Criminal Writ Petition No.2352 of 2007

14th March, 2008

Petitioner Counsel: Mrs. A.M.Z. ANSARI
Respondent Counsel: Mr. D. S. MHAISPURKAR

Cases Cited:
Rameela Suresh Mehta Vs. The State of Maharashtra, Cri.W.P. No.385/1991, dt.:29-08-1991 [Para 5]
Madhukar Fulchand Doshi Vs. The State of Maharashtra, Cri.W.P. No.923/1994, dt.:20/21-04-1995 [Para 5]

JUDGMENT

BILAL NAZKI, J.:- This petition is filed by the father-in-law of the detenu seeking quashing of an order of detention passed by the respondent No.2 in terms of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), on 1.4.2006. The detenu was arrested in consequence of this order of detention on 22.11.2007. Counter affidavit has been filed by the Respondent No.2 and we have heard the learned counsel for the parties and we have also perused the record.

2. The grounds of detention supplied to the detenu disclose that on specific information from Intelligence, a blue coloured bag, in the make-up area for Gulf Air Flight No.GF 057 which had to leave for Bahrain from Chhatrapati Shivaji International Airport, Mumbai on 18.11.2005, was found. This baggage was found having a Gulf Airways Baggage Tab No.GF 341885, the passenger's name shown on the tag was Shri. Haneef. Once the bag was taken into possession, the concerned Authorities located Shri. Haneef who was travelling by the flight. Shri. Haneef was questioned about the baggage. He denied having any checked in baggage at all. He produced his Boarding Cards substantiating his claim that he had no checked in baggage and he had a connected flight to Dubai from Bahrain. On being satisfied that Shri. Haneef had not booked the baggage, efforts were made by the Authorities to find the person who had booked the baggage. Therefore, they also contacted Gulf Air staff and also the in-charge person who had issued Boarding Cards. She was identified as Ms. Shamim Khan. Ms. Shamim Khan also identified Shri. Haneef as a passenger and she also said that Shri. Haneef had no checked in baggage. The bag was found carrying Indian Currency amounting to Rs.69,94,000/-. On 18.11.2005 statements were recorded of Shri. Haneef Mohammed and Ms. Shamim Khan. Ms. Shamim Khan stated that the lady had approached her and she had told her that she had baggage which could be sent in somebody's name because she had extra baggage. Therefore, she booked the baggage in the name of Shri. Haneef who had no checked in baggage. On earlier four occasions she had sent the baggages in similar fashion. She did not know the lady but she helped the lady because she had received a phone call from her friend. She also did not know the particulars of that friend except phone number. She had received a phone call around 1.30 a.m. on 18.11.2005 and the request had been made to her to help the lady as regards excess baggage. She did not kept her colleagues/superiors informed abut her sending the bag in such manner. Once this phone number came to the knowledge of the respondents, they found that this phone number belongs to Gaffar Africawala and found his address through the service provider and it was discovered by them that the detenu who was son of Gaffar Africawala was using the phone and he was responsible for smuggling out huge cash from India. Since they could not locate the detenu immediately but on the basis of the information received they got coloured photo of the detenu, photo copy of his passport from the bank account and also a photo copy of his statement of bank account. All the three i.e. the coloured photograph, the photo copy of passport and photo copy of statement of bank account was shown to Ms. Shamim Khan who was otherwise claiming that she did not know any particulars of the detenu and only knew his telephone number, but identified him. She identified the photographs as photographs of the detenu and put her signature on two documents i.e. original colour photograph and also photo copy of statement of bank account. In this manner, the detenu was arrested and the Detaining Authority found that these circumstances were sufficient to detain the detenu in terms of Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in order to prevent detenu from smuggling.

3. The learned counsel for the petitioner has challenged his detention mainly on two grounds. Firstly, that there was no material before the Detaining Authority to come to a conclusion that the detenu who was being detained by him was the same person who had phoned Ms. Shamim Khan, whose photograph was identified by Ms. Shamim Khan because although the copy of the photograph was with the Detaining Authority, he had also a photo copy of the passport, he had also before him photocopy of the statement of bank account but the identification at the back of the two documents was not before the Detaining Authority. Therefore, the Detaining Authority was not in a position to come to a conclusion that Ms. Shamim Khan had identified the detenu as the person who had phoned her. To counter this argument, learned APP submits that though it is true that the identification part of photograph was not before the Detaining Authority but statement recorded under Section 108 in which Ms. Shamim had stated that the photograph on the photocopy of the passport and the photograph on the photocopy of the statement of bank account were of Firoz, were before the Detaining Authority. Therefore, there was sufficient material before the Detaining Authority to come to a conclusion that the detenu he was ordering to be detained was the same about whom the statement had been made by Ms. Shamim Khan.

4. Second argument by the counsel for the petitioner is that the part relating to identification which includes signature of attestation by Shamim Khan was not supplied to the detenu and therefore his valuable right of making effective representation and saying whatever he could have with respect to attestation of his photograph by Shamim Khan could not be made by him. Earlier contention which is made by the learned counsel that detaining authority had no material before him regarding identification of the detenu is covered by two judgments of this Court.

5. Two unreported judgments which have been relied upon are (i) Criminal Writ Petition No.385 of 1991 decided on 29th August, 1991 [Rameela Suresh Mehta Vs. The State of Maharashtra & Ors.] and (ii) Criminal Writ Petition No.923 of 1994 decided on 20th/21st April, 1995 [Madhukar Fulchand Doshi Vs. The State of Maharashtra & Ors.].

6. In the first judgment, the Court held in paragraph 6 as under :-

"In our judgment, on the facts and circumstances of the case the photograph was a crucial document and failure to place it before the detaining authority vitiates the order of detention. For this reason, the order of detention is required to be quashed."

7. In the second judgment, the case was almost similar and in paragraph 30 of the judgment, the court held -

"... the said Ketan Shah referred to by all the witnesses is the same person as the detenu, there must be material on record to show that either the detenu was shown to these witnesses or the photographs which are of the detenu, are identified as of same Ketan Shah who was dealing with the witnesses. As stated earlier in fact the authorities very rightly took precaution of identifying the said Ketan Shah with reference to his photographs by different witnesses, but we are really startled that such an important document of vital importance is neither placed before the detaining authority nor supplied to the detenu."

8. Learned Counsel for the petitioner further submits that the order of detention itself is bad as everywhere it refers to alleged activities of the detenu as prejudicial activities but it has nowhere been stated as to they are prejudicial to what, and she submits that in terms of section 3, the Authority has to satisfy himself that the activities must be prejudicial to conservation or augmentation of foreign exchange or these activities should be connected to various acts including smuggling. Since we are quashing this order on the second ground mentioned hereinabove, therefore, we do not desire it necessary to address this argument in this petition.

9. For the reasons given above, we quash the order of detention and direct that the detenu Firoz Abdul Gaffar Africawala be released forthwith if not required in any other case. Rule is made absolute accordingly.

Rule made absolute.