BARKATULLA ALI HASAN SHAIKH Vs. RANJANA SINHA

JUDGEMENT

(1.) THE petitioner (detenu for convenience) is detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA Act') under the order of detention dated 10th April, 2002 issued by the Secretary (Preventive Detention) and Detaining Authority of the Government of Maharashtra (respondent 1 herein) with a view to preventing him in future from abetting the smuggling of goods and acting in a manner prejudicial to the conservation of foreign exchange. The order of detention along with the grounds of detention and material in support thereof was served on the detenu on 10th February 2006 and the detenu was detained. In the present petition there is a challenge to the said detention order.

(2.) THE grounds of detention indicate that the Officers of DRI had received specific intelligence that a container bearing No.TPHU-8007901 is likely to contain imported cigarettes against declared goods i.e. Plastic Moulding Granules and that this container is destined for Aurangabad Inland Container Depot (ICD) and is likely to be diverted enroute to a prearranged godown in Navi Mumbai area where the imported cigarettes would be replaced with low priced plastic granules, as declared in the import documents. The officers kept surveillance for the said container in the night of 23.10.2001, on the Panvel Uran Highway. The grounds of detention further state that at about 2100 hrs. the officers spotted a truck bearing registration No.MH-04-AL-3012 parked outside National Hotel on the said highway. The suspect container bearing no.TPHU-8007901 was mounted, on the said truck. In the said truck, beside the driver Shri. Sanjay Mane, three more persons i.e. Shri Avadesh Singh, cleaner of the said truck and Shri Dattatray Bankar, an employee of Shri Parvez Hasan and Shri Madhukar Khillare, a transport supervisor were found to be sitting. On enquiry by the officers, driver of the truck informed that the said truck would be taken by him to the godown premises situated near Turbhe Area, New Bombay, as per the directions of Shri Dattatraya Bankar and Shri Madhukar Khillare. Shri Dattatraya Bankar and Shri Madhukar Khillare stated that the truck is to be escorted by them to godown premises situated at D-209 MIDC, TTC area, HP Pipeline Road, Trubhe and both of them, volunteered to show the godown premises at Turbhe, to the officers. The said truck alongwith the container was thereafter escorted to the above said godown premises by the DRI Officers. Panchas were also called to witness the proceedings. In the said godown premises, two persons, viz. Shri Parvez Hasan and the detenu were also found. They were waiting for the arrival of abovementioned container for replacing the goods contained in the said container. For this, a large number of bags containing plastic granules was stored in the said godown. On enquiry, Shri. Parvez Hasan and the detenu admitted that the said container no.TPHU-8007901 actually contained cases of cigarettes, instead of plastic granules, as declared in the Import General Manifest (IGM) and Bill of Lading. Both Shri Parvez Hasan and the detenu admitted that the said cigarette cases were to be unloaded from the said container in the godown premises and thereafter the container was to be restuffed with plastic granules as per description given in the Bill of Lading for onward transportation to ICD Aurangabad.

(3.) MR .Khan, the learned counsel appearing for the petitioner, has assailed the impugned order on several grounds. However, he pressed only one ground which, according to him, vitiates the detention order. Mr.Khan submitted that the detenu had made a request for permitting his counsel to attend the Advisory Board meeting and represent his case. The detenu had submitted a letter dated 5th April 2006 to the Advisory Board making such a request. However, this request was not considered on its own merits. Relying on the judgment of the Supreme Court in Nand Lal Bajaj v. State of Punjab & Anr., 1981 (4) SCC 327; judgment of the Constitution Bench of the Supreme Court in A.K. Roy v. Union of India, AIR 1982 SC 710 and the judgment of this Court in Kakelwa Samuele Kongwa vs. Union of India & ors., 1985 CRI.L.J. 840, he submitted that the impugned order of detention must be set aside.