TMI Blog1978 (12) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... - 11-12-1978 - O. CHINNAPPA REDDY AND N.L. UNTWALIA, JJ. For the Petitioner : Ram Jethmalani, M. G. Kurnali and Vineet Kumar For the Respondent : A. V. Rangam JUDGMENT Bhawarlal Ganeshmalji whose application for the issue of a Writ of Habeas Corpus was rejected by the High Court of Madras, is the appellant in Criminal Appeal No. 233 of 1978. He has also filed Writ Petition No. 4327 of 1978 for the issue of a Writ of Habeas Corpus under Article 32 of the Constitution in which he has raised certain grounds which had not been raised before the Madras High Court. The appeal and the Writ petition were heard together by us and are disposed of by this common order. The impugned detention order was made on 19th December, 1974 by the Government of Tamil Nadu and the grounds for the order were contained in a memorandum dated 20th December, 1974 of the Government of Tamil Nadu. The order of detention could not be executed immediately as the appellant petitioner was absconding and could not be apprehended despite a proclamation made pursuant to Section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The appellant-petitioner, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of T.Chowdiah and that he had disposed of 3900 bars of smuggled gold valued at Rs.80 lakhs within a short time of less than a month. Bhawarlal, the servant of Bhoormal in Madras identified Ghaverchand Samarthajee as an employee of R. B. Bhandari used for gold smuggling business at Bangalore. The case was adjudicated and the currency was confiscated. Personal penalty of Rs.5000/- was imposed on Thiru R. S. Bhandari. (ii) On 20-4-1974, 40 bars of gold weighing 23,274.100 grams valued at Rs.12,75,420/- was seized by Thiru Ramanathan Supdt. Central Excise, Madras from a secret vacity of an Ambassador can MDE 9399 at the commercial Check Post, Hosur. T. Ramamurthy of Porayar (driver) and Thiru Ganesan occupied the car. Their statements revealed that the gold was sent by Sikku Govidaswami of Porayar, a noted transport agent for contraband goods. Ganesan also admitted that the car with the contraband was to be handed over to one Marwari, at Bangalore at an appointed place. The intelligence report dt. 17-4-74 and 19-4-74 by the Intelligence officer tc the . Directorate of Revenue Intelligence which had been received earlier on the basis of which the aforesaid car was intercepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntage of his own wrong. With regard to the first ground of detention he submitted that the circumstance that the persons who had incriminated the detenu had resiled from their former statements had been mentioned in the judication order passed by the Customs authorities and that order had been placed before the detaining authority before the order of detention was made. In regard to the second ground of detention the learned Counsel argued that it was not based merely on the intelligence report and in any case, since no privilege was claimed, it was always open to the detenu to have asked for more particulars if he so desired, but which he failed to do. It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a live and proximate link between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons who had earlier incriminated the detenu had later resiled from those statements was therefore before the detaining authority. There is thus no factual foundation for this submission of the learned Counsel, which we accordingly reject. We now proceed to consider the last submission of the learned Counsel based on the reference to the contents of the intelligence report in the second ground of detention. It was pointed out by the petitioner s learned Counsel that the statement of Ramamurthy and Ganesan merely showed that the contraband was to be delivered to a Marwari at Bangalore at an appointed place. It was the intelligence report alone that fixed the identity of the Marwari as the detenu. Without the intelligence report it would be impossible to connect the detenu with the person mentioned as the Marwari in the statements of Ganesan and Ramamurthy. Now the submission of the learned Counsel was that the identity of the author of the intelligence report as well as the report and the material on which the report was based ought to have been disclosed to the detenu if the detenu was to effectively exercise his fundamental right under Article 22(5) of the Constitution and to m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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