- (1.) The matter relating to the instant writ of habeas corpus resorted to by Smt. Gita Mahensaria the wife of the detenu Sri Anil Kumar Mahensaria has been assigned to me by the Hon'ble the Chief Justice on difference of opinion of the Hon'ble Mr. Justice Nure Alam Chowdhury and the Hon'ble Mr. Justice Arunabha Barua. The order of detention bearing No. 673/56/2002 CUS-VIII dated 20th November, 2002 passed by Shri P. C. Jha, Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue (COFEPOSA UNIT), New Delhi under Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (as amended) is under challenge. By the application under Article 226 of the Constitution of India, registered as W.P. 8487(W) of 2003 Smt. Gita Mahensaria has prayed for issuance of writ of habeas corpus for setting her husband the detenu Anil Kumar Mahensaria at liberty by quashing the order of detention.
(2.) Pursuant to the said order of detention dated 20th November, 2002 the detenu Anil Kumar Mahensaria nicknamed Laddu Babu was detained in the Presidency Correctional Home on and from 6th May, 2003.
(3.) The facts leading to filing of the present writ petition may be summarised thus :- On 8.1.2002 a specific information was received in the Special Investigation Branch, Kolkata Customs, that several EDI and Manual Shipping Bills filed through the Customs, House Agent. M/s. S. K. Kanjilal in the last week of December, 2001 and first week of January, 2002, indicated that on 5.1.2002 a few Kolkata-based exporters exported Ready-made garments, Ball-pens and Side-wheels grossly misdeclaring the quantity, description and value with an ulterior motive to avail undue draw-back worth crores of rupees. It is alleged that on the basis of the said information seven containers (7x20') and one container (1x40') were off-loaded from the vessel M. V. Kota Bintang at Visakhapatnam Port for detailed examination. Out of the said seven 20' containers, three containers contained export consignments of M/s. Secure International and four containers contained export consignments of one M/s. Shyam Sunder Enterprise and the remaining one 40' container contained consignments of the said M/s. Shyam Sunder Enterprises and one M/s. Vidur Impex, which is the partnership firm of the detenu Anil Kumar Mahensaria. It is also alleged that on examination of the said goods, the information was found corroborated, as not only substantial shortages in quantify were detected in each of the said containers but also the goods prima facie appeared to be highly over-invoiced and misdeclaration of description was also detected in respect of certain items. It has been specifically alleged that in fact there was gross difference in the actual quantity and quality of the garments, ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in the containers at Vishakapattnam Port, establishing the sole intention of acquiring huge amount of foreign currency. Pursuant to the seizure of the aforesaid export consignments, investigation was started by the Kolkata Customs Authorities and during investigation, as per statement of one Sri Binoy Majumdar, a partner of Customs House Agent Company of M/s. S. K. Kanjilal on 19.4.2002 and 15.2.2002 and the job-register of Customs House Agent, showed the name of Laddu Babu, nick name of Anil Mahensaria (the detenu) in the column of party name against consignment of M/s. Shyam Sunder Enterprise and it suggested prima facie, the active involvement of the detenu Anil Mahensaria in the aforesaid export effected in the name of M/s. Shyam Sunder Enterprise. It has also been alleged that the statement dated 24.7.2002 of another accused Rajen Ghosal in respect of the same matter recorded in jail custody also shows active involvement of the detenu Anil Mahensaria in the aforesaid exports effected under the name of M/s. Shyam Sundar Enterprise. It has been also alleged that it appears from record that the detenu Anil Mahensaria is a habitual revenue offender and has at least 6 cases of evasion of customs duty at various stages of proceeding involving loss of revenue to the tune of more than Rs. 10 crores.;