Calcutta High Court
Anup Kr. Ghosh vs Union Of India (Uoi) And Ors. on 3 October, 1997
Equivalent citations: 1998(59)ECC479
Author: Satyabrata Sinha
Bench: Satyabrata Sinha, Bhaskar Bhattacharya
JUDGMENT
Satyabrata Sinha, J
1. In this application the petitioner has prayed for issuance of a writ of Hebeas Corpus by quashing an order of detention passed by Shri K.L. Verma, Joint Secretary, Govt of India detaining him under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called and referred to for the sake of brevity as 'COFEPOSA').
2. Bereft of all unnecessary details, the facts of the matter is as follows:--
The petitioner was arrested on 8.8.1996 purported to be under Section 104 of the Customs Act, 1962 when he had gone to the Calcutta Airport for obtaining a baggage booked in the name of Sri S. Chowdhury which, on suspicion having been opened, was found to be containing 21,000 wrist watches and some cycle parts. According to the petitioner he had travelled from Hongkong to Calcutta by Biman Bangladesh with one S. Chowdhury and the said baggage was missing and was registered as such. The said baggage having been found out Sri Chowdhury requested him to take delivery of the same on his behalf. In fact, according to the petitioner he was not aware of the contents of the said baggage, The petitioner was released on bail on certain conditions.
The petitioner was also served with a notice under Section 111(d), (i), (m) of the Customs Act, 1962 along with Sri Monoj Kothari and Sri Rajesh Kothari directing them to show cause as to why the seized articles should not be confiscated. The said notice is contained in Annexure 'A' to the writ application. It appears that the petitioner was examined by the custom authorities under the said Act. On 12.9.96, 16.9.96, 18.9.96 20.9.96, 24.9.96, 7.10.96. and 14.10.96; whereas Sri Monoj Kothari was examined on 5.12.96, 6.12.96, 12.12.96, 13.12.96 and 20.12.96, Rajesh Kothari was also examined on 6.12.96. The gravamen of the charges against the petitioner as would appear from the said show cause notice as contained in Annexure 'A' as also the ground of detention dated 22.1.97. is that Sri Monoj Kothari was the king-pin and he had employed the petitioner as a carrier of the said wrist watches on a remuneration of Rs. 3,000/-.
3. It is stated that all the concerned persons visited Hongkong. The petitioner and the aforementioned Shri S. Chowdhury travelled by the same flight. The petitioner was to deliver the said goods to the brother of the Monoj Kothari viz. Rajesh Kothari at the Calcutta Airport.
The detention order of Monoj Kothari and the petitioner was prepared on the same day and under the same order as would appear from Annexure 'C' to the writ petition on 22.1.1997 and both of them were detained on 14.2.1997. The petitioner in respect of grounds of the detention and the documents accompanying therewith files a representation before the detaining authority which is contained in Annexure 'D' to the writ application. It is admitted that the matter was placed before the Advisory Board on 4.4.97 and an order confirming the detention was passed by the Central Government on 15.5.1997. On the basis of the opinion of the Advisory Board and directed that the petitioner be detained for a period of one year from the date of his detention i.e. from 14.2.97. The said order reads as follows:--
Whereas an order F. No. 673/7/97-Cus. VIII dated 22.1.1997 has been passed by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 for the detention of Sri Anup Ghosh.
Whereas the case of Shri Anup Ghosh was placed before the Advisory Board who are of the opinion that there is sufficient cause for his detention; and Whereas the Central Government has fully considered the report of the Advisory Board and materials on record;
Now, therefore, in exercise of the powers conferred by Section 8(f) of the aforesaid Act, the Central Government hereby confirms the aforesaid detention order and further directs under Section 10 ibid that the said Shri Anup Ghosh may be detained for a period of one year from the date of his detention i.e. from 14.2.97.
4. The respondents filed an affidavit-in-opposition affirmed by Shri Somnath Pal although the order of detention was passed by Shri K.L. Verma. From the affidavit of Shri Somnath Pal it appears that Shri K.L. Verma has been transferred on promotion and posted outside Delhi. Although he is in service, the affidayit-in-opposition was not affirmed by the detaining authority. This Court, therefore, is not in a position to know the opinion of the detaining authority as all the statements made in the affidavit-in-opposition were verified as true to his knowledge derived from the official records. The said verification on the part of the deponent cannot be accepted in view of the fact that various statements had been made in the writ petition which could be answered only by the detaining authority or by the authorities of the custom department who had interrogated the petitioner on the aforesaid days. By way of example it may be stated that according to the petitioner he is a handicapped person and he is deaf to the extent of 80%. The aforementioned statement was traversed by the deponent stating:--
As already submitted in para 4 of this affidavit the detenue has been found to possess normal sense of hearing and also to be physically fit. He never complained of any disability during the course of investigation proceedings. Now also it is a mere statement not substantiated by any evidence. This pleas has now apparently been taken by him to disguide this Hon'ble Court and invoke sympathy of the Hon'ble Court on this false pretext.
Mr. Samarjit Ghosh, the learned Counsel appearing on behalf of the petitioner submits that in the instant case the petitioner has been detained on mere suspicion. The learned Counsel further submits that the detaining authority has failed to comply with the time limit as provided for under Article 22(5) of the Constitution of India. It was further stated that the employer of the petitioner has been released.
5. The learned Counsel contends that the detaining authority must act fairly and honestly and, thus on the base of a single transaction, no order of detention should have been passed. Reliance in this connection has been placed on M. Mohamed Sultan v. Joint Secretary to Government of India, Finance Department and Ors., reported in 1991(1) SCC 144.
6. Mr. B.R. Ghosal, the learned senior counsel appearing on behalf of the respondents on the other hand, submitted that in the instant case the connected records were placed within a period of three months from the date of detention before the Advisory Board. According to the learned Counsel although the petitioner was apprehended on the basis of a single transaction but upon reading the entire grounds of detention it would appear that there exists apprehension to the effect that the petitioner would indulge in similar activities in future. The learned Counsel however conceded that there is nothing to show that the petitioner in past has indulged in any such activity. According to the learned Counsel the fact the Monoj Kothari has been released on the basis of the opinion of the Advisory Board, is no ground for releasing the petitioner. Reliance in this connection has been placed on State of Rajasthan and Anr. v. Shamsher Singh, . The learned Counsel further submits that detention on the basis of a single instance is no ground for quashing the order of detention. Reliance in this connection has been placed on Shri Shiv Ratan Makim v. Union of India and Ors., , Swqj Pal Sahu v. State of Maharashtra and Ors., and Attorney General for India v. Amratlal Parjivandas and Ors., . According to the learned Counsel even retracted confession would be admissible in evidence and in support of his aforementioned contention reliance has been placed on Surjeet Singh Chhabra v. Union of India, .
7. Having gone through the entire grounds of detention and the show cause notice, it appears that the impugned order has been passed without any application of mind on the part of the detaining authority. Evidently the petitioner was charged with the allegation that he had been acting as a carrier of smuggled goods of Sri Monoj Kothari. The said fact has also been admitted in paragraph 8 of the affidavit-in-opposition in the following terms:
With regard to the statements made in paragraph 13 of the said petition, it is stated that it is beyond doubt that Sri Anup Ghosh engaged himself as a carrier knowingly and willingly with prior engagement with Sri Monoj Kothari and against monetary consideration. He was the actual carrier of smuggled goods although Rush Tag shows the name of Sri S. Chowdhury @ Tutu for weight pooling concession only. There is, therefore, no truth in his averments that he had been made victim of circumstances.
8. It may be further placed on record that there is nothing to show that Sri S. Chowdhury is a fictitious person or he had not travelled on the said plane on that date. In fact records produced before this Court clearly show that the baggage was booked in the name of Sri S. Chowdhury and the said baggage was missing.
9. The petitioner is a holder of a pass-port. It is not and cannot be the case of the detaining authority that he had been travelling on a false pass-port in the name of Sri S. Chowdhury.
10. The petitioner, therefore, although could be charged for abetting the act of smuggling on the part of Monoj Kothari, or transporting smuggled goods in the detention order it is stated:--
From the facts and circumstances of the case, evidence placed on records and statements recorded in connection with the seizure and in course of enquiry/investigation, it revelled that you on prior engagement with Sri Monoj Kothari acted as his carrier against monetory consideration and went to Hongkong along with him to bring this smuggled goods into India on behalf of Shri Monoj Kothari, that knowing fully well you received the bag from Shri Manoj Kothari at Hongkong Airport which contained the smuggled goods; that you claimed the baggage for clearance before Customs from which the smuggled wrist watch movements and other goods were recovered and seized, that you made yourself involved in every step of activities in course of acquisition, possession and transportation of the goods under seizure. Hence, I am convinced that you have knowingly engaged yourself along with Shri Monoj Kothari in smuggling of huge amount of wrist watch movement by way of mishandled baggage. Although the prosecution and adjudication proceedings under Customs Act are likely to be initiated against you in the matter but considering your activities, propensity and you inclination towards smuggling activities, I am satisfied that unless prevented you will continue to act in such pre-judicial manner in future. I am, therefore, satisfied that it is necessaiy to detain you under the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (as amended) with a view to preventing you from smuggling goods in future.
11. The detaining authority, therefore, on the face of the order of detention as also the show-cause notice as contained in Annexure 'A' to the writ petition appears to have ignored the said vital fact that Shri S. Chowdhury had travelled in the same plane and got the baggage in question registered in his name. The detaining authority appears to have proceeded on a surmise that the Rush Tag was only procured in the name of Sri S. Chowdhury although in the earlier paragraphs of the said order it was clearly stated that travelling agents categorically stated that Monoj Kothari, the petitioner and the aforementioned S. Chowdhury are also known to have purchased tickets for going to Hongkong. It is also on record that both the petitioner and the said S. Chowdhury were residing two Guest Houses located in the same building. In that view of the matter there is nothing to show that the petitioner involved himself in every step or activities in course of acquisition or possession of the goods under seizure nor there was any material for forming the opinion that the petitioner had engaged himself along with Sri Monoj Kothari in smuggling of huge amount of wrist watch movements by way of missing handled baggage. No case of acquisition or possession as against the petitioner has been made out. As noticed hereinbefore, both in the notices grounds of detention as also in paragraph 8 of the affidavit-in-opposition it had clearly been stated that the petitioner had been acting 'as carrier' with prior engagement with Sri Monoj Kothari and against monetary consideration. Thus, the petitioner could not have been detained on the ground of alleged charge of smuggling.
12. Section 3(1) of the COFEPOSA reads thus:--
The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purpose of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purpose of this section by that Government, may, if satisfied, with respect of any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from--
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained.
13. The very fact that the Parliament has chosen to divide the different activities into several categories under Section 3(1)(i) to 3(1)(iv) shows that they are different concepts against which the law aims to strike it. Therefore, where the allegations against the detenue were that he was at the Airport for taking delivery of a bagged registered in the name of Shri S. Chowdhury and the statement of detenue was that he was assisting him for obtaining smuggled gold and nowhere it had been attributed that he was a party to the act of smuggling, in our opinion, would render the order liable to be quashed because it showed that the authority had not applied its mind to the statutory provisions and to facts of the case properly resulting in a total misdirection in arriving at his satisfaction.
14. In Re. Manick Saha reported in 1996 C.Cr. LR (Cal) 136 it has been held that when different events stated in the order of detention which was in English and the Bengali version as also in the affidavit-in-opposition vary the order of detention cannot be sustained. Thus, the petitioner having been charged, having been found to be a carrier could not have been directed to be detained on the ground that he has himself smuggled the Wrist watches. Furthermore, in the instant case the detaining authority has not affirmed an affidavit which is always insisted upon by a court of law. It is further evident that the affidavit-in-opposition being not in accordance with law and having not been affirmed by the detaining authority, the same could not be relied upon.
15. Furthermore, it has not been denied or disputed that Monoj Kothari was the king pin. When the order of detention passed against him has not been upheld by the Advisory Board, it is difficult to comprehend as to on what ground and how the petitioner can be continued to be detained although charges against him and are that of Monoj Kothari is same, if not better. It is not one of those cases where the persons have been charged in different sets of facts although the case may be similar. In State of Rajasthan and Anr. v. Shamsher Singh which Mr. Ghosal has placed strong reliance the Apex Court was dealing with a case where the court having found that the order of detention against the detenue was absolutely valid in law refused to interfere on the ground that many detenues like the respondents have been and are being released. Such a statement was a vague one and there was no material in support of the said contention. In the instant case, the material against Monoj and the petitioner are the same. Both of them having been detained under the same order and on interrelated grounds. It is, therefore, not also a case where persons were mere accomplished of a detenue and were released although the ground of detention in the case of the concerned person was absolutely on a separate and distinct ground. Furthermore, the submission of Mr. Ghosal to the effect that the Central Government may consider the said matter cannot also be accepted in view of the fact that the Central Government had already passed an order dated 12.5.1997. It has also to be borne in mind that from Annexure 'E' to the writ application it appears that the Central Government has not applied its own mind on the materials placed on records but proceeded to refuse the representation of the petitioner only on the ground that the Advisory Board was of the opinion that there is sufficient cause for his detention.
It is now well known by reason of various decisions of the Apex Court that the detaining authority as also the Central Government were bound to consider the representation of the petitioner despite the fact, that the same had been placed before the Advisory Board. The consideration of representation on the part of the detaining authority and the Central Government stand absolutely on different footing. As noticed hereinbefore the representation was addressed to the appropriate authority of the Central Government and thus it was obligatory on the part of the Central Government to dispose of the said representation within a reasonable period. The petitioner in terms of Article 22(5) of the Constitution of India has right to get his representation considered by the appropriate Government. The Central Government being the appropriate Government has failed to discharge its constitutional obligation and, thus, the impugned order cannot be sustained.
17. We may however place on records that it is not possible to accept the contention of Mr. Ghosh to the effect that the petitioner should be released on the ground that the order of detention has been passed on the basis of one such transaction. The events which have been described in the notice as contained in Annexure "A" as also the ground of detention as contained in Annexure "B" to the writ application clearly go to show that from such a single transaction also, the possibility of the petitioner indulging in such activities in future cannot be ruled out.
18. In Suraj Pal Sahu v. State of Maharashtra and Ors. , Sabyasachi Mukherji, J. held as follows:--
It must therefore be held that even the existence of one ground was sufficient to sustain the detention order.
In Debu Mahato v. The State of West Bengal it was held:--
One solitary isolated act of wagon breaking committed by the petitioner could not possibly persuade any reasonable person to reach the satisfaction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking. Of course, this does not mean that in no case can a single solitary act attributed to a person from the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so it is necessary to detain him.
In M. Mohamed Sultan v. Joint Secretary to Government of India, Finance Department and Ors. reported in 1991(1) SCC 144 almost in a similar situation the Apex Court held:--
An order for preventive detention is founded on a reasonable prognosis of the future behaviour of a person, based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. The question which, therefore, needs to be considered is whether from the past conduct of the petitioner as set out in the grounds of detention it could reasonably be inferred that the petitioner would be likely to repeat such acts in the future. The facts stated in the grounds would show that the petitioner was indulging in the activity of smuggling of gold as a carrier for monetary consideration. This was a deliberate act on the part of the petitioner and he had prepared himself for it by obtaining a passport in a false name and acquiring requisite skill to conceal such a large quantity of gold in his body. Taking into consideration the circumstances referred to above an inference could reasonably be drawn that unless detained the petitioner would be likely to indulge in smuggling of goods in future and, therefore, there was a reasonable basis for the detaining authority to arrive at the requisite satisfaction.
20. Similar view has been taken in Abdul Satgar Ibrahim Manik v. Union of India and Ors. , wherein it has held:--
The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted. It is again a question of satisfaction of the detaining authority on the basis of the material placed before it. Even a solitary' incident which has been detected any speak volumes about the potentialities of the detenue and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the potentialities of a detenue in the activities of smuggling.
21. In a recent decision in Attorney General for India etc. v. Amratlal Parjivandas and Ors. , B.P. Jeevan Reddy speaking for a Constitution Bench stated the law in the following terms:--
Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decision of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person.
22. The learned Judges upon consideration of various decisions observed:--
In short the principle appears to be this: though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation or organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal materials, theft of telegraph copper wires in huge quantity and removal of railway fish plates were held sifficient. Similarly, where the person tried to export huge amount of Indian currency to a foreign currency in a planned and pre.. meditated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or af foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has international ratifications. These acts are preceded by a good amount of planning and organisation. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.
23. In the facts and circumstances of the case it is also not possible to accept the submission of Mr. Ghosh that the order of detention has been passed on mere suspicion.
24. For the reasons aforementioned this application is allowed and the order of detention dated 14.2.1997 as contained in Annexure 'B' to the writ application is quashed. Let a writ of Habeas Corpus do issue. The petitioner be set at liberty unless wanted in connection with any other case. In the facts and circumstances of the case there shall be no order as to costs.