M A BROSH NAINAR Vs. STATE

JUDGEMENT

(1.) This writ petition is filed by one Brosh Nainar under Art. 226 of the Constitution of India, seeking the issue of a writ of habeas corpus quashing the order of detention passed by the respondent, namely, State of Tamil Nadu, against the petitioner's brother by name Nainar Khaja Mohideen alias Haja Mohideen alias Sultan Basheer and setting him at liberty."

(2.) The impugned order of detention was passed by the detaining authority in exercise of the powers conferred by S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (Central Act 52 of 1974) with a view to preventing the detenu from smuggling goods and the detenu was directed to be detained and kept in the custody in the Central Prison, Madurai.

(3.) The brief facts as set out in the grounds of detention which necessitated the passing of the order of detention are as follows :- On 29/30-5-1985 at about 1.15 a.m. the detenu arrived as a passenger by Indian Airlines flight and was cleared on oral declaration. He paid his customs duty but he was intercepted at the exist gate by an intelligence officer of the Customs and he was taken for re-examination on a reasonable belief that the detenu might have smuggled undeclared goods and contraband in his baggage. Before re-examination of the baggage, the Customs Officer questioned the detenu as to whether the latter had kept any gold or watches either in his baggage or on his person to which the detenu gave a negative reply. Thereafter, his baggages were examined and found to contain one National Radio cassettes and some other articles. The detenu was taken into a closed room along with witnesses and constantly questioned. Then he admitted that he had kept gold bars concealed in his rectum and volunteered to eject the same. He was taken to the toilet room situate inside the International passengers' arrival hall where he ejected one black colour bundle through his rectum in the presence of witnesses and the bundle was found to contain four numbers of gold bars with foreign marking each weighing 10 tolas. As the detenu was not having any valid import licence or permit issued by the Reserve Bank of India for the import of the above said four gold bars, those gold bars were seized. A statement was recorded from him on 30-5-1985. In a follow-up action a wireless message was sent to the Inspector, C.C.P. Tondi, to inform the Assistant Collector of Central Excise, Customs Division, Ramnad, to search the residential premises of the detenu. Accordingly, the house was searched and no incriminating document was found. On 13-6-1985, the detenu wrote a letter to the Superintendent of Customs retracting from the alleged voluntary information given on 30-5-1985, complaining that it was recorded by threat and coercion. The detenu was arrested on 30-5-1985 and produced before the Additional Chief Metropolitan Magistrate, Economic Offences, Egmore and remanded to judicial custody. Then he was released on bail. A show cause notice was issued on 22-11-1985 but the same was returned undelivered on 9-12-1985.