Bombay High Court
Kakkovayal Kuhbi Hamja vs State Of Maharashtra And Another on 3 December, 1991
Equivalent citations: 1991(4)BOMCR509, 1993CRILJ1078
JUDGMENT H.W. Dhabe, J.
1. The petitioner has challenged in this writ petition his order of detention issued by the Secretary, (Preventive Detention) to the Government of Maharashtra, Home Department and Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA Act").
2. The facts leading to the detention of the petitioner are that on 13-6-1990, the petitioner who came to Bombay from Dubai by Air India Flight No. AI-732 was intercepted by the Customs Officers at counter No. 3, Baggage Arrival Hall, Modula II of Sahar Airport, Bombay. The petitioner had three bags with him, two Zipper bags one of maroon colour and another of blue-yellow colour and one shopping bag. On search of his baggage, the officers recovered eight gold pieces totally weighing 3240 gms. valued at Rs. 6,90,800/- I.M.V. and Rs. 10,58,180/- L.M.V. Out of these eight gold pieces, seven gold pieces were inside the zipper bag in the form of spanners coated with metallic paint totally weighing 1160 gms. and one was in the form of metallic would inside an Electric iron. All these eight gold pieces were seized under panchnama dated 13-6-1990 under the provisions of Customs Act, 1962.
3. The statement of the petitioner was recorded on the same day i.e. 13-6-1990 under S. 108 of the Customs Act, 1962 and he was arrested on the same day for an offence of non-declaration of gold punishable under the Customs Act, 1962. He was also granted bail, but he did not avail of the same.
4. As regards the case under the Customs Act, the petitioner waived show cause notice and besides directing confiscation of the gold pieces, a personal penalty of Rs. 40,000/- was imposed upon the petitioner by the Additional Collector (A.P.).
5. The file of the petitioner was sent to the COFEPOSA Cell on 25-6-1990 where the proposal was initiated on 23-8-1990 by the Sponsoring Authority for detention of the petitioner. The said proposal was approved by the Screening Committee on 27-8-1990 and thereafter it was sent to the Detaining Authority on 17-10-1990. After the said proposal was received in the Home Department on 17-10-1990, the draft grounds were prepared on 9-11-1990. However, before such grounds were prepared, some additional information was sought on 31-10-1990 from the Sponsoring Authority which information was received on 9-11-1990 and 20-11-1990. The translation of the draft grounds of detention and the documents were called for on 11-12-1990 as the mother tongue of the petitioner was Malayalam. The said translations were received on 20-12-1990. After considering the proposal and the documents, the detaining authority proposed amendments to the draft detention order and hence the same was sent back to the sponsoring authority on 31-12-1990 for making necessary corrections in the translations. The corrected translations were received on 16-1-1991 and thereafter the grounds of detention were finalised on 4-2-1991.
6. The order of detention dated 4-2-1991 and the grounds of detention dated the same were then served upon the petitioner on 7-2-1991 along with the documents. By the order of detention dated 4-2-1991, the petitioner was directed to be detained under sub-section (1) of Section 3 of the COFEPOSA Act with a view to preventing him from smuggling goods. By the same order he was directed to be detained for one week in Bombay Central Prison whereafter he was to be detained in Nagpur Central Prison, Nagpur. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court challenging the order of his detention on several grounds. The Detaining Authority i.e. the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, Bombay as also the State Government itself through its Desk Officer have filed their affidavits opposing the instant writ petition.
7. The learned Counsel for the petitioner has raised the following grounds before us to challenge the order of detention of the petitioner :
(1) Non-compliance with Section 3(2) of the COFEPOSA Act, (2) Eight months delay in passing the order of detention, (3) There is non-application of mind by the detaining authority and want of subjective satisfaction also because this is a case of solitary incident only.
The learned Counsel for the State has urged before us that there is no merit in any of the above grounds and that the detention of the petitioner is legal and justified.
8. As regards the question of non-compliance of Section 3(2) of the COFEPOSA Act, the said ground is contained in paras (vi) and (viii) of the grounds raised in the instant writ petition. According to the learned Counsel for the petitioner, the State Government has not submitted the report about the detention of the petitioner to the Central Government within ten days of the issue of the detention order as required by Section 3(2) of the COFEPOSA Act. In para (viii) of the grounds in the writ petition, it is stated that the State Government should be directed to give strict proof of how the report was sent to the Central Government, if at all, it was sent.
9. In reply to the above ground, it is stated in para 3 of the affidavit filed on behalf of the State Government that it had forwarded to the Central Government the report under S. 3(2) of the COFEPOSA Act on 5-2-1991 under the signature of Shri A. G. Karnik, Under Secretary, Home Department concerned who was authorised under the rules of business of the State Government to do so. It is further stated in para 3 of its affidavit that the said report was accompanied by - (1) Letter dated 17-10-1990 along with its accompaniments, (2) Detention-cum-committal order, and (3) Notice of grounds of detention along with accompaniments. It is not, however, stated in the affidavit filed on behalf of the State Government as to how the said report was sent to the Central Government although it is specifically required to do so by the petitioner in para (viii) of the grounds in the writ petition. However, when queried in this regard, the learned Counsel appearing for the State has after calling for information from the concerned authorities, stated before us that the said report was sent by ordinary post to the Central Government. We do not think there is any reason to disbelieve the statement made on behalf of the State in para 3 of its affidavit that the report about the detention of the petitioner along with the accompaniment referred to above was forwarded to the Central Government on 5-2-1991.
10. The learned Counsel appearing for the petitioner has, however, urged before us that it is not enough for the State Government to show that the report is forwarded to the Central Government, but it must also show that the said report has been received by the Central Government within a period of ten days for proper compliance with Section 3(2) of the COFEPOSA Act. In support, he has relied upon the judgment of this Court in Vinayak Ramchandra Sakhalkar v. D. Ramchandran, Commissioner of Police, Thane reported in 1985 Cri LJ 1257. It is pertinent to see that the said case was a case where this Court considered the language of Section 3(5) of the National Security Act, 1980. It is material to see that Section 3(5) of the National Security Act, 1980 requires the State Government to report the fact about the detention of the detenu to the Central Government within the period stipulated therein. This Court has therefore considered the meaning of the word "report" used therein. It is held in the said case that the use of the word "report" indicates that the State Government must show that the report about the detention of the detenu is not only forwarded, but is also received by the Central Government so as to make compliance with the requirements of Section 3(5) of the said Act.
11. It is, however, pertinent to see that the language used in Section 3(2) of the COFEPOSA Act is not similar to the language used in Section 3(5) of the National Security Act, 1980. The obligation cast upon the State Government under S. 3(2) of the COFEPOSA Act is to forward to the Central Government a report within ten days of the issue of the detention order. In fact, this difference in the language is noticed by the Division Bench itself in para 10 of its judgment in the above case. The obligation cast upon the State Government under S. 3(2) is that the report has to be sent by it to the Central Government within ten days, but it is not necessary that it should also see that it reaches the Central Government within the said period. As already pointed out above, the report is forwarded by the State Government to the Central Government on 5-2-1991 i.e. within ten days of the issue of the detention order and hence there is no non-compliance by it with the requirement of Section 3(2) of the COFEPOSA Act. The above contention raised on behalf of the petitioner therefore cannot be accepted.
12. The next contention urged before us is about the delay in passing the detention order in the instant case. The learned Counsel appearing for the petitioner has urged before us that the gold pieces were seized from the petitioner on 13-6-1990 after he alighted at Sahar Airport, Bombay from the plane from Dubai to Bombay, but the order of his detention was issued after about a period of eight months on 4-2-1991. The submission thus is that since the detaining authority has not acted in the instant case with promptitude, the impugned order of detention of the petitioner is vitiated. As regards various steps taken by various authorities in making the proposal for detention and ultimately issuing the detention order, the submission is that there is an un-explained delay at every stage and particularly in sending the proposal to the detaining authority and therefore, the order of detention is liable to be quashed.
13. In support of his submission, the learned Counsel for the petitioner has relied upon two unreported judgments of this Court in (1) Criminal Writ Petition No. 26 of 1989, Mahood Abdulla Abdul Khadar v. Shri L. Hmingliana, Secretary (II) to the Government of Maharashtra, Home Department (Special), Mantralaya, Bombay and another and (2) Criminal Writ Petition No. 29 of 1989, Pullikal Mohammed s/o Pullikal Alavi v. Hmingliana, Secretary (II) to the Government of Maharashtra, Home Department (Special), Mantralaya, Bombay and another, both decided on 22-6-1989. The ratio of the above judgments of this Court need not detain us any more since the question as to the effect of delay in passing the detention order has been considered in several recent decisions of the Supreme Court.
14. In the case of Rajendrakumar v. State of Gujarat, , it is held by the Supreme Court that distinction should be drawn between the delay in making of an order of detention under a law relating to preventive detention like the COFEPOSA Act and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It is held that the rule as to unexplained delay in taking action is not an inflexible rule. In cases of mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, are posing a serious threat to the economy and thereby to the security of the nation, the Courts should not on account of delay in making of an order of detention, assume that such delay, if not satisfactorily explained, must necessarily give rise to an interference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. It is then held that taking of such a view would not be warranted unless the Court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the impugned order of detention. The Supreme Court has followed the above view in its subsequent decisions under the COFEPOSA Act. See M. Ahamed Kutty v. Union of India , Abdul Salam v. Union of India , Syed Farooq Mohammed v. Union of India . see also T. Abdul Rahman v. State of Kerala,
15. It is thus clear that delay in passing of an order of detention is not ipso facto fatal to the detention of a person and the real test to judge whether an order of detention is vitiated by reason of delay in passing the same is whether the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention, or in other words, the live-link between the same is snapped by reason of such delay. Examining the facts in the instant case in the light of the above decisions of the Supreme Court, it cannot be said that the delay in passing the order of detention is so unreasonable as to make the grounds stale or illusory or to snap the live-link between the grounds and the order of detention even-though as held in Rajendrakumar's case (1988 Cri LJ 1775) (SC) cited (supra), there is some unexplained delay.
16. Perusal of the facts in the instant case show that after the seizure of gold pieces on 13-6-1990, the file was sent to the COFEPOSA Cell on 25-6-1990 from where the proposal for detention emanated on 23-8-1990 which was approved by the Screening Committee on 27-8-1990. It is true that there is no explanation given by the respondents as to why after 27-8-1990 the proposal for the said detention was sent to the detaining authority i.e. the Secretary, Home Department after about a period of two months on 17-10-1990. However, in our view, the said unexplained delay is not fatal to the order of detention because thereafter the draft grounds of detention were promptly prepared on 9-11-1990.
17. It is then clear from the facts narrated hereinbefore that some time was taken for translation of the documents and the grounds of detention in the language of the petitioner i.e. Malayalam. The proposed grounds of detention needed some amendment for which also, some time was taken and thereafter the final order of detention along with the grounds was issued on 4-2-1991. Applying the test referred to above, we do not think that the above delay is such which would snap the live-link between the grounds and the order of detention in the instant case. We cannot, therefore, accept the above submission made on behalf of the petitioner that because of delay in passing the order of detention, the said order of detention is vitiated.
18. It is then urged before us by the learned counsel for the petitioner that there was non-application of mind by the detaining authority and there was want of its subjective satisfaction because, according to him, this was a case of a solitary incident and therefore, no inference could have been drawn by the detaining authority that the petitioner was likely to indulge in future also in smuggling activity with a view to prevent which it was necessary to detain him under Section 3(1) of the COFEPOSA Act. It is well settled by several decisions of the Supreme Court that merely because there is a solitary incident, it cannot be said that no order of detention can be issued under Section 3(1) of the COFEPOSA Act. If the facts and circumstances in a case show that with a view to prevent the smuggling activity, it is necessary to issue the order of detention even in the case of a solitary incident, it is open to the detaining authority to do so. See Mrs. Saraswati Seshagiri v. State of Kerala, , M. Mohammed Sulthan v. The Joint Secretary to Govt. of India, Finance Deptt., and Abdul Sathar Ibrahim Manik v. Union of India .
19. In the present case, it is true that as urged on behalf of the petitioner, there are no antecedents of the petitioner about his smuggling activity. It is, however, material to see for the purpose of the instant case that in the judgment of the Supreme Court in Abdul Sathar's case cited supra, it is held that even a solitary incident may manifest the potentialities of a detenu in smuggling and an order of detention issued under S. 3(1) of the COFEPOSA Act cannot be quashed merely on the ground that there were no antecedents.
20. The learned Counsel for the State has urged before us that the petitioner has potentiality in smuggling activity because although in service in Dubai, he has his family in India and is therefore likely to come to Indian often. He has further urged before us that the petitioner has admittedly accepted the illegal job for a monetary consideration, may be because of his financial difficulties and therefore, he is likely to do so in future also. On the other hand, the learned counsel for the petitioner, has urged before us that the passport of the petitioner is seized by the Customs Authorities and that he is in jail and therefore, it is not possible that he would in future carry on smuggling activities.
21. As regards the above submission made on behalf of the petitioner, it may be seen that the passport of the petitioner was seized during the pendency of the Custom's case against him which was decided by the order of the Additional Collector (A.P.) dated 13-6-1990. There is no averment that the passport of the petitioner is canceled. Even otherwise, if the petitioner wants to indulge in smuggling activity, he can do so on a fake passport also. As regards the question of the petitioner being in jail, it is not shown to us that after the decision in the Custom's case, he still continues in Jail in connection with the said case or any other criminal case. If not so, it would mean that he is in jain pursuant to the order of detention. Be that as it may, as stated in the grounds of detention, bail has been granted to the petitioner which although he has not availed of up till now, can be availed of by him at any time. The above factors are not therefore such on the basis of which it can be said that there is no compelling reason for the detaining authority to be satisfied that the petitioner is likely to indulge in smuggling activity. As observed by the Supreme Court in Abdul Sathar's case (1991 Cri LJ 3291) cited (supra), what would be the compelling reasons would depend upon the facts in each case. The above reasons cannot therefore vitiate the order of detention if otherwise there is a case for subjective satisfaction of the detaining authority.
22. In appreciating the submission made on behalf of the State, it may be seen that the issuance of an order of detention under S. 3(1) of the COFEPOSA Act is a matter of subjective satisfaction of the detaining authority and unless it is shown that the inference drawn by it on the basis of the material on record is wholly unwarranted and perverse, it cannot be interfered with in the writ jurisdiction of this Court. In the facts of the instant case, when the petitioner can come to Indian often because he is an Indian National and because his family is residing in India and further when he has undertaken the present illegal job of smuggling gold pieces in concealed form for monetary consideration, the inference drawn by the detaining authority that he can indulge in future also in such smuggling activity cannot be said to be unwarranted or perverse.
23. No interference is thus called for in the order of detention passed against the petitioner under S. 3(1) of the COFEPOSA Act.
24. In the result, the instant writ petition fails and is dismissed.
25. Petition dismissed.