IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2017 PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL & THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA W.P.H.C.No.98/2016 BETWEEN MOHAMMED TALHA AKRAMI, S/O MOHAMMED AKRAM MOHIDDEN, AGED 54 YEARS, R/AT FLAT NO. 302, ANIQ PLAZA, AZIZUDDIN ROAD, BANDAR, MANGALORE - 575 001. ... PETITIONER (By Sri KIRAN S.JAVALI, ADV. FOR Sri CHANDRASHEKARA K., ADV.) AND 1. ADDITIONAL CHIEF SECRETARY AND PRINCIPAL SECRETARY, GOVERNMENT OF KARNATAKA, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE - 560 001, BY SHRI SUBHASH CHANDRA.
2. GOVERNMENT OF KARNATAKA, BY PRINCIPAL SECRETARY, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE - 560 001.
3. SENIOR SUPERINTENDENT, CENTRAL PRISON, BANGALORE. ... RESPONDENTS (By Sri I.THARANATH POOJARY, AGA.) THIS WPHC IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING THE DETENTION OF SHRI FAZAL AKRAMI @ FAZLUR RAHMAN @ FAZAL, S/O MOHAMMEDD AKRAM MOHIDDEN, BY ORDER HD 2 SCF 2016 DATED 07.06.2016 (ANNEXURE A) AS ILLEGAL AND VOID ABINITIO.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.02.2017, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, B.S.PATIL, J., MADE THE FOLLOWING:
ORDER 1. Petitioner has filed this writ petition challenging the order of detention of his brother, Sri Fazal Akrami @ Fazlur Rahman @ Fazal (hereinafter referred to as ‘detenue’) dated 07.06.2016 passed by the Additional Chief Secretary, Government of Karnataka, Home Department, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [for short ‘COFEPOSA Act’] with view to prevent the detenue from committing act of smuggling of foreign currency and gold, on various grounds.
2. Facts involved in this case briefly stated are that, after gathering specific intelligence by the DRI, Bengaluru Zone Unit, to the effect that two Indian Nationals by name, Abdul Ghani and Hammed Ulla, would be boarding the Qatar Airways Flight QR 573 from Bengaluru to Dubai via Doha, at around 3.15 am on 09.12.2015 at Kempegowda International Airport and that they would be carrying foreign currency concealed in their checked in baggage without declaring the same to the Customs authorities, the DRI Officers intercepted them at the exit point of the Security Check area and on scanning the contents of the baggage and after examination, they recovered from the checked in baggage of Abdul Ghani, transparent plastic covers containing beaten rice; on opening the paper covers, foreign currency of various denominations of different countries were found. Thereafter, checked in baggage of Hameed Ulla was also scanned and examined; bundles of foreign currency rolled together kept in pockets of two jeans pants and two shirts were recovered. The total foreign currency recovered from Abdul Ghani was equivalent to Indian currency of Rs.54,20,792.30/-. The total foreign currency recovered from Hameed Ulla was equivalent to Indian currency of Rs.1,04,35,812.30/-. On enquiry and investigation, it was found by the DRI Officers that Abdul Ghani stated that his friend Fazal, the detenue in the instant case had handed over the said foreign currency to him and assisted him in concealing the same in the checked in baggage with instructions to hand over the said foreign currency to a person at Dubai Airport who would recognize him through his photo and also looking at the trolley baggage carried by him. Hameed Ulla, the other person also stated that his friend Abdul Ghani had taken him to the detenue Fazal and it was Fazal who had handed over the foreign currency to him informing him to keep the same separately bundled in different pockets of the two jeans pants and two shirts and packed the same in his red coloured trolley bag with instruction to hand over the said foreign currency to a person at Dubai Airport who would recognize him through his photo and also looking at the trolley baggage carried by him.
3. During the course of investigation, statement under Section 108 of the Customs Act, 1962 of Abdul Ghani, Hameed Ulla, Afsar Ulla Shariff, the detenue Fazal and also that of one Mohammed Shuab Bahadur were recorded. Residence of the detenue Fazal situated at No.171, Dar-E-Akram, Jamia Abbad Road, Madina Colony, Bhatkal, was searched, but no document was seized. Even in the residential premises of Mohamed Shaub Bahadur situated at No.8, 1st Main, 1st Stage, BTM Layout, N.S.Palya, Maruti Layout, Bangalore, no goods/documents were seized.
4. The seized foreign currency equivalent to Indian currency of Rs.54,20,792.30/- and Rs.1,04,35,812.30/- concealed by Abdul Ghani and Hameed Ulla respectively were kept in the Government custody.
5. On verification of the records, the authorities found:
i) that detenue Fazal was involved in attempted smuggling of Rs.73,22,600/- Indian currency from Bengaluru to Sharjah by arranging money through one Hussain and engaging Khaja Mainuddin Yusufji to smuggle out the said amount to Dubai, so as to give it to one Raees; that Khaja Mainuddin Yusufji was intercepted by DRI Officers at Kempegowda International Airport on 30.04.2009 while attempting to board flight G9498 Air Arabia, wherein it was found that he had concealed in his baggage Indian currency;
ii) that detenue Fazal was involved in attempted smuggling of Rs.76,40,000/- Indian currency from Bengaluru to Sharjah and in this case he had arranged the said money through Hussain and asked Mohammed Imtiyaz Farooque to smuggle out the said amount, so as to give it to one Raees. Mohammed Imtiyaz Farooque was intercepted by DRI Officers at Kempegowda International Airport on 30.04.2009, while he was attempting to board flight G9498 Air Arabia; it was found that he had concealed in his baggage Indian currency;
iii) that detenue was arrested in the attempted smuggling of Rs.8,00,000/- Indian currency on flight UL172 on 19.02.2012 at Kempegowda International Airport by Bengaluru Customs;
iv) that detenue was arrested by Bengaluru Police, CCB, J.C.Nagar, Bengaluru, in connection with possessing of fake Indian currency of about 20 lakhs and was put in Central Prison from 14.08.2013 to 15.11.2014 in Crime No.108/2013 and was released on bail subsequently.
6. Several other instances have been narrated in the grounds of detention. The other key person Mohammed Shuab Bahadur, who is the associate of the detenue and who is the detenue in the connected WPHC No.97/2016, has been named in several cases along with the present detenue.
7. The authorities have found from the evidence and materials gathered during investigation and also from the statement recorded that Mohammed Shuab Bahadur was the organizer of big gold smuggling racket at Kempegowda International Airport, to the tune of 120-130 Kgs. by engaging Air India SATS ground handling agents (loaders/operators) and various carriers/international passengers and the said operation came to light on 02.10.2015 by the DRI Officers when they intercepted Mr.Mivin and Mr.Mufeed, Air India SATS staff in connection with seizure of gold quantity of 258.59 grams from Nidheesh Tharol, an international passenger at Kempegowda International Airport, Bengaluru.
8. Materials on record disclose that after securing specific intelligence information by the DRI, Bengaluru, when the detenue and his associate Mohammed Shuab Bahadur, who were absconding, were found visiting a commercial complex on 09.02.2016 near Halsoor Police Station, Hudson Circle, Bengaluru around 13:40 hours, the officers who had kept watch in that vicinity identified and intercepted them.
9. The voluntary statement of detenue Fazal was recorded on 09.02.2016 under Section 108 of the Customs Act, wherein he has stated that he had been doing business of readymade garments at Bengaluru; he disclosed all the details with regard to his involvement in handling of fake Indian currency and smuggling of foreign currency.
10. The grounds of detention make it clear that Mohammed Shuab Bahadur, the detenue in WPHC No.97/2016 and the present detenue involved in this case were hand in glove with each other along with several others, to commit serious offence aimed at disrupting Indian economy and were the key players involved in the offences having serious ramification affecting the fabric of Indian economy and security.
11. The grounds urged by the petitioners herein are common to the grounds urged by the petitioner in WPHC No.97/2016 wherein the detention of the Mohammed Shuab Bahadur was challenged. The order of detention in the said case is also dated 07.06.2016 and the grounds of detention are common in many ways in respect of both these detenues. Therefore, as this court has considered in detail the legal contentions urged by the petitioner in WPHC No.97/2016 and the very legal contentions have been adopted by the counsel for the petitioner in this case also without separately addressing arguments, suffice to state that reasons assigned in paragraphs 19 to 23 in WPHC No.97/2016 in the order passed today (22.03.2017) apply with equal force to the facts of the present case. Paragraphs 19 to 23 of the said order reads as under:
“19. On careful consideration of the entire materials on record, we are of the considered view that the detaining authority has formed its subjective satisfaction regarding the involvement of the detenue in smuggling of nearly 120 to 130 Kgs. of gold through Kempegowda International Airport, Bengaluru, by engaging handling agents. The authorities have recovered from travel agents, documents which disclose that the detenue had purchased tickets for international passengers who acted as carriers for bringing gold on various occasions. They have also found that the detenue had himself made about 45 to 50 visits during the period from March 2014 to October 2015 to Bangkok and Dubai and had indulged in making cash transactions worth Rs.35 lakhs during November 2013, October 2013, without even having PAN, through ICICI Bank Savings Account. The investigation conducted by the DRI leading to seizure of Rs.1,04,35,812/- worth foreign currency on 09.12.2015 has revealed that it was the result of planned execution of smuggling operation jointly by the detenue and his associate one Fazal. Thus, overwhelming materials and seizures including seizure of mobiles from airport ground staff at the aerobridge namely Mivin and Mufeed Majeed have formed the basis of the subject satisfaction.
20. Merely because the show-cause notice referred to in the list of documents had not been considered, the same would not render the satisfaction derived by the authority vitiated as the said document was not the document on which the satisfaction was based. Further, the ground urged in support of the detention in paragraph 34 made it clear that basis for preventive detention along with the facts stated regarding search and seizure, in the background of the concerted effort made by several persons who were involved in series of incidents resulting in smuggling of gold into India and smuggling of currency out of India does not provide any room for the petitioner to contend that there was no material to show that the detenue had himself involved physically and personally in the act of smuggling and in the absence of such material, order of detention under Section 3(1)(i) of the Act could not have been issued. That there was a vital link between the detenue and Nidheesh Tharol from whom contraband gold was recovered and from Mivin and Mufeed Majeed and others as is evident from the materials gathered during the course of investigation which were the basis for the detaining authority to form the subjective satisfaction.
21. The so called illegible documents at pages 326, 328, 329, 330, 338, etc., are not the documents on which reliance has been placed by the detaining authority for the purpose of passing the order of detention. Therefore, ground urged in this regard cannot be accepted. It is true, relevant evidence if excluded from consideration vitiates the detention. But in the instant case, no case is made out to show that relevant material has been excluded from consideration. We are also aware of the fact that preventive detention would seriously affect the freedom and liberty of the citizen and it is the solemn duty of the court to ensure strict compliance with the procedure prescribed. Mere reference to the earlier order passed in WPHC.No.43/2010 wherein Fazal was involved and a detention order was passed, which the Court had quashed, could not render, in the facts of the present case, the detention illegal. The said fact has not been taken as one of the grounds to base the order of detention.
22. In the instant case, the confessional statement is not the only factor upon which the detaining authority has passed the order. There are several independent facts other than the confessional statement in the form of seizure of gold and recovery of important documents from travel agents, the travel details of the detenue, the nature and manner of activities having deleterious effect on the national economy, thereby seriously and adversely affecting the interest and security of the State, have been brought home during the course of investigation.
23. As held by the Apex Court in the case of PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA & OTHERS – 1985 (SUPP) SCC 144, particularly in paragraphs 78 to 82 and in the wake of the overwhelming materials gathered in the course of investigation by the authorities in the form of seizure of gold, currency notes and several other incriminating materials, the need to protect the society from social menace by detaining such persons engaged in smuggling and related activities which have adverse effect on the national economy aimed at disrupting the economy has to be kept in mind along with the all important fact that the procedural safeguards have to be ensured and the power conferred on the authorities is not casually exercised so that fundamental freedom guaranteed to the citizens is not undermined. Therefore, by adopting such pragmatic and realistic approach, we have carefully considered the entire materials and are of the view that exercise of power by the authorities, in the instant case, has been strictly as per the safeguards provided.”
12. In addition, in this case, the detenue Fazal has not retracted his voluntary statement given by him. Therefore, the case of the present detenue stands on a weaker footing compared to that of the detenue in WPHC No.97/2016.
13. We have discussed in our order passed in WPHC No.97/2016 the effect of the following judgments:
(i) DHARMISTA BHAGAT VS STATE OF KARNATAKA & ANOTHER – 1989 Supp (2) SCC 155;
(ii) SMT. ICCHU DEVI CHORARIA VS UNION OF INDIA & OTHERS – AIR 1980 SC 1983;
(iii) AYYA ALIAS AYUB VS STATE OF U.P. & ANOTHER – AIR 1989 SC 364;
(iv) MADAN LAL ANAND VS UNION OF INDIA & OTHERS – AIR 1990 SC 176;
(v) N.K.BAPNA VS. UNION OF INDIA & OTHERS – (1992) 3 SCC 512;
(vi) SITTHI ZURAINA BEGUM Vs. UNION OF INDIA & OTHERS – (2002) 10 SCC 448;
(vii) USHA AGARWAL Vs. UNION OF INDIA AND OTHERS – (2007) 1 SCC 295;
(viii) GAUTAM JAIN Vs. UNION OF INDIA & ANOTHER – CRL.APPEAL NO.2281/2014 DATED 04.01.2017;
(ix) MST.L.M.S. UMMU SALEEMA Vs. SHRI B.B.GUJARAL AND ANOTHER - (1981) 3 SCC 317;
(x) PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA & OTHERS – 1985 (SUPP) SCC 144.
14. We may add here that the confessional statement and other independent facts including seizure and recovery of important documents and currency notes and nature and manner of activities in which the detenue Fazal was involved have deleterious effect on the national economy thereby adversely affecting the interest and the security of the State. It is these things that have been foundation for forming the subjective satisfaction for the order of detention.
15. We may also make it clear here that the main contention urged by the learned counsel for the petitioner that the order of detention was vitiated because it was passed in order to prevent the detenue from the act of smuggling foreign currency and gold, whereas in the grounds of detention, it was stated that the detenue indulged in the acts of abetting smuggling and therefore, the premise on which the detaining authority has proceeded was wholly erroneous, has been repelled in WPHC No.97/2016 holding that the nature of illegal activities in which both the detenues were involved amounted to smuggling of foreign currency apart from abetting the same.
16. As held by the Apex Court in the case of PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA & OTHERS – 1985 (SUPP) SCC 144, particularly in paragraphs 78 to 82 and in the wake of the overwhelming materials gathered in the course of investigation by the authorities in the form of seizure of currency notes and several other incriminating materials, the need to protect the society from social menace by detaining such persons engaged in smuggling and related activities which have adverse effect on the national economy aimed at disrupting the economy has to be kept in mind along with the all important fact that procedural safeguards have to be ensured and the power conferred on the authorities is not casually exercised so that fundamental freedom guaranteed to the citizens is not undermined. Therefore, by adopting such pragmatic and realistic approach, we have carefully considered the entire materials and are of the view that exercise of power by the authorities, in the instant case, has been strictly as per the safeguards provided.
17. The Additional Chief Secretary to the State Government, who has passed the order of detention, has scrupulously followed all the procedural safeguards prescribed under the Constitution of India, particularly Article 22(5).
18. For all the reasons stated above, we are of the view that no case is made out for interference with the order of detention passed. Hence, this writ petition is dismissed.
Sd/- JUDGE Sd/- JUDGE