KUNBUDEEN ALI BHOY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS writ petition has been filed for issue of a writ of habeas corpus to quash the order of detention passed by the respondent ing. O. SR. 1/1317-2/88, Public (S. C.) Department, dated 12. 10. 1988 and to set at liberty the detenu Kunubudeen Ali Bhoy son of Ali Bhoy Abdul Ali, presently undergoing detention in Central prison, Madras.

(2.) THE short facts leading to the passing of the impugned order of detention are as follows: THE detenu was a passenger in the Indian Airlines flight from Calcutt a to Madras on 2. 10. 1988. He carried one Echolack briefcase and on certain information he was intercepted by the Madras Customs Officers at the exit gate. His brief case was searched and found to contain gold biscuits of foreign origin in six pouches each containing 10 gold biscuits. He stated that he is a Sri Lankan dealing in re-conditioned car, that one Abdul Kader used to frequent his shop for the purchase of reconditioned car, that he suggested to the detenu that he should remove the gold bars concealed in the toilet of Indian Airlines and deliver the same to him, that he left for Calcutta from Madras on 1. 10. 1988 and booked a return flight on 2. 10. 1988, that he boarded the plane at Calcutta and took the gold bars from the airport and that he was caught when he was coming. THE detenu was arrested on 3. 10. 1988 and the bail application filed by him was dismissed on 10. 10. 1988. After further investigation, the impugned detention order was passed on 12. 10. 1988 under the provisions of Sec. 3 (1) ( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974 with a view to preventing the detenu from smuggling goods.

(3.) WE find that these two decisions have correctly interpreted the scope of Sec. 3 (1) of the Act and therefore, we adopt the same reasoning and hold that the act of transporting will not come under Clause ( i ) of Sec. 3 of the Act Bearing the abovesaid principles, let us now consider the facts of the present case. The impugned order of detention has been passed under Sec. 3 (1) (i ) of the Act with a view to preventing the detenu from smuggling goods. A reading of the grounds of detention shows that the detenu was intercepted at the Madras Airport by the Customs Officers who seized gold from him. This shows that the detenu was transporting the smuggled gold as the act of smuggling was already complete as, according to the respondent, the gold was concealed in the toilet of the Indian airlines and one Abdul Kader instructed the detenu to remove the gold bars Concealed in the toilet and deliver the same to Abdul Kader on arrival at Madras for a monetary consideration of Rs. 100 per bar. It shows that he was not connected with the actual smuggling of gold from Colombo to Madras on 24. 9. 1988. As per the facts set out in the grounds of detention, the detenu was engaged in transporting the smuggled gold from Calcutta to Madras. Therefore, on the basis of the above interpretation given to Sec. 3 (1)of the Act, we have to come to the conclusion that Sec. 3 (1), Subclause ( i ) of the Act is not attracted. In the result, the only inference that could be drawn is that the detaining authority has certainly not applied his mind to the statutory provisions and to the facts of the case properly, resulting in a total misdirection in arriving at his satisfaction. The impugned order passed as a result of non-application of the mind is, therefore liable to be quashed.