders against the petitioners but with an addition that the concerned grounds also show that a show cause notice was issued to concerned detenu by the Additional Collector of Customs Ahmedabad and that thereafter these concerned detenus had filed their replies and one of the detenus Dinesh Girdharlal Chandarana who is petitioner in Special Criminal Application No. 124 of 1979 had in reply to the show cause notice denied the allegation with regard to smuggling of goods by him and he had also stated that his statement was taken under force and duress. It is further stated in these grounds as supporting the detention orders against the concerned petitioners that the Adjudicating Officer that is the Additional Collector of Customs Ahmedabad had considered the said affidavit filed by Dinesh Girdharlal Chandarana and all the replies filed by concerned detenus and others in the said proceedings and that after taking into consideration the retractions made by the concerned detenu and others during the said proceedings and with reference to other evidence on record the Adjudicating officer adjudicated the case under his order No. VIII/10-29/ Collr/78 dated 20th March 1979 wherein a penalty of R. 2000/- had been imposed on the concerned detenu. These averments are additional averments as found in the grounds supplied to each of the detenus in support of the concerned detention order as passed by the detaining authority.
(3.) Mr. C. V. Jani learned advocate appearing for the concerned petitioners in all these three special criminal applications submitted at the outset that once the previous detention orders passed against the concerned petitioners were revoked by the first respondent on account of the Advisory Board not endorsing the earlier action of the detaining authority seeking to detain the petitioners on the grounds which were mentioned against them fresh orders of detention on the same grounds could not have been passed by the detaining authority against the petitioners and consequently the detention orders were exfacie null and void and without any authority of law. Mr. Jani alternatively submitted that in any case the grounds supplied to the concerned petitioners themselves show complete non application of mind on the part of the detaining authority and hence also the impugned detention orders are exfacie null and void and are liable to be quashed. Mr. J. R. Nanavati learned Assistant Government Pleader appearing for the respondents on the other hand submitted that the detaining authority had ample jurisdiction to pass fresh orders of detention pertaining even to the same incident and against the same persons as per the provisions of sec. 11(2) of the COFEPOSA Act and consequently the impugned detention orders were quite justified in law Mr. Nanavati further submitted that the detaining authority had fully applied its mind to all the relevant facts and was quite alive to them when it passed the fresh detention orders against the concerned petitioners and consequently the detention orders were not suffering from any flaw and the challenge of the petitioners was without any basis.;
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