Bhagwati, C. J. - (1.) This is a writ petition filed by the petitioner for a writ of habeas corpus praying for revocation of the order of detention dated 11th April 1985 passed by respondent No. 2, Joint Secretary to the Government of India, against the petitioner under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act). We heard the writ petition on 18th September 1985 and after hearing the arguments advanced on both sides, we passed an order on the same date dismissing the writ petition. We now proceed, to give our reasons for making that order.
(2.) On the basis of information received by them, the Customs Officers at Panitanki Land Customs Station intercepted an auto-rickshaw bearing No. WGY-9854 coming from Nepal at about 8 a.m. in the morning of 20th November 1984. There were four occupants in the auto-rickshaw, namely, the petitioner, Raj Kumar Gupta, Prem Prasad Bothari, and Akadeshi Bahadur. These four occupants as well as the driver of the auto-rickshaw were searched by the Customs Officers in the presence of independent witnesses and as a result of the search, no contraband goods were found in the possession of the other three occupants and the driver of the auto-rickshaw but from the pocket of the trousers worn by the petitioner, two pieces of foreign marked gold in the shape of round tablets weighing 373.800 gms. and valued at Rs. 74760/- were recovered and they were seized under the Customs Act. The petitioner was immediately arrested and on interrogation, he filed a written statement on the same day stating that he had been unemployed for a long time and that he was introduced in the business of purchase and sale of foreign marked gold by one Prakash Pincha and that on 16th November 1984, he left Kathiar by bus and arrived in Kathmandu at 6 a.m. on 18th November 1984 and stayed at Kanji Lodge in Kathmandu and as per prior arrangement, he contacted one Dena Lal Aggarwal on Telephone No. 344889 and Dena Lal Aggarwal thereupon came to Kanji Lodge along with the requisite quantity of gold and he took delivery of gold from Dena Lal Aggarwal and paid him Rs. 70400/- in Indian currency and thereafter he left Kathmandu at 1800 hrs. on 19th November 1984 reaching Kakarbatha opposite Panitanki Land Customs Station at 7.30 a.m. on 20th November 1984 and boarded auto-rickshaw bearting No. WGY-9854 which later on picked up the other passengers and ultimately the auto-rickshaw was intercepted and he was searched resulting in the seizure of two pieces of foreign marked gold which were in the pocket of his trousers. The petitioner was produced before the Sub-Divisional Judicial Magistrate, Siliguri on 21st November 1984, and on an application made by him, he was released on bail by the Sub-Divisional Judicial Magistrate on 5th December 1984. The second respondent who is the Joint Secretary to the. Government of India thereafter passed an order dated 11th April 1985 under Section 3 of COFEPOSA Act directing that the petitioner be detained and kept in custody in the Central Jail, Patna. The order of detention recited that it was passed with a view to preventing the petitioner from smuggling goods. The grounds on which the order of detention was based were supplied to the petitioner immediately on his arrest under the order of detention. The petitioner made a representation dated 17th May 1985 against the order of detention but the representation was rejected by the Central Government on 23rd May 1985. The case of the petitioner was placed before the Advisory Board which gave the opinion that there was sufficient cause for the detention of the petitioner and on receipt of this opinion of the Advisory Board, the Central Government by an order dated 6th June 1985 confirmed the order of detention and directed that the petitioner be detained for a period of one year from the date of his detention, namely, 23rd April 1985. The petitioner thereupon preferred the present writ petition challenging the validity of the order of detention and seeking a direction that he may be released from detention.
(3.) Though grounds were taken in the writ petition only three were seriously pressed by the learned counsel appearing on behalf of the petitioner. The first ground was that the order of detention was based on the solitary incident in which two pieces of foreign marked gold were recovered from the pocket of the trousers of the petitioner on 20th November 1984 and apart from this incident there were no other incidents showing that he was habitually smuggling gold. The second ground was that considerable time had elapsed between the date when he was found to be carrying two pieces of foreign marked gold and the date of the order of detention and this long lapse of time showed that the order of detention was vitiated by mala fides. And the last ground was that the order of detention was made with a view to circumventing or bypassing the criminal prosecution instituted against the petitioner and the detaining authority had not applied its mind to the vital aspect that the power of detention cannot be used to subvert, supplant or substitute the punitive law. We do not think any of these three grounds can be sustained.;