- (1.) GIRIDBAR Malviya, J. As these two petitions are based on identical facts and grounds and as they arise against the same activity and as the petitioners have also been detained by identical order and grounds of detention, they are being disposed of the common judgment.
(2.) BOTH the petitioners-Sanjeev Kumar Jain and Ashok Kumar Agarwal were detained in pursuance of an order dated 9-3-89 passed by State of U. P. against them us. 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) Where as the order of detention was served on Sanjeev Kumar Jain on 17-5-89, Ashok Kumar Agarwal was detained on 9-5-89. The grounds of detention on which the detention order was based disclose that on 3-1-89 at about 7. 45 p. m. the Custom and Central Excise Authorities of Saharanpur with help of police, if Police station Nanauta had intercepted a Maruti Car DDC 5513, driven by one Kishore Kumar son of Sri Harish Chandra in which the two petitioners and one Sunil Kumar also sitting. The aforesaid persons were brought to the office of the Collector of Customs and Central Excise, Saharanpur. On the search being made of the two petitioners in the presence of two independent witnesses, from the shirt pocket of Ashok Kumar Ten Gold Ginnies bearing mark 'victoria D. G. Britannia Reg. F. D. and from the pocket of his pant five golden Churi along with a Katcha Parcha were recovered, which were claimed by Ashok Kumar to be four Churi and one Kangan and not five Churi. From the socks of Ashok Kumar a gold biscuit (bar) of Chinese origin weighing 250 gms. was also recovered. On the car being searched, from the iron box beneath the driver's seat, one cotton bag (Thaila) was recovered containing silver ornaments along with a kachhaparcha. In the silver ornaments, there were two packets. In one packet wrapped in a small news paper piece mark 9499 No. 5000 (Chinese golden Bars) written in English and Chinese and from another paper packet 7 golden biscuits were recovered. From another iron box placed below the front seat of the car, a hard-board box was recovered from a cotton bag containing 15 packets of 100 rupee notes and from one envelope containing three packets of Rs. 100. 00 notes totalling Rs. 1, 80, 000. 00 were recovered. Purity and weighment of the recovered articles was not done by Surendra Kumar Jain, approved Gold values, Sarrafa Bazar, Saharanpur and on finding that the said articles were retained in violation of Gold Control Act, 1968 as also the Customs Act, 1962, the recovered gold, the ornaments and cash were seized. After getting the recovered articles sealed in three separate packets the specimen seal was also put on the recovery memo. The car in which the said articles were transported was also seized for transporting the said commodi ties. On being interrogated, Sanjiv Kumar Jain told the officials of the Central Excise Saharanpur that from his personal search, nothing was recover ed but he admitted the recovery of the articles mentioned above from the said car. It was also admitted by Sanjiv Kumar Jain that the golden biscuits carried by him belonged to one Anuj Kumar, who had required him to get these biscuits, for which he was paid Rs. 100. 00 for every trip. He also disclosed that he had prior to the incident of 3-1-89 also transported golden biscuits for Anuj Kumar Jain on 3 occasion Anju Kumar in his statement dated 12-1-89, inter alia, told the officials of the Central Excise Department Saharanpur that he had no knowledge of the recovery of the gold on 3-1-89 because on that day he had gone to Mussorie for convassing in the election. Anju Kumar had also stated that he knew Sanjiv Kumar Jain for about 3 years and attributed that Sanjiv Kumar Jain had nominated him in his state ment due to enmity. Ashok Kumar Agarwal in his statement made before the officials of the Central Excise, Saharanpur had admitted that from his search ten golden Ginnies, four Churi, one Kangan, one gold biscuits gold bar were recovered. He also admitted the recovery from the car of the silver ornaments, gold bar, gold biscuits and Rs. 1, 80, 000. 00. The Car driver Kishore Kumar also in his statement before the officials of the Customs Department, inter alia, admitted the recovery made from the car and so was the statement made by Sunil Kumar on 3-1-89, who also admitted all the recoveries being made at the time cf the search. He also admitted that the recovery memo was prepared. However, Sunil Kumar while denying any knowledge in respect of the golden biscuits recovered from the car admitted that on being searching Rs. 4558. 40 Paise one bank draft of Rs. 66, 018. 00 and 10 silver coins were recovered. He also admitted that from the search of vehicle one piece of Chinese gold bar weighing 187. 200 gms, one piece golden biscuit Johnson Mathey London Mark weighing 116. 600 gms, one piece golden biscuit of credit Swiss Marking 116. 600 gms, one piece golden biscuit of orgin marking weighing 200. 00 gms, two gold biscuit of 'swiss Bank Corporation marking weighing 200. 00 gms, one gold bar with Chinese marking weighing 37. 500 gms along with Rs. 1, 80, 000. 00 and silver ornaments weighing 4. 049 kgs were recovered from the iron box, fitted under the front seat of the car. On the basis of the above mentioned material, the government was satisfied that the petitioners could indulge in the transport, concealment and in keeping the smuggled goods and hence with a view to prevent the petitioners from indulging in such activity, it was necessary to detain them under the provisions of COFEPOSA, with the result that the order of detention had been issued against them. After the petitions had been filed in the High Court, notices were issued. Counter-affidavit has been filed on behalf of the State Government. A rejoinder-affidavit has also been filed. However. in the case of Ashok Kumar Agarwal (Writ Petition No. 12118/89) a supplementary affidavit, its counter-affidavit and rejoinder-affidavit were also exchanged. We have heard Shri G. S. Chaturvedi in support of the petition of Sanjeev Kumar Jain and Shri Amar Saran on behalf of Ashok Kumar Agarwal and Shri Prem Prakash, learned Additional Government Advocate in the said petitions on behalf of State of U. P. Both the counsel for the petitioners formulated the following points and have made their submissions in support of them. The points are. (1) That the alleged confession made by the petitioners on 3-1-1989 had been retracted by means of a telegram sent to Collector Central Excise, on 5-1-89 at 8 p. m. (2) That the relevant material as also the documents demanded by the petitioner through their representative to enable the petitioners to make effective representation were not supplied with the result that they could not make an effective representation rendering their continued detention bad in the eye of law. (3) There has been breach of Section 3 (2) of COFEPOSA and. (4) That there has been delay in the disposal of the representation.
(3.) SO far as the first plea is concerned, it may be noted that the petitioners were apprehended by the Custom and Central Excise Officials of Saharanpur. The copy of the telegram alleged to be sent on 5-1-89 has been filed in the case of Ashok Kumar Agarwal alongwith a supplementary affidavit. The saidftelegram reads as under : Collector Central Excise Meerut, Central Excise Officers on 3-1-89 took statement by beating, implicated falsely Ashofc Kumar Agarwal. The certified copy of the above mentioned telegram appended with the supple mentary affidavit neither discloses the place of its origin nor does it indicate as to Central Excise Officers of what place or district took statement by beating Ashok Kumar. It is also not disclosed as to who was Ashok Kumar Agarwal and where did he reside. In the reply to the said supplementary affidavit filed on behalf of the respondents, the receipt of any such telegram has been denied. It is quite obvious that even if any such telegram would have been received in the office of the Collector, Central Excise, Meerut, then in the absence of any details or particulars about the person and place as to which of the Central Excise Officers had obtained statement etc. , the said telegram was of no con sequence. In the petition of Sanjiv Kumar Jain, neither any copy of the telegram has been appended nor has it been shown as to what was the message, which had been sent to the Collector, Central Excise, Meerut. In view of the facts mentioned above, the plea of the petitioners that they had retracted the confession and this being not noticed by the detaining authority has no legs to stand. So far as breach of Section 3 (2) of COFEPOSA is concerned, the petitioners rely on the counter affidavit filed on behalf of the respondents which demonstrates that the Chief Minister had approved the proposal to detain the petitioners on 2-3-89. Without raising any specific plea in this regard in this petition, it is said by the petitioners that in view of this disclosure in the counter affidavit, the date of order of detention should be treated 2-3-89 and not 13-3-89 on which date the detention order was issued in the name of Governor by the Joint Secretary Home Confidential Section of the State of Uttar Pradesh. It is not possible to accept this contention of the petitioners as unless the order is notified and issued, the mere fact that a decision has been taken to issue such order, the order does not see the light of the day. The petitioners wanted to canvass that as the order of detention it self should be treated to be of 2-3-89, then the said order having been reported to the Central Government on 16-3-89, there was non-compliance of Section 3 (2) of COFEPOSA. It would be relevant to mention here that as per affidavit of Shri Kuldeep Singh filed on behalf of Union of India, the date of the order of detention is 13- 3-89 and the same having been reported to government within 10 days, there was no violation of the provisions of Section 3 (2) of COFE POSA. However, since we do not agree that the order should be deemed to be dated 2-3-89 and not 13-3-89 we do not find that there has been any non-compliance of the provisions of Section 3 (2) of COFEPOSA. This contention of the learned counsel for the petitioners also fails.;