- (1.) Leave granted in S.L.P. 1A. The above appeal and the Writ Petition are filed by Smt. Hawabi Sayed Arif Hanif, who is the wife of the detenu, Sayed Arif Sayed Hanif, assailing the validity of the order of detention dated 23-10-90 passed against the detenu, by the first respondent (Secretary, Preventive Detention, to the Government of' Maharashtra) in exercise of the powers conferred on him under sub-sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act') with a view to preventing him from smuggling of goods.
(2.) The factual matrix of the case in a short compass can be stated as follows : In pursuance of the information collected by the officers of the Directorate of Revenue, Intelligence, a surveillance was maintained by the officers on Coast Guard Vessel O.G. 'VIGRAH' in the sea off Karwar for a suspect Arab Dhow carrying foreign silver to smuggle into India. During surveillance around 23.00 hours on 25-9-90, the officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour. On suspicion the officers signalled with loud speakers and search lights to stop the said Dhow, but instead of stopping, the Dhow started speeding away in the opposite direction. Seeing this, the officers fired in the air and warned the crew on the Arab Dhow to bring it alongside the ship. Thereafter the Dhow stopped and came alongside the coast guard ship and the officers from the coast guard ship boarded the Dhow. On examination, the officers found 150 packages containing contraband silver ingots on board. There were nine persons on board. The silver ingots were seized and those nine persons were escorted by the coast guard ship to Mole Station, Ballard Pier, Bombay. The silver packages were unloaded in the presence of 2 panchas and the 9 persons were arrested. The total quantity of the contrabands was weighing 4738.901 kgs. and valued at Rs. 3,31,72,507/-. Besides the contrabands on a rummage the officers recovered 17 empty unused cloth jackets generally used for packing contraband gold with 4 documents and 11 seaman cards from the Dhow. The officers seized the silver in the reasonable belief that it was smuggled into India and hence liable for confiscation under the Customs Act, 1962. The other articles were also seized.
(3.) Separate statements were recorded from all those 9 persons under S. 108 of the Customs Act. None of them had any document to prove the illicit import of the seized silver. Of the 9 persons, one by Name, Sajid Ali Abdul Rehman Qureshi stated in his statement that in the first week of July, 1990 he met his Pakistani friend Usman at Haji Ali and requested him a job. Two days thereafter he met him while in the company of the detenu. The detenu offered him a job of piloting a vessel from Dubai to Indian coast carrying contrabands, which he accepted on promise of a handsome amount. The said Sajid met the detenu at the latter's residence and handed over his passport to the detenu two or three days thereafter. The detenu handed over his passport and airlines ticket. He also gave some Dollars and Indian currency. As instructed by the detenu Sajid went to Dubai and met the detenu in Hotel Orient; that the detenu taking Sajid went to Hamaria Port and boarded a vessel. At that time Sajid found silver bricks packed in gunny bags being loaded on the vessel. The detenu gave a walkie-talkie and gave his coded words. On 19-7-90 the detenu saw Sajid and others off the shore with his instructions to meet him. He also gave Sajid a telephone number 225767 for contacting Usman on his return for delivering the silver consignment. It was only during the import of contrabands Sajid was caught along with 8 others. On the basis of the above statement, the detenu was apprehended by the Revenue Intelligence. When the detenu was interrogated, he admitted his involvement and also gave information about his past activities of smuggling of goods. As the details of all the statements are well set out in the grounds of detention, it is unnecessary for us to proliferate the same in this judgment. The detaining authority on the materials placed before him drew, his requisite subjective satisfaction and passed this impugned order of detention. The detenu specifically retracted his statement which was also considered by the detaining authority while passing the impugned order. The detenu was unsuccessful in getting the bail order. However, the detaining authority observing that persons who were charged with smuggling are generally granted bail, decided to pass the order of detention in spite of the fact that the detenu, to his knowledge, was in judicial custody. The detention order was served on the detenu on 26-10-1990 while he was in judicial custody. On 19-11-1990 a declaration under S. 9(1) of the Act was made and the same was served on the detenu on 8-12-90.;