Bombay High Court
Mohammed Ashfaq Hallare vs The State Of Maharashtra on 26 June, 2012
Author: A.M.Khanwilkar
Bench: A.M. Khanwilkar, A.R. Joshi
Ladda
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION No.389 OF 2012.
Mohammed Ashfaq Hallare
Age 28 years, an Indian Inhabitant
residing House No.132, Patel Compound,
Kidwai Road, Bhatkal, District Karwar
Karnataka State. .. PETITIONER.
VERSUS
1) The State of Maharashtra
Through The Secretary to the
Government of Maharashtra,Home
Department (Special), Mantralaya,
Mumbai 400 032.
2) Smt.Medha Gadgil,
The Principal Secretary (Appeals and
Security) to the Government of
Maharashtra, Home Department and
Detaining Authority,Mantralaya,
Mumbai 400 032.
3) The Superintendent of Air Intelligence
Unit of Customs Avas Corporate Point,
Makwana Lane, behind S.M.Centre,
Andheri-Kurla Road, Andheri (East),
Mumbai.
4) The Secretary to the Ministry of Finance
Department of Revenue ?Wing,
6th Floor, Janpeth Bhavan, Janpeth Marg,
New Delhi-110 001.
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5) The Superintendent of Prison,
Nashik Road Central Prison, Nashik,
Maharashtra. ..RESPONDENTS.
Mr. B. G. Vaidya, for the Petitioner.
Ms. P. H. Kantharia, APP, for Respondent Nos. 1 to 3 and 5.
Mr. N. Natarajan, for Respondent No. 4.
CORAM : A.M. KHANWILKAR
& A.R. JOSHI, JJ.
Dated :- 26th June, 2012.
ORAL JUDGMENT. (PER A.M.KHANWILKAR,J)
1. Heard learned counsel for the parties.
2. This writ petition, under Article 226 of the Constitution of India, takes exception to the detention order dated 25th October, 2011, passed by the Principal Secretary to the Government of Maharashtra, Home Department and Detaining Authority, Mantralaya, Mumbai-32 (for short Detaining authority),in exercise of powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) (hereinafter referred to as the said "COFEPOSA Act" for the sake of brevity) with a view to prevent the detenue in future from "smuggling goods"
3. After the detenue was detained, the grounds of detention have been served on him. Even from the fair reading of grounds of 2of8 ::: Downloaded on - 09/06/2013 18:42:18 ::: 3 judgment in wp-389-12.sxw detention what can be discerned is that the detaining authority thought it essential to issue detention order in question against the detenue being subjectively satisfied that it was imperative to pass such order with a view to prevent the detenue from smuggling goods in future. In other words, the detaining authority has invoked ground ascribable only to section 3 (1)(i) of the COFEPOSA Act. No other ground provided under Section 3 (1) had weighed with the detaining authority while recording her subjective satisfaction. We may usefully reproduce the relevant portion of the detention order as well as the grounds of detention which would substantiate this position. The same read thus :-
DETENTION ORDER.
No.PSA 1211/CR-54/SPL/3(A) Whereas I, Medha Gadgil, Principal Secretary (Appeals & Security) to the Government of Maharashtra, Home Department, Specially empowered under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) vide Government Order, Home Department (Special) No.MIS-2009/CR-113/SPL-3(A), dated the 30th September, 2009, am satisfied with respect to the person known as Shri Mohammed Ashif, (Age 32 years) residing at H.No.132, Patel Compound, Kidwai Road, Bhatkal, Karwar, North Kanara, Karnataka 581320 that with a view to preventing him in future from smuggling of goods, it is necessary to make the following order..."
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4 judgment in wp-389-12.sxw "GROUNDS OF DETENTION :
....
9. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in such prejudicial activities. It is imperative that you should be detained under the provisions of COFEPOSA Act, 1974, with a view to prevent you from indulging in smuggling activities in future."
4. In this backdrop, two fold argument has been urged before us. The first is that the subjective satisfaction has been reached by the detaining authority on the basis of solitary instance referred to in the grounds of detention against the petitioner. That is not enough to invoke section 3 (1)(i) of the Act. The second point is that the subjective satisfaction arrived at by the detaining authority is vitiated because it has not considered the efficacy of the fact that the passport of the petitioner has already been taken in custody by the Customs Department as a condition for grant of bail. That completely rules out the possibility of the detenue traveling abroad and indulge in smuggling goods in future. To buttress these submissions, reliance has been placed on the decision of the Apex Court in the case of Gimik Piotr v. State of Tamilnadu reported in (2010) 1 SCC 609 = AIR 2010 SC 924.
4of8 ::: Downloaded on - 09/06/2013 18:42:18 ::: 5 judgment in wp-389-12.sxw Even in that case the detention order was challenged on the basis of these two aspects. The Apex Court, after considering the relevant decisions on the point, answered the issue in favour of the petitioner. On the first point, even in that case, the court noticed that the subjective satisfaction recorded by the detaining authority was on the basis of one solitary incident and secondly the subjective satisfaction that the detenue would continue to smuggle goods in future was intangible when the record established that the passport of the detenue was already in the custody of the department. In our opinion, the principle stated in this decision squarely applies to the fact situation of the present case and for the same reasons even this petition ought to succeed.
5. We may place on record that the above said grounds have been urged by way of Criminal Application No.324 of 2012 as additional ground in support of the relief claimed in the writ petition. We thought it appropriate to permit the petitioner to urge the said ground in the interest of justice. We may also place on record that the petitioner has raised other contentions for challenging the order of detention but, in our opinion, the 5of8 ::: Downloaded on - 09/06/2013 18:42:18 ::: 6 judgment in wp-389-12.sxw petitioner ought to succeed on the above said contention which is squarely answered in the decision of the Apex Court in Gimik Piotr's case (supra).
6. Learned A.P.P., however, was at pains to persuade us that the Court ought to take into account the statements of the detenue given to the authority while in custody under Section 108 of Customs Act, 1962, which would show that the petitioner was carrying substantial Indian currency to the extent of Rs.38 lakhs with an intention to smuggle the same outside India and was part of the conspiracy along with Mujib Keppa from Bhatkal from Karnataka. As aforesaid, the subjective satisfaction has been recorded only in respect of ground of smuggling goods in future, under Section 3 (1) (i) of the Act. None other grounds weighed with the detaining authority for issuing detention order, against the detenue in this case. That is evident from the opening part of the detention order, and more particularly, from para 9 of the grounds of the detention reproduced hitherto. If the argument of the learned A.P.P. was to be accepted, it could result in justifying and upholding the detention order on grounds on which subjective 6of8 ::: Downloaded on - 09/06/2013 18:42:18 ::: 7 judgment in wp-389-12.sxw satisfaction has not been recorded by the detaining authority itself.
It is not possible to adopt that course.
7. Considering the above, it is not necessary for us to dwell upon other grounds urged by the petitioner as we are more than convinced that the petition ought to succeed on the basis of principle expounded by the Apex Court in Gimik Piotr's case (supra). We may place on record that the learned A.P.P. did argue that merely because the passport was in the custody of the Customs Department that by itself cannot be the basis for judicial review of the subjective satisfaction reached by the detaining authority. In support of this submission, she relied on the decision in the case of Abdul Sathar Ibrahim Malik v. Union of India and others with Ibrahim Shareef M. Madhafushi v. Union of India and others [(1992) 1 SCC 1]. Identical contention was considered by the Apex Court in Gimik Piotr's case (cited supra) and has been negatived, as can be discerned from the dictum in paragraph 33 of the said decision. The Apex Court has distinguished the line of authorities taking the view that the fact that passport is in the custody of the Department does not impair 7of8 ::: Downloaded on - 09/06/2013 18:42:18 ::: 8 judgment in wp-389-12.sxw power of the detaining authority to issue order of detention. The Apex Court has noticed that those decisions were on the basis of other grounds provided under Section 3 (1) of the COFEPOSA Act and not restricted to section 3 (1)(i) as in the case of Gimik Piotr's case. Even in the present case, the detention order has been passed on the basis of subjective satisfaction regarding ground only under Section 3 (1)(i) of the COFEPOSA Act. Taking any view of the matter, therefore, this petition ought to succeed.
8. In the result, the petition is allowed. Same is made absolute in terms of prayer clause 7 (a) which reads thus:
"That this Hon'ble Court be pleased to issue a writ of habeas corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention bearing No.PSA-1211/CR-54/SPL-3(A), dated 25.10.2011 issued by Smt.Medha Gadgil, the principal Secretary to the Government of Maharashtra, Home Department and Detaining Authority, Mantralaya, Mumbai 400032 (Exh.A to the petition) and be pleased to direct that the detenue (Mohammed Ashif) be set at liberty; forthwith."
All concerned to act on the ordinary copy of this order, duly authenticated by the office.
(A.R.JOSHI,J) (A.M.KHANWILKAR,J)
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