Gujarat High Court
Harish Anand vs Union Of India And Ors. on 4 December, 1995
Equivalent citations: (1996)1GLR197
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT J.M. Panchal, J.
1. By means of filing this petition under Article 226 of the Constitution, Harish Anand-detenu herein is seeking to challenge the order of detention dated January 17, 1995 issued by respondent No. 3, i.e., Additional Chief Secretary to Government of Gujarat, Home Department (Spl.), under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("the Act" for short) and prays to issue a writ of habeas corpus directing his release after quashing the detention order.
2. The order of detention was executed on January 30, 1995. The communication dated January 17, 1995 which was served on the petitioner at the time of his detention intimated to him the following grounds on which the order of detention was made by the respondent No. 3:
(i) On December 15, 1993, the vessel MSV-AL-BILAL/PBR- 273 arrived at Bedi Port, Jamnagar with cargo of wet dates. The usual customs formalities were completed and cargo of wet dates was unloaded. In the meanwhile, officers of DRI received intelligence that ball bearings of foreign origin were concealed in the said vessel. Therefore, the officers of DRI and Customs, Jamnagar rummaged the said vessel on December 16,1993. They recovered 136 packages containing ball bearings of foreign origin from the two diesel tanks fitted in the said vessel. On examination of those 136 packages 1,98,832 pieces of ball bearings of foreign origin valued at Rs. 47,20,970/- were found. Further rummaging of the said vessel on December 17, 1993 resulted in recovery of 55 more packages containing ball bearings of foreign origin which were found concealed in 'Atri' (A space between two wooden planks on the border of the vessel). On examination of those 55 packages, 24,422 pieces of ball bearings of foreign origin valued at Rs. 10,71,068/- were found. As Abdul Wahab Issa Ker, tindel of the vessel, could not produce any valid documents for the licit import and lawful acquisition of the aforesaid 2,23,254 pieces of ball bearings of foreign origin totally valued at Rs. 57,92,038/-, the same were seized by the officers of DR1 under the reasonable belief that they were smuggled into India and were liable to be confiscated under the provisions of the Customs Act, 1962. The vessel Al-Bilal was also seized for taking appropriate actions under the provisions of the Customs Act, 1962.
(ii) S/Shri (1) Abdul Wahab Issa Ker (tindel), (2) Adam Juma Chamadia, (3) Osman Ismail Shaikh, (4) Gulam Husen Umar Turk, (5) Anwar Husen Karim, (6) Harun Issak Sodha, (7) Majid Zikar Modi, (8) Aziz Kasam Sameja, (9) Suleman Musa Theim, (10) Junus Usman Mokha, (11) Iqbal Issa Ker, (12) Jabbar Issa Ker, (13) Eliyas Haji Hala, and (14) Abdul Ibrahim Theim were the crew members of vessel AL-BILAL at the time of its seizure.
(iii) The investigation revealed that Karim Issa Ker was the owner of the vessel MSV-AL-BILAL PBR-273 and his younger brother Abdul Wahab Issa Ker was the tindel of the said vessel. The said vessel had left with cargo of live-stock from Tuna Port on November 23,1993 and reached Hamriya Port on November 28, 1993. The tindel, i.e., Abdul Wahab arranged cargo of wet dates of Jamnagar. Meanwhile, Abdul Wahab Issa Ker met one Ali Raja (Jamnagarwala) at Dubai and finalised deal to smuggle ball bearings from Dubai to India on consideration of 10,000 Dirhams. Ali Raja paid 7,000 Dirhams as an advance and informed tindel Abdul Wahab to wait for the telephonic message after reaching Salaya. 60 packages of ball bearings were loaded in the said vessel at Hamriya Port with the help of crew of the vessel. The vessel sailed on December 2, 1993 with the cargo of wet dates as well as ball bearings. The packages of ball bearings were torn and converted into smaller packages by the crew members and the same were concealed in the diesel tank as well as in Atri. The vessel reached at Rozi Port near Jamnagar on December 14, 1993. During the usual custom formalities, the tindel declared the licit cargo of wet dates, but did not declare the ball bearings which were smuggled from Dubai. The vessel was thereafter taken to Bedi Port where the licit cargo of wet dates was unloaded. On December 16 and 17, 1993, the officers of Customs and DRI rummaged the vessel and recovered the packages containing ball bearings of foreign origin as detailed above.
(iv) The investigation also indicated that the said vessel had earlier left from Bombay on October 8, 1993 with cargo of onion, potato and reached at Hamriya Port on October 15, 1993. After unloading the cargo, the vessel was brought to Sharjah on October 17, 1993 for some repair work. In the meanwhile, Abdul Wahab Issa Ker (tindel) and Adam Juma Chamadia went to Dubai in search of some cargo for India. One Eliyas Kasam Bhadela of Salaya who was staying in Dubai met Adam Juma Chamadia in a Hotel in Kadar Chowk while Adam Juma Chamadia was taking tea there. Eliyas informed Adam Juma Chamadia that if any vessel was ready to take ball bearings illegally from Dubai, one Ali Raja (Jamnagarwala) was prepared to supply. The tindel showed his willingness for the same on a consideration of 10,000 Dirhams. The tindel Abdul Wahab met Ali Raja and finalised the deal to smuggle 30 packages of ball bearings. The ball bearings were brought in a pickup van and loaded in the vessel. Next day, Abdul Wahab (tindel) went to Dubai and met Alibhai, who gave him 5,000 Dirhams. Alibhai also gave his telephone Nos. 255013, 050523907 and 9746061 of Dubai and Abdul Wahab (tindel) gave his brother's telephone No. 286 of Salaya. Alibhai also informed him to remember the name "Harish" and told Abdul Wahab that he (Ali Raja) would give instructions on telephone for delivery of ball bearings after the vessel reached Salaya. The vessel finally sailed for Salaya. On way, big 30 packages of ball bearings were converted into smaller packages and concealed in the diesel tank. The vessel arrived at Salaya on November 1, 1993 and tindel went home after completing the usual customs formalities. Abdul Wahab met Osman Ismail Shaikh in Salaya and informed him that he (Abdul Wahab) had smuggled the packages of ball bearings and conviced him to keep the packages of ball bearings in his (Osman's) house for a consideration of Rs. 2,500/- for a night. The packages of smuggled ball bearings were transhipped from the vessel AL-BILAL to the house of Osman Ismail Shaikh in two trips by a tony. In the first trip of the tony, Babu Karsan and Eliyas Haji Hala had gone while in the second trip of tony, Adam Juma Chamadia, Eliyas Haji Hala, Majid Jikar Modi and Babu Karsan had gone.
(v) On November 3, 1993, Abdul Wahab received a telephone call from Ali Raja of Dubai, who wanted to speak to Adam Juma Chamadia. Abdul Wahab called Adam Juma Chamadia and informed that Ali Raja would telephone from Dubai. Ali Raja telephoned from Duabi and spoke to Adam Juma Chamadia and gave the name and address of the Delhi party to whom the smuggled ball bearings were to be delivered. Adam Juma Chamadia was illiterate. Therefore, Abdul Wahab wrote the name and address of the Delhi party on a paper chit and gave the same to Adam Juma Chamadia. Adam Juma Chamadia went to Jamnagar the next day and approached one Chetanbhai of Ranjit Roadlines of Jamnagar for despatching the ball bearings to Delhi. Chetanbhai refused to book the goods, as Adam Juma Chamadia had no bills or valid documents for the same. Owners and/or Managers of other transport companies who were approached by Adam Juma Chamadia also refused to book goods, as Adam Juma Chamadia had no bills or valid documents for the same. Thereupon Adam Juma Chamadia approached the detenu at M/s. Jamnagar Golden Carriers Private Limited for despatching the ball bearings to Delhi without bills or valid documents. The detenu asked Adam Juma Chamadia to produce bills or valid documents pertaining to ball bearings. Thereupon Adam Juma Chamadia told the detenu that he had no bills or valid documents pertaining to ball bearings. The detenu asked Adam Juma Chamadia to come the next day with a sample of ball bearing. Accordingly, Adam Juma Chamadia and Osman Ismail Shaikh went to Jamnagar from Salaya with a sample of ball bearing and showed the same to the detenu. The detenu after examining sample of ball bearing agreed to despatch ball bearings to Delhi for a consideration of Rs. 10,000/-.
(vi) After returning to Salaya from Jamnagar, Adam Juma Chamadia met Abdul Wahab Issa Ker and informed him that arrangements to despatch the goods to Delhi were finalised for a consideration of Rs. 10,000/- and collected Rs. 10,000/- from him. Adam Juma Chamadia also engaged one Jivangar Gangagar Meghnath, a driver of Mugani Transport to transport 181 packages from Salaya to Jamnagar for a consideration of Rs. 1,000/-. Accordingly, 181 packages were transported from Salaya to Jamnagar in a truck bearing registration No. GTY-5567 on November 5, 1993 and the same were delivered to the detenu at Jamnagar Golden Carriers Private Limited at Jamnagar. Adam Juma Chamadia and Osman Ismail Shaikh had followed the said truck on a motor-cycle. The detenu despatched the goods to Delhi in one of his trucks and passed on receipt of goods to Adam Juma Chamadia on two plain paper chits indicating "Please deliver 181 packages of RJT", so that the receiver of those 181 packages could take delivery of the goods from Delhi branch of M/s. Jamnagar Golden Carriers Pvt. Ltd. situated at Roshanara Road, Delhi, as the goods were not accompanied by any valid bills or documents and they were not entered in any bilti.
(vii) After despatching the goods to Delhi and obtaining the receipt, Adam Juma Chamadia and Osman Ismail Shaikh again came to Jamnagar from Salaya after 2 to 3 days with the said receipt given by the detenu. Adam Juma Chamadia purchased a cover from a shop in Jamnagar and put the said receipt in the cover. He requested the shop-keeper to write the address of Delhi party which was communicated to Adam Juma Chamadia by Ali Raja through Abdul Wahab Ker. Adam Juma Chamadia and Osman Ismail Shaikh despatched the said cover to Delhi through Pandya Couriers, Jamnagar. Inquiries made with Pandya Couriers, Jamnagar indicated that one cover addressed to Harishkumar, Multani Thada, First Floor, Pahadganj, House No. 8811, Street No. 4, Delhi, Phone No. 735278 was sent by Adambhai (i.e., Adam Juma Chamadia) from Jamnagar on November 9, 1993. However, the said cover appeared to have been received back in Jamnagar office of Pandya Couriers as unserved. On examination of the said cover in presence of the panchas on December 19, 1993, it was found to contain paper receipt indicating "Please deliver the 181 packages of RJT" signed by the detenu which was given to Adam Chamadia by the detenu.
(viii) As regards the delivery of those 181 packages at Delhi, one person who disclosed his identity as Harishkumar, approached the Delhi Branch office of Jamnagar Golden Transport to take delivery of those 181 packages. The Manager S.K. Agnihotri (Mishraji) asked for the bilti, whereupon Harishkumar informed that he was not having any bilti, but he was the person to take delivery of the goods and asked Mishraji to speak to Jamnagar office for confirmation. Thereupon, Mishraji telephoned to Jamnagar office from Delhi and spoke to the detenu and detenu instructed Mishraji to deliver those 181 packages to Harishkumar. Accordingly, the said 181 packages were delivered to Harishkumar in Delhi.
(ix) Abdul Wahab Issa Ker met Ali Raja in Dubai in the last week of November 1993 for finalising deal to smuggle second consignment of ball bearings. Ali Raja had informed Abdul Wahab Issa Ker that ball bearings smuggled in the first trip had reached the destination. The statement of Adam Juma Chamadia indicated that ball bearings under serizure, if not seized would have been despatched to Delhi through the detenu.
(x) On consideration of materials placed before it, the detaining authority was satisfied that Abdul Wahab Issa Ker and Adam Juma Chamadia had played an important role in smuggling ball bearings from Dubai to India and Adam Juma Chamadia had also played an important role in making arrangements for transporting the smuggled ball bearings from Salaya to Jamnagar and from Jamnagar to Delhi. The detaining authority was convinced that Osman Ismail Shaikh played an important role in making arrangements for temporary storage and transportation of smuggled ball bearings from Salaya to Jamnagar in addition to smuggling the same. The detaining authority was satisfied that the detenu played an important role in despatching the smuggled ball bearings from Jamnagar to Delhi in one of detenu's trucks for a consideration of Rs. 10,000/-. The detaining authority, therefore, with a view to preventing the detenu from engaging in transporting smuggled goods passed the impugned order of detention.
3. It is not in dispute that the procedural requirements enjoined by the Act and Article 22(5) of the Constitution have been complied with by the detaining authority, Advisory Board and the State of Gujarat.
4. Several contentions are raised in the petition while assailing the validity of the order of detention. However, it is not necessary to refer to all of them, except those which are pressed by the Learned Counsel for the petitioner at the time of hearing of the petition.
5. Mr. N.K. Sinha, Assistant Commissioner of Customs (P) Ahmedabad has filed affidavit-in-opposition adopting the affidavit-in-reply filed by the Mr. P.K. Mishra, Assistant Commissioner of Customs in (COFEPOSA) in Special Civil Application No. 3260 of 1995 which is filed by Adam Juma Chamadia for challenging the order of detention passed against him. Mr. Sinha has also denied the averments made in the petition. Miss G.K. Mehta, Under Secretary to Government of Gujarat, Home Department (Spl.), Sachivalaya, Gandhinagar has filed affidavit-in-opposition on behalf of respondent Nos. 2 and 3 controverting the statements made in the petition. However, it is not necessary at this stage to refer to in detail the averments and contentions raised in the affidavits-in-reply filed on behalf of the respondents.
6. Mr. Ashok Arora, Learned Counsel for the petitioner contended that neither the grounds of detention nor the statements of the petitioner and others recorded under Section 108 of the Customs Act indicate in any manner that the detenu was knowing that the goods allegedly transported by him were smuggled goods. It was emphasised that the reply filed by the Custom authorities to the application for anticipatory bail filed by the detenu did not indicate that the detenu was involved in commission of any offence punishable under the provisions of the Customs Act, 1962. The Learned Counsel, therefore, pleaded that as the materials on record do not indicate that the case of the detenu falls within the purview of Sections 112 and 113 of the Customs Act, the detenu cannot be said to have been engaged in smuggling activities within the definition of Section 2(e) of the Act so as to warrant passing of the detention order against him and, therefore, the impugned order deserves to be set aside. This ground of challenge is raised in para-4(VIII) of the petition. Mr. Y.F. Mehta, learned A.G.P. extensively referred to the statements of the petitioner and others recorded under Section 108 of the Customs Act, 1962 and pleaded that there is sufficient material on record of the case on the basis of which the detaining authority could have satisfied itself that the detenu had knowledge about nature of the goods despatched by him and, therefore, the order of detention should not be voided on the ground that the detenu had no knowledge about nature of the goods allegedly transported by him.
7. From the grounds of detention and the documents which are on record of the case, it is evident that the petitioner is carrying on transport business in the name of "Jamnagar Golden Carriers Private Limited" at Jamnagar. After the contraband goods were brought to Salaya, Adam Juma Chamadia went to Jamnagar on November 4, 1995 and approached one Chetanbhai of Ranjit Roadlines of Jamnagar for despatching ball bearings to Delhi. Chetanbhai refused to book the goods, as Adam Juma Chamadia had no bills or valid documents for the same. The statement of Adma Juma Chamadia clearly indicates that the owners and/or Managers of other transport companies also refused to book the goods, as Adam Juma Chamadia had no bills or valid documents. Thereupon the detenu was approached by Adam Juma Chamadia for despatching the ball bearings to Delhi without bills or valid documents. The statement of the detenu indicates that he demanded bills and/or valid documents pertaining to the goods for despatching them to Delhi. However, Adam Juma Chamadia informed the detenu that he had no bills or valid documents pertaining to the goods. Thereupon, the detenu asked Adam Juma Chamadia to bring one of the samples of the goods. Accordingly, on the next day, Adam Juma Chamadia and Osman Ismail Shaikh went to Jamnagar from Salaya with a sample of ball bearings and showed the same to the detenu. The detenu thereafter agreed to despatch the goods to Delhi for a consideration of Rs. 10,000/- giving complete go-by to the practice followed by him of preparing bills, etc., for despatching goods from one destination to another. The materials on record also indicate that Adam Juma Chamadia returned to Salaya and engaged one Jivangar Gangagar Meghnath, a driver of Mugani Transport to transport 181 packages from Salaya to Jamnagar for a consideration of Rs. 1000/-. Accordingly, 181 packages were transported from Salaya to Jamnagar in a truck bearing registration No. GTY-5567 on November 5, 1993 and the same were delivered to the detenu at his transport office. Adam Juma Chamadia and Osman Ismail Shaikh had followed the said truck on a motor-cycle. The detenu not only despatched the goods to Delhi in one of his trucks, but also used code and passed on receipts of goods to Adam Juma Chamadia on two plain paper chits indicating "Please deliver 181 packages of RJT" so that the receiver of those 181 packages could take delivery of the goods from Delhi branch office of Jamnagar Golden Carriers Private Limited situated at Roshanara Road, Delhi, as the goods were not accompanied by any valid bill or document and they were not entered in any bilti. As narrated in para-7 of the grounds of detention, chits were subsequently recovered in presence of panchas on December 19, 1993. So far as delivery of those 181 packages at Delhi is concerned, one person who disclosed his identity as Harishkumar, approached Delhi branch office of Jamnagar Golden Transport to take delivery of those 181 packages. The Manager Mr. S.K. Agnihotri (Mishraji) asked for the bilti, whereupon Harishkumar informed that he was not having any bilti, but he was the person to take delivery of the goods and asked him to speak to Jamnagar office for confirmation. Thereupon, Mishraji telephoned to Jamnagar office from Delhi and spoke to the detenu and the detenu instructed Mishraji to deliver those 181 packages to Harishkumar. Accordingly, said 181 packages were delivered to Harishkumar in Delhi. The manner in which the petitioner gave go-by to the usual practice for despatching goods from one destination to another, use of code number by the detenu, statement of Adam Juma Chamadia recorded under Section 108 of the Customs Act, 1962 etc. would certainly enable the detaining authority to form subjective satisfaction about knowledge of the detenu regarding nature of goods transported by him. The order passed by the High Court on the application for anticipatory bail filed by the detenu is considered by the detaining authority. On consideration of materials placed before it, the detaining authority was satisfied that the detenu was engaged in transporting smuggled goods. Therefore, it is difficult to come to the conclusion that case of the detenu is not covered within the definition of Section 2(e) of the Act. This cannot be said to be a case of no evidence. As noted above, on consideration of the materials placed before it, the detaining authority was satisfied that the detenu had knowledge about smuggled nature of goods which were transported from Jamnagar to Delhi and this Court while hearing a petition of habeas corpus under Article 226 of the Constitution cannot reverse said satisfaction by sitting in appeal over order of detention.
8. At this stage, it would be relevant to notice certain decisions rendered by the Supreme Court on the point:
In the case of State of Gujarat v. Adam Kasam Bhaya, the order of detention which was passed under Section 3(1) of the Act was challenged before the Gujarat High Court. The High Court held, "the above material on the record, therefore, was not sufficient for reaching a genuine satisfaction that the petitioner was engaged in smuggling activity and it was necessary to detain him with a view to preventing him from indulging in that activity in future". According to the High Court, "the satisfaction reached by the detaining authority cannot be said to be genuine on the material which was placed before the detaining authority". In view of these conclusions, the High Court quashed the order of detention on the ground that the respondents, at the time of joining the vessel as a member of crew, had no full knowledge that the vessel was to be used for smuggling activity. The State of Gujarat, therefore, carried the matter in appeal before Supreme Court. While allowing the appeal, the Supreme Court has made the following pertinent observations in para-5 of the judgment:
Now to turn to the merit. The order of High Court is clearly erroneous. The High Court has misdirected itself to its jurisdiction to inquire into the order of detention by an authority. The High Court, accepting the contention of the Counsel of the detenu, before it has held that there was no material on record to prove knowledge of the detenu with the contraband goods in the vehicle. By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond a reasonable doubt into the law of detention. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. The judgment of the High Court, therefore, is liable to be set aside. We set aside the order of the High Court and allow the appeal.
9. It is needless to say that High Court under Article 226 of the Constitution does not sit in appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed, the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Sub-Article (5) of Article 22 of the Constitution. The High Court under Article 226 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court. On a habeas corpus petition, what has to be considered by the Court is whether detention is prima-facie legal or not, and not whether the detaining authorities have wrongly or rightly reached a satisfaction on every question of fact. Courts have, no doubt, to zealously guard the personal liberty of the citizen and to ensure that the case of a detenu is justly and impartially considered and dealt with by the detaining authorities and the Advisory Board. But, this does mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Board by the law of preventive detention or function as Courts of Appeal on questions of fact. (See: (i) Ram Bali Rajbhar v. State of West Bengal and Ors., , (ii) Smt. Hemlata Kantilal Shah v. State of Maharashtra and Ors., .
10. On the facts and in the circumstances of the case, it is difficult to conclude that the petitioner had no knowledge about nature of goods transported by him. Therefore, the first contention which is raised on behalf of the detenu cannot be accepted.
11. Learned Counsel for the petitioner submitted that there is unexplained delay in passing the order of detention and as live link between prejudicial activities attributed to the detenu and the purpose sought to be achieved by the order of detention, is snapped, the detention order deserves to be set aside. It was submitted that the petitioner allegedly transported smuggled goods on November 5, 1993, and the order of detention was passed on January 17, 1995 and, therefore, in view of delay of about 13 months in passing the order of detention, it cannot be said that the detaining authority was genuinely satisfied about the need to detain the detenu with a view to preventing him from engaging in trasporting smuggled goods and, therefore, relief claimed in the petition should be granted. The plea regarding delay in passing the order of detention is raised in para-4 (IV) of the petition. In support of this plea, the Learned Counsel has placed reliance on the decisions rendered in the cases of (i) Abbas Ismail Chavda and Anr. v. Union of India and Ors., Special Criminal Application No. 1627 of 1992, decided on April 20, 1993 by a Division Bench comprising G.T. Nanavati, J. (as he then was) and S.M. Soni, J., (ii) Noormohmad Yakub Saiyad alias Bhaya v. Government of Gujarat and Ors., Special Civil Application No. 3933 of 1995, decided on July 17, 1995 by S.D. Dave, J., (ii) Anand Prakash v. State of U.P. and Ors., JT 1989(4) SC 557, and (iv) Issac Babu v. Union of India and Anr., .
12. As noted earlier, Mr. N.K. Sinha, Assistant Commissioner of Customs (P), Ahmedabad has filed affidavit-in-opposition and adopted the affidavit-in-reply filed by Mr. P.K. Mishra, Assistant Commissioner of Customs (COFEPOSA) in Special Civil Application No. 3260 of 1995. The affidavit-in-reply filed by Mr. P.K. Mishra, Assistant Commissioner of Customs (COFEPOSA) explains the steps taken by the Sponsoring Authority. The affidavit filed by him indicates the following facts:
Seizure of goods took place on December 15, 16 and 17, 1993. Thereafter investigation was carried out by the Assistant Collector, Jamnagar at Jamnagar who recorded statements of various persons under Section 108 of the Customs Act as indicated in para-4 of the reply. The reply indicates that the Assistant Commissioner of Customs, Jamnagar forwarded particulars of several cases to COFEPOSA section on February 17, 1994. On February 25, 1994, the Assistant Commissioner, COFEPOSA Cell, Ahmedabad called for detailed note in respect of seizure of goods from the Assistant Collector, Customs, Jamnagar. Accordingly, the Assistant Collector, Jamnagar submitted detailed note about seizure etc. vide letter dated March 16,1994 which was received in the Collectorate office on March 20, 1994. The case was thereafter examined from the view point of provisions of the Act and certain more details were called for from the Assistant Collector of Customs, Jamnagar on May 10, 1994 and May 20, 1994. The details were received on May 23, 1994. In the meanwhile, file containing the detailed note on the seizure of contraband goods, follow-up action and development on legal side were placed before the Custom Collector (Preventive), who decided on May 26, 1994 that the materials be placed before the Screening Committee to recommend names of the persons against whom orders of detention should be passed. Accordingly, materials relating to the cases were forwarded to the members of Screening Committee on May 31, 1994. The Screening Committee met on June 4, 1994 and recommended names of the persons involved in the case for action under the COFEPOSA Act. Therefore, copies of documents were collected, translated into Gujarati language and separate sets of documents in respect of each individual person were prepared. In the meanwhile, proposal for detaining two persons who were involved in another case was also cleared by the Screening Committee on June 6, 1994. Those proposals were processed and submitted to the State Government for necessary action. The affidavit filed by Mr. Mishra indicates that services of officers discharging duties in COFEPOSA Cell were also requisitioned and ultimately, proposal for detention was sent to the detaining authority on July 22, 1994.
13. The affidavit filed by Miss G.K. Mehta on behalf of the respondent Nos. 2 and 3 indicates that the proposal to detain the detenu and other five persons was received by the COFEPOSA Branch of the Home Department on July 22, 1994. Moreover, two other proposals for detention of three persons involved in another cases, were also received prior to the proposal in question which was received on July 22, 1994. Voluminous documents were scrutinized and more information required was called for from the Custom Collector on September 2, 1994. The Custom Collector was again reminded on September 16, 1994 to forward the particulars required by Government. The Custom Office sent necessary information vide letter dated September 21, 1994. In continuation of letter dated September 21, 1994 further particulars were sent to the State Government by the Office of the Custom Collector on October 17, 1994. Meanwhile, the D.S.P., Jamnagar was also requested to send certain information in respect of co-detenus in the case. While going through the papers it was noticed that some more documents to be supplied to the detenu and, therefore, those documents were called for from the Custom Collector vide letter dated November 23, 1994. Finally, the required information and documents were received from the Collector of Customs on January 5, 1995 by the COFEPOSA Branch and put-up before Miss Mehta, Under Secretary on January 9, 1995. Miss Mehta cleared the file on January 11, 1995 and put up the file together with materials for consideration before the Deputy Secretary. The Deputy Secretary cleared the file on January 13, 1995 and put-up the papers before the Additional Chief Secretary, i.e., the detaining authority. The affidavit filed by Miss Mehta indicates that the detaining authority, after carefully considering the entire materials placed before and after arriving at subjective satisfaction, passed the impugned order of detention on January 17, 1995.
14. In view of the above facts, the question which arises for consideration of the Court is whether delay in passing the order of detention can be said to have vitiated subjective satisfaction of the detaining authority, namely, it was necessary to detain the petitioner with a view to preventing him from transporting smuggled goods?
15. In the case of Rajendrakumar Natwarlal Shah v. State of Gujarat and Ors., the Supreme Court has emphasised and made it clear for the guidance of different High Courts that a distinction must be drawn between the delay in making of detention order under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. The Supreme Court has highlighted the principle that in the cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering, who owing to their resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely 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 inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. The Supreme Court has further cautioned that taking of such 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 pertinent observations which have been made by the Supreme Court are to be found in Para-9 of the reported judgment of the Supreme Court which are as under:
In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activities complained of under Section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by person forming a syndicate or having a wide network and therefore, this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purposes of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes, such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures, i.e., launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person under Section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Article 22(5) would not be satisfied unless the basic facts and materials which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
16. Again, in the case of Smt. Hemlata Kantilal Shah (supra), the Supreme Court has held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. After considering the earlier decisions of the Supreme Court rendered in the cases of (i) Lakshman Khatik v. State of West Bengal , (ii) Sk. Abdul Munnaf v. State of West Bengal , and (iii) Rabindra Kumar Ghosel v. State of West Bengal, , what is emphasised by the Supreme Court is that delay must be satisfactorily explained by the detaining authority.
17. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activity of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in future. (See: Gora v. State of W. B. .
18. In Special Criminal Application No. 1627 of 1992, decided on April 20, 1993, the incident of smuggling had taken place on December 18, 1991. The detenu of that case was detained with a view to preventing him from smuggling goods. The whole investigation in connection with the incident was over on December 23, 1991. The detenu and others were also taken into custody on December 23, 1991. Though the detenu was thereafter remanded to judicial custody till January 6, 1993, even then no steps were taken against the detenu till the order of detention came to be passed on July 4, 1992. The Court on consideration of the facts, came to the conclusion that the order of detention was passed because a proposal was made to the detaining authority to that effect. On consideration of the relevant materials, the Court was satisfied that the detaining authority was not alive to the aspect that an order of detention can be passed if it is found, and not mechanically, that it is necessary to do so with a view to preventing a person from carrying on prejudicial activity referred to in Section 3. The Court also found that action of passing detention order was by way of punishment rather than for preventing the detenu from carrying on the alleged activity of smuggling. It was also found that the order of detention was not promptly executed. On the totality of the facts, the Court came to the conclusion that delay in passing the order of detention and execution of the same vitiated subjective satisfaction of the detaining authority.
19. In Special Civil Application No. 3933 of 1995 decided on July 17, 1995, it was noticed that the incident had occurred on February 14, 1993. Involvement of the petitioner in that case came to the knowledge of the competent authority as early as in the month of February, 1993 and later on June 30, 1993. Despite this, the order of detention came to be passed on October 5, 1994. The affidavit-in-reply filed on behalf of the detaining authority in that case indicated that the orders of detention in respect often other people were passed on March 17, 1994. The Court found that there was no effort on the part of the detaining authority to explain delay. In view of the unexplained delay and on the facts and in the circumstances of the case, the Court came to the conclusion that delay in passing the order of detention was fatal to the order of detention, as it vitiated subjective satisfaction of the detaining authority.
20. In the case of Anand Prakash (supra), the Supreme Court had occasion to consider challenge to validity of the order of detention passed under the provisions of the National Security Act. Theft of wires took place on February 14, 1989 and the F.I.R. was registered on February 18, 1989. On that day itself, Jagdish, Santosh and Munshi Sharma were shown as accused on the basis of some information. The house of Jagdish was raided on March 3, 1989 and on the same day, factory of the detenu was raided and 20 kg., of melted electric wire was recovered from Munshi Sharma, but no action was taken till May, 1989 against the detenu. On being arrested on May 2, 1989 the detenu moved a bail application. The order of detention was passed on May 3,1989. Though the bail was granted, in view of the detention order, the detenu could not be released from jail. The Learned Counsel for the detenu contended that there was an unexplained delay which made the grounds of detention not proximate vitiating the order of detention itself. The Supreme Court noted that delay had not been satisfactorily explained in the counter-statement of the respondents. Under the circumstances, the Supreme Court held that ground instance could not be a proximate cause for a sudden decision to take action under the National Security Act and this vitiated the order of detention.
21. In the case of Issac Babu (supra) there was delay of 11 months in passing the order of detention under the provisions of the COFEPOSA Act. The explanation that investigation took five months to complete and thereafter time was taken in processing records for issuing show-cause notice, as the Customs Act mandatorily required issuance of such notice within six months from the date of detection of the case, was not found to be satisfactory. Therefore, the Supreme Court quashed the order of detention.
22. In my opinion, none of the decisions relied on by the Learned Counsel for the petitioner is of any assistance to the petitioner.
23. From the facts of the case and more particularly the grounds of detention, it is apparent that the detaining authority was aware of the fact that some time had elapsed between the date of incident and the date of passing of the detention order and yet it is indicated in the grounds that the detaining authority formed subjective satisfaction that having regard to the prejudicial activities attributed to the detenu, it was necessary to detain him with a view to preventing him from engaging in transporting smuggled goods. Para 14 of the grounds of detention reads as under:
I am also satisfied that there is no delay in initiating action under the COFEPOSA Act, 1974 and that the nexus between the date of incident and the passing of this detention order as well as the object of your detention has been maintained.
In my opinion, time-lag between the date of alleged incident and the date of making of detention order cannot be treated as so large that it can be said that no reasonable person could possibly arrive at the satisfaction which the detaining authority did on the basis of the material placed before it. Delay in making the order of detention was not occasioned by any laxity on the part of the sponsoring authority or detaining authoirty, but was result of full and careful consideration of the facts and circumstances of the case. The allegations of transport of smuggled goods levelled against the detenu from their very nature are continuous ones and not limited or restricted to any prticular period and, therefore, delay in ordering detention would not snap tie between the prejudicial activities and the purpose sought to be achieved by order of detention. As noted by the Supreme Court in the case of Rajendrakumar N. Shah (supra) some time is bound to elapse before investigation of the alleged incident is completed and the matter is brought to the notice of the detaining authority and the detaining authority applies its mind and arrives at requisite satisfaction culminating into order of detention. The delay in passing the order of detention is satisfactorily explained by the sponsoring authority and the detaining authority. Having regard to the explanation offered by the sponsoring authority as well as on behalf of the detaining authority, it cannot be said that period of about 13 months which lapsed between the date of alleged incident and the date of making of order of detention, has in any manner vitiated subjective satisfaction of the detaining authority or indicates that the satisfaction was colourable or no satisfaction at all was formed as required by the statute. The satisfaction which the detaining authority is required to reach in order to support the detention order is that it is necessary to detain the petitioner with a view to preventing him from engaging in trasporting smuggled goods and that satisfaction can obviously be founded only on reasonably anticipated prognosis of future behaviour of the petitioners made on the basis of past incidents referred to in the grounds of detention. The manner in which the petitioner transported 181 packages of contraband ball bearings from Jamnagar to Delhi indicating deep rooted conspiracy would be sufficient to satisfy the detaining authority about the need to detain the petitioner. It is not possible to say that the incident referred to in the grounds of detention was such that it could not reasonably lead to the satisfaction which the detaining authority reached when it made detention order. In my view, passage of time between the date of incident and the date of making of the order of detention is result of full and detailed consideration of facts and circumstances of the case after thorough examination at various levels and, therefore, it cannot be said that the detention was in any way illegal when the detaining authority had fully and satisfactorily applied its mind to the question of detention order. The grounds of detention are neither stale nor illusory. There is real nexus between the grounds and the impugned order of detention. The detention order, therefore, in my opinion, is not liable to be quashed and set aside on the ground that there is delay in passing the order of detention.
24. It was next contended by the Learned Counsel for the petitioner that neither any crew member nor driver or owner of Mugani Transport has been detained and as the detenu is discriminated, the impugned order of detention deserves to be set aside. This ground of challenge is raised in para-4 (V) of the petition. In support of this plea, Learned Counsel for the petitioner has placed reliance on the decisions rendered in the cases of (i) Chaturbhai Becharbhai Patel v. State of Gujarat and Ors. 1979 Cri.LR (Guj.) 283: (1979 GLR 570) and (ii) Sidiq Haji Ismail v. State of Gujarat and Ors., [1989(1)] XXX (1) GLR 354.
25. Mr. B.B. Naik, learned Additional Standing Counsel for the Central Government and Mr. Y.F. Mehta, learned A.G.P. have pointed out that orders of detention are also issued against (i) Ali Raja, (ii) Adam Juma Chamadia, who has challenged the order of detention by filing Special Civil Application No. 3260 of 1995, (iii) Osman Ismail Shaikh, who has challenged the order of detention by way of filing Special Civil Application No. 3272 of 1995, (iv) Abdul Wahab Issa Ker, who has challenged the order of detention in Special Civil Application No. 3266 of 1995 and (v) Harishkumar of Delhi.
25A. In my opinion, the impugned order of detention is not liable to be voided on the ground of discrimination. In the case of Chaturbhai Becharbhai Patel (supra) the Court found that principal culprits were not detained for four months and only transporters were detained. Under the circumstances, the Court set aside the order of detention because purpose of detention could not have been achieved, as the principal culprits were not detained for a pretty long time. The case of Chaturbhai Becharbhai Patel (supra) was considered by the Division Bench in the case of Sidiq Haji Ismail (supra). The Division Bench has to state as under so far as ratio laid down in Chaturbhai Becharbhai Patel's is concerned:
The entire decision turns on the facts of the case. On facts, it was held that the satisfaction arrived at by the detaining authority, on the basis of the material placed before him was not genuine. If any observations in the aforesaid judgment are sought to be read as laying down a broad general proposition that whenever there is failure to detain a principal co-accused or an accomplice it always indicates that there is no genuine satisfaction for detaining other persons involved in the illegal and objectionable activities then in our considered opinion, such observations cannot be held to be good law.
The Court has further emphasised as under:
The decision with regard to other individual is not a relevant circumstance at all unless it is shown that on the same material the other person is let off and the power exercised in respect of person concerned is exercised with mala fide and/or in discriminatory manner.
25. In my view, the decisions cited at the bar are hardly of any assistance to the petitioner so far as point of discrimination is concerned. A bare look at the grounds of detention and more particularly para-10 of the grounds of detention, makes it abundantly clear that the detaining authority was satisfied that Abdul Wahab Issa Ker, Adam Juma Chamadia and the detenu played an important role and the important role played by the detenu was in despatching the smuggled ball bearings from Jamnagar to Delhi in one of his trucks for a consideration of Rs. 10,000/-. There is nothing on record of the case to indicate that the case of the detenu is same as that of the driver of Mugani Transport. The material on record does not indicate that contraband ball bearings, seized were to be transported from Salaya to Jamnagar by driver of Mugani Transport or owner of Mugani Transport; whereas the statement of Adam Juma Chamadia clearly indicates that if the ball bearings worth Rs. 57,92,038/- had not been seized, the same would have been transported through the petitioner from Jamnagar to Delhi. Under the circumstances, the case of the present petitioner cannot be compared with the case of driver of Mugani Transport, who transported goods from Salaya to Jamnagar. On the facts and in the circumstances of the case, I am of the view that no material is placed by the petitioner before the Court to substantiate the ground of discrimination as averred in para-4(V) of the petition. The order of detention, therefore, cannot be set aside on the ground that the petitioner is discriminated, as others are not detained.
26. It was next contended by the Learned Counsel for the petitioner that on the basis of solitary instance of transporting smuggled goods detention order could not have been passed, more particularly when it was not indicated that during the period between the date of incident and the date of passing of order, the detenu was involved in any objectionable activities and, therefore, the relief claimed in the petition should be granted. In my view this contention is devoid of merits. As emphasised by the Supreme Court in the case of Gora (supra) the prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in future. The manner in which the detenu agreed to transport contraband ball bearing from Jamnagar to Delhi after examining sample of ball bearings, the use of Code number etc. would indicate that the detenu had engaged himself in an organised manner in transporting smuggled goods. From the facts and circumstances of the case, it is apparent that the detenu and others had formed a syndicate and were engaged in an organised manner in smuggling activities which has several facets. The single act of transporting smuggled goods showed preparation and full knowledge on the part of the detenu indulging in act of prohibited nature. Therefore, it can provide valid ground for detention. The volume and magnitude of smuggling activity as unfolded in the grounds of detention and value of contraband goods seized indicates its propensity that it was well planned and premeditated and therefore, the order of detention can be passed. Under the circumstances, the submission that on the basis of solitary incident order of detention could not have been passed cannot be accepted.
27. Learned Counsel for the petitioner referred to para-13 of the grounds of detention and contended that satisfaction of the detaining authority, namely, that materials placed before the detaining authority indicated that the detenu had made arrangement for transporting the contraband goods under seizure from Dubai, is vitiated, as there is nothing to indicate that the detenu had made arrangement for transporting the contraband goods under seizure from Dubai and, therefore, the impugned order deserves to be set aside. In my view, this is wrong reading of grounds of detention. What is stated in the grounds of detention is that the detenu had made arrangement for transporting contraband goods which were seized on December 16, 1993 and December 17, 1993. The following statement in the grounds of detention "I am also satisfied from the material placed before me that you have made arrangement for transporting the contraband goods under seizure from Dubai" is made on the strength of statement of Adam Juma Chamadia, which indicates that if the contraband goods had not been seized, the same would have been transported from Jamnagar to Delhi through the petitioner. On consideration of the material, it cannot be said that ground No. 13 of the grounds indicates non-application of mind on the part of the detaining authority. The detaining authority has considered the entire material placed before it and all aspects relating to preventive detention. On the basis of the material placed before it, the detaining authority was satisfied that the detenu had made arrangement for transporting contraband goods which were seized. The order of detention, therefore, cannot be set aside on the ground that there is non-application of mind by the detaining authority when it proceeded to state that the detenu had made arrangement for transporting contraband goods under seizure from Dubai.
28. Lastly, Mr. J.B. Pardiwala, Learned Counsel for the petitioner submitted that the detenu was not supplied with correct translation, in as much as Gujarati version of the order indicates that the detenu was transporting (parivahan) smuggled goods and it does not indicate that the order of detention was passed with a view to preventing the detenu from engaging in transport of smuggled goods. The Learned Counsel, therefore, pleaded that the impugned order should be set aside. In support of this contention, Learned Counsel placed reliance on the decision rendered in the case of Rajkumar Bhanvarlal Jain v. Union of India and Others, Special Criminal Application No. 923 of 1986 decided on November 20, 1986 by Division Bench comprising D.C. Gheewala and J.P. Desai, JJ. In the said case, validity of the order of detention dated May 28, 1986 passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was examined by the Court. It was found that correct translation of the order of detention was not supplied to the detenu, who was conversant only with Hindi language. It was also found that a very important word, the connotation whereof constituted the import of the charge against the detenu, was not included in the translated version of the order of detention. Under the circumstances, the Court set aside the order of detention. In my view, the principle laid down in the decision which is relied on by the Learned Counsel for the petitioner would not be applicable to the facts of the present case. In the said decision itself it has been emphasised that mere non-mention of a particular word in the translation by itself would not vitiate the order of detention. The order of detention, which is translated in Gujarati is produced for perusal of the Court, which indicates that the order has been passed with a view to preventing the detenu from engaging in transport of smuggled goods. It cannot be said that incorrect translation of the order of detention is supplied to the detenu. The words are mentioned in the order of detention which is translated in Gujarati language. The Gujarati translation of order of detention clearly indicates that the order of detention is passed with a view to preventing the detenu from engaging himself in transport of smuggled goods. It is not possible to come to the conclusion that very important word, the connotation whereof constitutes the import of the charge against the detenu is not included in the translated version of the order of detention. On the facts and in the circumstances of the case, it cannot be said that correct translation of the order of detention was not supplied to the detenu so as to warrant interference of the Court in the present petition.
29. Except the contentions which have been dealt with hereinabove, no other submission was advanced by the Learned Counsel for the petitioner in support of the petition. As I do not find substance in any of the contentions raised by the Learned Counsel for the petitioner, the petition is liable to be dismissed.
30. For the foregoing reasons, the petition fails and is dismissed. Rule is discharged with no order as to costs.