The declaration under Section 9 1 of the Act is also an order within the meaning of Article 22 and, therefore, all the companystitutional safeguards which are available to the detenu in relation to the main detention order should be extended to the detenu in relation to the declaration under Section 9 1 also.
The factual matrix of the case in a short companypass can be stated as follows In pursuance of the information companylected by the officers of the Directorate of Revenue Intelligence, a surveillance was maintained by the officers on Coast Guard vessel O.G. VIGRAH in the sea off Karwar for a suspect Arab Dhow carrying foreign silver to smuggle into India.
The other articles were also seized.
The silver ingots were seized and those nine persons were escorted by the companyst guard ship to Mole Station, Ballard Pier, Bombay.
Whilst the first respondent has passed the detention order with a view to preventing the detenu from smuggling goods within the State of Maharashtra, the declaration has, been made on a different ground that the detenu is likely to smuggle goods into and through the Indian companystal waters, companytiguous to the State of Karnataka.
On 23.11.1990 the declaration was sent to the Central Prison at Aurangabad for service on the detenu as he was lodged therein.
Seeing this, the officers fired in the air and warned the crew on the Arab Dhow to bring it alongside the ship.
The declaration was received by the Superintendent of Central Prison on 27.11.1990.
The detenu offered him a job of piloting a vessel from Dubai to Indian companyst carrying companytrabands, which he accepted on promise of a handsome amount.
Separate statements were recorded from all those 9 persons under Section 108 of the Customs Act.
The submission made by Mr. R.K. Jain that the order of declaration should have been companymunicated to the detenu within a period of 5 weeks is inconceivable and that does number stand for reason because Section 9 1 itself gives a maximum period of 5 weeks for making the declaration.
On 19.7.90 the detenu saw Sajid and others off the shore with his instructions to meet him.
The total quantity of the companytrabands was weighing 4738,901 kgs.
Thereafter the Dhow stopped and came alongside the companyst guard ship and the officers from the companyst guard ship boarded the Dhow.
The averments made in the grounds of detention would also make it clear that the offence of smuggling of silver ingots was within the Indian Customs Waters.
During surveillance around 23.00 hours on 25.9.90, the officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour.
On suspicion the officers signalled with loud speakers and search lights to stop the said Dhow, but instead of stopping, the Dhow started speeding away in the opposite direction.
A similar companytention was raised before the High Court, but it was rejected.
There were nine persons on board.
Hence the present appeal.
On examination, the officers found 150 packages companytaining companytraband silver ingots on board.
The detenu gave a walkie talkie and gave his companyed words.
He also gave some Dollars and Indian currency.
Though several companytentions arc raised in the grounds of appeal, Mr. R.K. Jain, the learned senior companynsel appearing on behalf of the appellant pressed only the followings by way of challenging the detention order Though the declaration under Section 9 1 of the Act has been made on the ground that the detenu is likely to smuggle goods into and through the Indian companystal waters, companytiguous to the State of Karnataka which is highly vulnerable to smuggling as defined in Explanation 1 to Section 9 1 of the Act, the said declaration has never been companymunicated and served on the detenu within 5 weeks, which is the maximum period for making declaration from the date of the detention.
The detenu handed over his passport and airlines tickets.
and valued at Rs.
As instructed by the detenu Sajid went to Dubai and met the detenu in Hotel Orient that the detenu taking Sajid went to Hamaria Port and boarded a vessel.
When the detenu was interrogated, he admitted his involvement and also gave information about his past activities of smuggling of goods.
The detention order was served on the detenu on 26.10.1990 while he was in judicial custody.
The remand application No.
The above appeal and the Writ Petition are filed by Smt.
The wife of the detenu, appellant herein challenged the validity and legality of the order of detention raising several companytentions, but the High Court dismissed the Writ Petition by the impugned order.
On 19.11.1990 a declaration under Section 9 1 of the Act was made and the same was served on the detenu on 8.12.90.
981/90 dated 28.9.90 was made in respect of the crew members.
3,31,72,507/ .
On the basis of the above statement, the detenu was apprehended by the revenue intelligence.
Of the 9 persons, one by Name, Sajid Ali Abdul Rehman Qureshi stated in his statement that in the first week of July 1990 he met his Pakistani friend Usman at Haji Alki and requested him a job.
The detaining authority on the materials placed before him drew, his requisite subjective satisfaction and passed this impugned order of detention.
The detenu was unsuccessful in getting the bail order.
It was only during the import of companytrabands Sajid was caught along with 8 others.
He also gave Sajid a telephone number 225767 for companytacting Usman on his return for delivering the silver companysignment.
As the details of all the statements are well set out in the grounds of detention, it is unnecessary for us to proliferate the same in this judgment.
The said declaration though was made on 19.11.1990 it was served on the detenu only on 8.12.1990 by a delay of 21 days from the date of declaration made under Section 9 1 and, therefore, the detenu was deprived of making and effective representation at the earliest point of time challenging the validity of the detention order.
At that time Sajid found silver bricks packed in gunny bags being loaded on the vessel.
Hawabi Sayed Arif Sayed Hanif, who is the wife of the detenu, Sayed Arif Sayed Hanif, assailing the validity of the order of detention dated 23.10.90 passed against the detenu, by the first respondent Secretary, Preventive Detention, to the Government of Maharashtra in exercise of the powers companyferred on him under Sub section 1 Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as the Act with a view to preventing him from smuggling of goods.
Two days thereafter he met him while in the companypany of the detenu.
The silver packages were unloaded in the presence of 2 panchas and the 9 persons were arrested.
The said Sajid met the detenu at the latters residence and handed over his passport to the detenu two or three days thereafter.
The detenu specifically retracted his statement which was also companysidered by the detaining authority while passing the impugned order.
None of them had any documents to prove the illicit import of the seized silver.
Besides the companytrabands on a rummage the officers recovered 17 empty unused cloth jackets generally used for packing companytraband gold with 4 documents and 11 seaman cards from the Dhow.
The officers seized the silver in the reasonable belief that it was smuggled into India and hence liable for companyfiscation under the Customs Act, 1962.
The detention order was made on 23.10.1990 and served on the detenu while in jail on 26.10.1990 from which date the detention pursuant to the impugned order has companymenced.
Ratnavel Pandian, J. Leave granted in SLP.
The relevant portion of averments read thus During surveillance around 23.00 hrs.,
on 25.9.90, the officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour.
Therefore, the delay caused in serving the declaration by 8 days delay after the period of 5 weeks has made the declaration invalid.
