DAVE, J. - (1.) THIS Habeas Corpus Writ Petition is filed challenging the legality of the detention order, dated June 4, 1985, passed under Sec. 3 (1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1947 (hereinafter referred to as "the Act"), on which date two persons, namely, Sitaram Somani and Om Prakash Soni, the petitioner, were detained by two separate orders but having close association and implicating one another in the act of smuggling, both the persons were arrested on the same day, i. e. , January 1, 1985. and were released on bail by a single order. Both after granting bail, were detained under the aforesaid Act and filed separate Habeas Corpus Writ Petitions. D. B. Habeas Corpus Writ Petition No. 1425/85 was heard and disposed of by a Division Bench consisting of S. C. Agrawal and Mahendra Bhushan Sharma JJ. vide their order, dated September 25, 1985, while this Habeas Corpus Writ Petition has come before us. Intact both the Habeas Corpus Writ Petitions ought to have been decided together and we have asked the Registry to put this case before the same Bench but we were informed that their Lordships were sitting in the Single Bench and, therefore, we have heard the arguments separately in this petition and a separate decision is given though in both the cases the material placed is almost identical and infact it is a case where the orders of detention of either of the two are passed on the statements and recoveries from both of them and a case of conspiracy as well. Yet we are deciding this case separately on its own merits and on the arguments which have been advanced before us by Mr. C. K. Garg, learned counsel for the petitioner, though we have the benefit of having before us the decision of their Lordships in Sitaram Somani's case where most of the grounds are common.
(2.) THE petitioner is a resident of house No. 1340. Chadkiya Marg, Subhash Chowk, Jaipur and according to him he is carrying on business of goldsmith which is his family business. On January 1, 1985, the officers of the Customs Department of the Government of India apprehended him while he was starting his Scooter which was standing outside the house of one Sitaram Somani and this Scooter when was searched, 8 gold biscuits with Chinees origin mark were recovered from there. THEy sealed all the 8 gold biscuits, the scooter and also a slip of paper found on person of the petitioner wherein some figures were written. On the same day the search was made at the house of Sitaram Somani and he too was arrested. During the search of his place 36 gold biscuits of foreign origin and 12,100 United Slate Dollars were recovered from him. THE petitioner, Om Prakash, as well as Sitaram Somani both were arrested on the same day. THE petitioner's statement under section 108 of the Customs Act was recorded on January 1. 1985, and January 6. 1985. On January 7, 1985, the petitioner was remanded to judicial custody by Addl. Chief Judicial Magistrate (Economic Offences) and his bail was granted by this court on January 17, 1985, and consequently he was released from jail on January 18, 1985. THE petitioner's case is that on the same day, i. e. , date of release he wrote a letter to the Collector, Customs informing that his statement under section IC8 of the Customs Act has been recorded under duress and signatures on panchnama have been obtained forcibly at the point of revolver, and that he was not concerned with the alleged seizure of gold and foreign currency. THE petitioner received summons from the enforcement officer under sec. 40 of the Foreign Exchange Regulation Act which was replied by him and the correspondence was also going on with Asstt. Collector (Preventive) Customs but in the meantime on June 4, 3 985, the impugned order of the State Government detaining the petitioner under COFA POSA Act was passed and consequently he was detained on June 5, 1985. He was furnished the grounds of detention on June 10, 1985, against which he made a representation. According to him representation was not complete as he had not been supplied with all the documents he required for making an effective representation against the order of detention. His wife also moved a representation to the State on July 9, 1985. Some additional documents were supplied to the petitioner by the State Government and his representation was rejected on July 11, 1985, and that of his wife on July 26, 1985. THEreafter the case was referred to the Advisory Board for its opinion which consisted of three Hon'ble Judges of this Court constituted under the provisions of Sec. 8 of the Act. THE petitioner was produced before the Advisory Board and after hearing the petitioner the Advisory Board sent its opinion wherein it expressed the opinion that there was sufficient cause for the detention of the petitioner. THE petitioner's case in the petition is that ha has been falsely implicated in the case and he is not involved in any illegal activity of importing gold. His statement is that he was concerned neither with the gold biscuits, nor the scooter. He denied the ownership and possession of the scooter and the gold biscuits. He does not know any person in the name of Sitaram Somani nor he has gone to his place at any time on January 1, 1985. It is submitted that he does not know any Prabhu Dayal of Fatehpur nor he ever sold smuggled gold to any person or to Chandra Prakash as alleged. THE petitioner's case is that he has wrongly been shown to have been arrested on June 4, 1985. but he, has, infact been, arrested on June 5, 1985, and the documents have been antedated. His submission is that Annex-ures R. 2 and R. 3 have been subsequently prepared as is evident from their perusal and further that on even plain reading of the grounds of detention it is made out that they are based on non-application of mind as there are factual errors, it is submitted that so far as ground No. 1 of detention is concerned, it has been mentioned that gold biscuits of foreign marks were recovered from the Dickey of the Scooter No. RNB 5386 but it has not been considered that this scooter does not belong to the petitioner and there is no material on record to connect the scooter with the petitioner. It is submitted that other grounds also mainly 2, 3, 4 and 5 are based on incorrect facts and the customs authorities have deliberately and malafidely mis-lead the Government. It is submitted that the petitioner has wrongly been termed as a smuggler and it is erroneous to say that he is habitual and professional smuggler. THE petitioner's case in the alternative is that it is one solitary instance which, at best, is established regarding possession of 8 gold biscuits and the fact that he is engaged in this business for last two years is factually incorrect and there are no good grounds of detention and the petitioner is entitled to be released by issuing a writ of habeas corpus. The State Government in its reply accompanied with the affidavit of Shri S. C. Pagoriya, Deputy Secretary, Home (Security), Government of Rajasthan said that the customs authorities were having definite information that the petitioner was indulged in smuggling activities pertaining to gold from Hongkong and he has a link in the conspiracy and it was on a definite source information that they layed a trap and searched and sealed the scooter of the petitioner wherefrom 8 gold biscuits of Chinees origin were recovered. The chit recovered from him when deciphered gave important informations and thereafter Sitaram Somani's premises were searched, 36 gold biscuits and more than 12000 United State Dollars were recovered from his place. He made voluntary statements under section 108 of the Act and the story of retracted statements are an afterthought. It is submitted that all the materials have been collected and considered and it was after full satisfaction that his detention order was passed. It is submitted that there is no illegality or false mentioning of facts in the grounds of detention. The Union of India by separate reply has come with a specific case that the custom department had recorded the statement of one Sudhir Kumar Khandelwal who was the owner of the scooter RNB 5386 who had categorically stated that he had sold the said scooter to the petitioner in June, 1982. It stated that it is not a case where at a subsequent stage some search might have been made and the gold recovered but the petitioner was apprehended on the spot while he was starting the scooter and the panchnama of the recovery was made then and there. It is submitted that the statements given by the petitioner are voluntary. Respondents have submitted that the petitioner belongs to an international gang of smugglers, which is involved in gold smuggling activities. It is submitted that the petitioner is not a petty shop keeper as told by him. ' He is having a telephone under OYT quota. He also maintains a car and a scooter. The Union of India has supported the detention of the petitioner. We have heard Shri C. K. Garg on behalf of the petitioner and Shri M. I. Khan on behalf of the State and Shri B. P. Gupta on behalf of Union of India. . The petitioner assailed the legality of the detention order on several grounds. It is submitted that the petitioner has not been supplied with the documents which were made available to the detaining authority and the selective process has been used which is not permissible. It is submitted that neither the grounds were supplied to the petitioner on June 5,1985 nor the order of detention was served at the time of detention. It is submitted that in fact (here was neither order of detention nor the grounds of detention existed when the petitioner was detained on June 5, 1985. It is submitted that Annexures R. 2 and R. 3 are subsequently manufactured documents. They are anti-timed and in cases of detention the person an expost facto order is bad in law. It is submitted that Annexure R. 3 has been issued c/o Superintendent, Central Jail, Jaipur on June 4, 1985, on which date the petitioner was not even in detention and the sentence, "that you have been detained in Central Jail" is patently wrong How these two narrations would have crept in the document unless it is subsequently prepared. A perusal of the aforesaid documents goes to show that while giving the grounds of detention and passing the order of detection a wrong information has been supplied to the detaining authority It is then submitted that the petitioner prayed for additional documents vide annexure 21 but he had not been supplied any documents and because of non-supply of the documents he could not make any effective representations and it vitiates the detention order. Regarding affording reasonable opportunity of making an effective representation it is submitted that it has been denied on various grounds such as all documents have not been supplied, the petitioner was not allowed to meet relations and lawyers despite requests and documents were not supplied till July 9, 1985. It is submitted that it is not known as to who was the defaming authority and whether the detaining authority applied its mind to the representation and further that it was on July 11, 1985, that the detaining authority rejected the representation on the day when the Advisory Board met. It is then sub mitted that the Chief Minister did not apply his mind as there are factual errors in the grounds of detention. It is then submitted that reasonable opportunity was not afforded for defending the petitioner before the Advisory Board Further argument of the learned counsel is that the retracted statements of the petitioner and Sitaram Somani have not been considered and non-mentioning of the retracted confession greatly prejudiced the case of the petitioner. It is further submitted that neither warrant of arrest was issued in accordance with the Code of Criminal Procedure nor the procedure followed throughout and even reasons for detention was not told. In this connection attention has been drawn towards the telegram sent by the wife, Annexure 17, and lastly it is submitted that the affidavit of the detaining authority has not been filed. Prabhu Dayal not having supported the department's case the only fact remains at best is the single act on the part of the petitioner when scooter was searched and an isolated case cannot bring home within the definition of a smuggler so as to call for his detention. His submission is that detention under sec. 3 (1) of the Act is completely vitiated. Learned counsel for the petitioner in support of his submission placed reliance on Smt. Icchu D vi Choraria Vs. Union of India (1); Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra (2); Asha Devi Vs. K. Shivraj (3); Kirti Kumar Chamanlal Kundaliya vs. Union of India (4) and Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra (5 ).
(3.) REPLYING to the aforesaid arguments the learned counsel for the State, Mr. M. I. Khan, submitted that there is no provision in COFE POSA where documents are required to be supplied to the petitioner. It is only because of Art. 22 (5) of the Constitution of India that the documents are given else grounds also are to be supplied He has drawn the attention of the court towards word 'grounds" as occurs in Art. 22 (5) of the Constitution and 3 (iii) of the Act. He has also drawn the attention of the court to Art. 22 (1) and submitted that the information of detention has only to be furnished to the person detained and not to the wife, brother or children as argued by the learned counsel for the petitioner. The learned counsel also placed reliance on Art 22 (6) and submitted that the respondents are not obliged to supply documents which are against public interest such as informal information etc. It is submitted that the grounds of detention have been divided into two categories and the basic facts have been mentioned therein. He said that the case of detention of the petitioner is clearly made out even from his own statement and the statement of Sitaram Somani. He has submitted that the court has to consider the social status of the petitioner who was an ordinary person but after including in smuggling activities owned a telephone in OYT scheme and maintains a Car and Scooter as has his connections with Sitaram Somani who and the members of whose family had been regularly visiting Hongkong and also the fact of three dealings with Sitaram Somani and not one. It has been admitted that thrice the deal was struck between the two once one biscuit was purchased, second time three biscuits were purchased and third time eight biscuits were purchased. This all show that there had been a continuous dealing between the parties Ft is submitted that the petitioner's action has to be viewed in the light of fundamental duties as envisaged under Art. 51 (a) of the Constitution of India. It is submitted that Sitaram Somani and members of his family had visited Hongkong so frequently and their repeated visit and subsequent transactions had been at the behest of Om Prakash Soni and, therefore, there is direct relationship between Sitaram Somani and Om Prakash Soni. It is further submitted that as and when the meetings had taken place between two they always met at the hotels and three transactions as mentioned above, had taken place between them which clearly go to show that the petitioner was indulged in the act of smuggling within the meaning of law. It was further submitted that all relevant papers had been given to the petitioner for making representations and sufficient opportunity had been provided to him for placing its case before the Advisory Board who has confirmed the order of detention issued. Replying to the arguments advanced on behalf of the State and the Union of India, the learned counsel for the petitioner submitted that Annexure R. 3 on which the emphasis has been made and which is the basis for detention is useless document and is bad in law. It is submitted that the same is malafide also. It is submitted that making the mention of a fact which is not a fact makes the documents worthless. It is submitted that nothing has been stated in the reply filed on behalf of the State in reply to the attack made by the petitioner on this document and reiterated in the rejoinder. It is submitted that even while the reply was filed to the rejoinder the respondents could not meet the challenge made to Annexure R. 3. It is further submitted that Sitaram Somani and Om Prakash Soni are known to each other only after July. 1984 and not prior to it and. therefore, mentioning that the petitioner is engaged in smuggling activities for last two years is a mith and is not substantiated by any evidence. Thus, the ground is based on non-application of mind. It is further submitted that the copy of the retracted confession of the petitioner was not supplied and that not having been made available making a proper representation, the peti-tioner's case has been prejudiced. He has submitted that the petitioner categorically raised this ground in his petition and then again in rejoinder but no reply has been filed specifically on these points. It is submitted that all the replies submitted are evasive. It: is fu:ther submitted that the disposal of the representations do not indicate that the retracted confession was ever considered. It must borne out from the order that the same was taken note of. Reliance was placed on Asha Devi vs. K. Shivraj (supra) Kamal Narain Kapoor vs. Union of India (6) and M/s Ghagwoti Devi vs. Union of India (7) (Delhi ). On the strength of the aforesaid authorities it is submitted that the retracted confession must be noticed and taken note of and must be explicitly borne out from the order of detention. It is submitted that even a word has not been said on behalf of the State Government that the same has ever been placed for consideration. It is then submitted that some act or omission on the part of the petitioner is a condition precedent for bringing the case within the definition of smuggling as given under the Act. The reliance has been placed on Shew Pujun Indrasan Ltd. vs. Collector of Customs (8) and Babulal Amthalal Mehta vs. Collector of Customs, Calcutta (9) We have heard the learned counsel for the parties and have carefully gone through the case law cited and the record of the case. ;