Karnataka High Court
Smt Bidisha Goin vs Government Of Karnataka on 10 September, 2013
Bench: N.K.Patil, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
R
DATED THIS THE 10TH DAY OF SEPTEMBER, 2013,
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
WRIT PETITION (HC) No. 46 OF 2013
Between:
Smt. Bidisha Goin,
W/o. Pandian Muruganathan,
Aged 33 years,
No.19/23, Nanjammal Street,
K K Pudur, Saibaba Colony,
Coimbatore-641 038.
... Petitioner
(By Shri. Kiran.S.Javali,
for Shri. Chandrashekara.K, Advocate)
And:
1. Government of Karnataka,
By Principal Secretary,
Home Department,
Vidhana Soudha,
Bangalore-1.
2. Principal Secretary to Government of
Karnataka, Home Department,
Vidhana Soudha,
Bangalore-1.
By Shri. K.M.Shivakumar.
2
3. Senior Superintendent,
Central Prison,
Bangalore.
. .. Respondents
(By Shri. Keshava Reddy.M, AGA)
*********
This Writ Petition (HC) is filed under Article 226 of the
Constitution of India, praying to declare the detention of
Shri. Pandian Muruganathan @ Shiva Pandian, S/o.
Muruganathan by order HD 12 SCF 2010 dated 16/09/2010
vide Annexure-A as illegal and void abinitio.
This Writ Petition (HC) coming on for Orders, this day,
N.K.Patil J., made the following:
O R D E R
Petitioner, questioning the legality and validity of the order impugned dated 16th September 2010 bearing No.HD 12 SCF 2010, passed by the second respondent - Principal Secretary to Government, Home Department, vide Annexures A, has presented this writ petition.
2. It is the case of the petitioner that she is wife of the detenue Shri.Pandian Muruganathan @ Shiva Pandian, S/o. Muruganathan and she is interested in his life, welfare and personal liberty. The second respondent herein in exercise of power under Section 3 3(1) of the COFEPOSA Act has passed an order of detention on being satisfied with a view to prevent Sri. Pandian Muruganathan @ Shiva Pandian from acting in any manner from smuggling of Muraite of Potash (MOP) and also irregular availment of drawback. In pursuance of the said order, the detenue has been detained in Central Prison, Bangalore, under Section 3(1)(i)of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act' for brevity), which is at Annexure-A. The said order has been served on the detenue. On 16th September 2010, a communication/order of detention at Annexure-A was issued by the second respondent along with the grounds of detention dated 16.09.2010 vide Annexure-B. Along with the same, detenue was also served with the list of documents and copies of documents referred to in the said list vide Annexure-C. On the basis of the said 4 documents, second respondent issued the order of detention vide Annexure-A.
3. The petitioner being aggrieved by the said order of detention has filed the present petition praying to issue a writ in the nature of habeas corpus or any other appropriate writ, order or direction declaring the detention of Shri.Pandian Muruganathan @ Shiva Pandian, S/o. Muruganathan, by order HD-2-SCF-2010 dated 16.09.2010 at Annexure-A as illegal and void abinitio and order to release the detenue.
4. Sri. Kiran S. Javali, learned counsel appearing for the petitioner at the out set contended, the order of detention passed by the second respondent vide Annexure-A is manifestly erroneous, illegal and reflects non-application of mind on the part of the second respondent and therefore, the order of detention is illegal.
He further contended, the order of detention reveals that the second respondent has derived 5 subjective satisfaction to pass the order of detention on the basis of the activities which is formed the basis for issuance of detention order by invoking both 'COFE' and 'POSA', portion of "COFEPOSA' Act. The satisfaction recorded in the grounds of detention reveals that the second respondent has derived satisfaction in order to prevent her from irregular availment of draw back and smuggling of Muraite of Potash (MOP). Therefore, the conclusion recorded in the order of detention and grounds of detention being at variance and in view of improper communication of the order of detention and grounds of detention, the same is violative of both the facets of Article 22(5) of the Constitution of India and therefore, the detention order is illegal and cannot be sustained.
He also contended, the order of detention is vitiated for the reason that the extent of satisfaction recorded along with 34 documents relied upon reveals that the Detaining Authority has recorded the 6 satisfaction without any basis. Further, as the satisfaction recorded in Para-11 of the grounds of the detention is also not supported by any material, the order of detention stands vitiated for non-furnishing of the documents relied upon for passing the order of detention.
It is the further case of the petitioner, the order of detention is also vitiated inasmuch as, it indicates that the Detaining Authority has derived satisfaction in order to prevent the detenue from irregular availment of draw back, which is not a ground set out in Section 3(1)(i) to
(v) of the COFEPOSA Act. Consequently, the order of detention dehorse the provisions of the COFEPOSA Act is vitiated and therefore, it requires to be set aside.
He further submitted, the impugned order passed by the second respondent is without application of mind and by following due procedure contemplated under relevant provisions of the COFEPOSA Act. 7 Therefore, the impugned order at Annexure-A cannot be sustained and is liable to be set aside.
In support of his submission he relied upon the order passed by the Co-ordinate Bench of this Court dated 11th February, 2010, in W.P.(HC) No.134/2009 in the case of Manuwar Hussain Vs. Government of Karnataka and Others'. Relying upon paras 14 and 15 of the said order he contended that non-understanding of the provisions of Section 3(1) or quoting wrong words leading to wrong meaning by the Detaining Authority would only indicate non-application of mind while passing the detention order and when an order of detention concerning the liberty of a person is made, there has to be strict compliance of the procedure with proper application of mind to arrive at just and proper conclusion by the Detaining Authority and several stages have been created in order to afford an opportunity to make representations to different authorities including the authority which passes 8 detention order. Therefore, the impugned order does not stand test as indicated and has resulted in miscarriage of justice inasmuch as, the empowered Officer who has passed the order has used wrong words than the one prescribed under the relevant provisions of the COFEPOSA Act. Further he also relied upon the judgment of the Apex Court in the case of Mangalbhai Motiram Patel Vs. State of Maharashtra and Others (AIR 1981 SUPREME COURT 510) and submitted that ratio of law laid down in the said judgment is squarely applicable to the facts and circumstances of the present case. Insofar as the decisions relied upon by the learned Additional Government Advocate appearing for the respondents, he submitted that the ratio of law laid down in the said judgments are not applicable to the present case on facts and the same have no bearing on the facts and circumstances of the present case.
5. As against this, learned Additional Government Advocate appearing for respondents, inter alia 9 contended and substantiated the order impugned passed by the second respondent stating that the same is passed strictly in consonance with the relevant provisions of the COFEPOSA Act. In order to substantiate the said submission, he vehemently submitted that mere non mentioning of the relevant provision cannot take away the order that is passed by the Detaining Authority after following due procedure and strictly in accordance with the COFEPOSA Act. Further, he submitted that, from Grounds 20 to 24, the detenu is made known that he has a right to make any representation against the detention order to the Detaining Authority, the Government of Karnataka, the Central Government and the COFEPOSA Advisory Board. In fact the representation submitted by the detenu has been considered and the impugned order is passed having regard to the involvement of the detenu in smuggling activities and the gravity and seriousness of the offence. Further, he submitted that the reasons 10 for detention of the detenu under the impugned detention order was with respect to the issue of irregular availment of drawback under the provisions of COFEPOSA Act and that the voluntary statement of the detenu dated 13th April 2010 and 14th April 2010 are self-explanatory and confessing irregular availment of drawback by the detenu in the name of different companies to the tune of Rs.5.15 crores have been properly considered by the Detaining Authority before passing the impugned order of detention and therefore, the contentions raised by the petitioners in this regard are far from truth and the writ petition filed by petitioner is liable to be dismissed.
6. To substantiate the said stand, he relied upon the judgment of the Hon'ble Apex Court reported in (1981) 2 Supreme Court Cases 24, in the case of State of Gujarat Vs. Chamanlal Manjibhai Soni, wherein, it is held, "where each activity of the detenu is a separate ground by itself, then the order of detention 11 will not be vitiated merely because one of the grounds of detention is vague or irrelevant". He submitted that the object and scope of the Act should be taken into consideration and if Section 5-A of the COFEPOSA Act is applied, then the Detaining Authority is justified in passing the order impugned on two grounds, one, involvement in smuggling and two, conservation of foreign exchange.
Further, he relied upon another judgment of the Hon'ble Apex Court reported in AIR 1966 Supreme Court 740 in the case of Ram Manohar Lohia Vs. State of Bihar and another and drew our attention to paragraphs 10, 11 and 13 and particularly headnote (f) and submitted that an error in not mentioning the relevant provision cannot render the detention order illegal or invalid when the same is passed after following due procedure envisaged under the COFEPOSA Act and strictly in accordance with law. Therefore, having regard to the gravity of the offence committed and the 12 magnitude of conservation of foreign exchange by the detenu, the order passed by the Detaining Authority is justified and interference in the same is uncalled for.
7. On careful consideration of the submission of the learned counsel appearing for the respective parties and on perusal of the impugned order of detention dated 16.09.2010 passed by the second respondent vide Annexure-A and the grounds of detention dated 16.9.2010 vide Annexure-B, it is manifest on the face of it that the second respondent has committed a grave error in proceeding to pass the order of detention without following the due procedure under relevant provisions of COFEPOSA Act. After scrupulous and critical evaluation of the entire material available on file, including the grounds of detention at Annexure B and the grounds urged in the writ petition, it emerges that the second respondent has specifically referred in the Grounds of Detention at Annexure B, internal page 7 that, the detenu has consciously and 13 malafidely indulged in irregular availment of drawback from the Government and also indulged in attempted smuggling/illegal export of huge quantity of fertilizer (Muriate of Potash) out of India by way of concealing Muriate of Potash and mis-declaring the export cargo as Feldspar and this act of his could be made from the records, test reports, his statement and the statement of Shri. Yaseer Ahmed. Further, at internal page 9 of the grounds of detention, it is specifically mentioned that, in view of the preceding paras, the second respondent is satisfied that the detenu has engaged himself in the aforesaid prejudicial activities and the said authority is satisfied that the detenu has high propensity and potentiality to continue to engage in such activities in future also. He, therefore, arrives at the conclusion that there is a necessity to detain the detenu under the COFEPOSA Act, 1974 in order to prevent the detenu from irregular availment of drawback and smuggling of Muriate of Potash (MoP) using the modus operandi as 14 described in the grounds of detention or by using any other modus operandi in future. But, the same is not reflected in the order of detention, wherein, it is only stating that the second respondent is satisfied that, "with a view to preventing the detenu from acting in any manner from smuggling of Muriate of Potash (MoP) and also irregular availment of draw back". The relevant provision is not specifically mentioned. Thereafter in para 2, it is stated that the detenue is detained and kept in custody in Central Prison in exercise of powers conferred under Section 3 (1)(i) which contemplates only smuggling and not conservation of foreign exchange. The order of detention does not reflect the exact grounds of detention and under Section 3(1)(i) of COFEPOSA Act, the Detaining Authority can detain the detenu only for smuggling activities and not for irregular availment of drawback. But, it is explicitly stated in first paragraph of the order of detention that the said order is passed in order to prevent the detenu from 15 "smuggling of Muriate of Potash (MoP) and also irregular availment of drawback". This lacuna shows that there is no proper application of mind by the Detaining Authority while passing the impugned order of detention. The order of detention is cryptic in nature and cannot be sustained under any circumstances and is liable to be set aside at the threshold on the ground of non application of mind and for not following due procedure prescribed under the COFEPOSA Act.
8. As rightly pointed out and relied upon by the learned counsel appearing for petitioner, the order passed by the co-ordination bench of this Court dated 11th February 2010, in W.P.(HC) No.134/2009 filed by Sri. Munuwar Hussain Vs. Government of Karnataka and others clinches the very issue inasmuch as the Division Bench, after following the well settled law laid down by the Hon'ble Apex Court and this Court in catena of decisions coupled with the 16 relevant provisions of the COFEPOSA Act, has observed in paragraphs 14 and 15 as follows:
"14. Section 3(1) has two parts, first part refers to conservation of augmentation of foreign exchange and the second one is prevention of smuggling. The words used in the order of detention would indicate the first portion of the Section with regard to conservation of foreign exchange was applied to the second portion of the Section referred to. In other words, the Detaining Authority did not even understand that Section 3(1) contemplates prevention of two acts, one pertains to an act which is prejudicial to the conservation and augmentation of foreign exchange and the second one was to prevent a person from smuggling, etc. In the present case, the petitioner's case was that this detenu was found smuggling Indian currency. Therefore, it has to be an order of detention preventing him from smuggling Indian currency and it cannot be an order preventing him from acting in any manner from smuggling of 17 Indian currency. Therefore, non-
understanding of the provisions of Section 3(1) or quoting wrong words leading to wrong meaning by the Detaining Authority would only indicate non-application of mind while passing the detention order. Under these circumstances, in the present case, the order of detention gets vitiated.
15. Then coming to the procedural aspect, having regard to the seriousness of the crime alleged, the very liberty of the detenu will be at stake when once an order of detention is made. Therefore, when order of detention concerning the liberty of a person is made, there has to be strict compliance of the procedure with proper application of mind to arrive at just and proper conclusion by the Detaining Authority. Several stages are created in order to give opportunity to the detenu to make representation to different authorities including the authority which passes detention order. Therefore, having regard to the fact that the detenu has a right to give representation to the State Government, 18 Central Government, Detaining Authority, appropriate Government, Advisory Board, it would only mean that each one has to act independently of the other and the appropriate Government has to consider the representation independently prior to the opinion of the Advisory Board and also subsequent to the opinion of the Advisory Board in the light of the opinion of the Advisory Board. All these precautions are indicated having regard to the fact that the liberty of a person is at stakes. Therefore, the procedure has to be complied strictly and any laches or mechanical way of dealing with the procedure or consideration of representation by the Detaining Authority would result in making the order of detention vitiated." (emphasis supplied) Thus it is clear from the above that, Section 3 (1) contemplates prevention of two acts, one pertains to an act which is prejudicial to the conservation and augmentation of foreign exchange and the second one to prevent a person from smuggling, etc. In the instant 19 case, the detenu is detained for two reasons, viz. 1) with a view to prevent him from acting in any manner from smuggling of Muriate of Potash (MoP) and 2) for irregular availment of draw back. But, the impugned order of detention is passed by the Detaining Authority by invoking the powers conferred under Section 3(1)(i) of COFEPOSA Act, which contemplates only preventing the detenu from smuggling goods. The said authority has not mentioned the relevant provision for irregular availment of draw back. This is a serious lapse on the part of the Detaining Authority and it is an error apparent on the face of the same. The Law contemplates, before passing the order the Authority has to take not only the proper precaution as contemplated, but ample opportunity should be afforded to give representation to protect his personal liberty.
Therefore, when an order of detention is passed in contravention of any of the procedure prescribed or relevant provisions of COFEPOSA Act, such orders 20 cannot be sustained and are liable to be set aside.
Hence, we fully concur with the view taken by the co-
ordination bench of this Court, in the order cited above.
Further, it is relevant to note here itself that, following the aforesaid decision of the Division Bench, another co-
ordinate bench of this Court has taken a similar view in Writ Petition (HC) No.121/2011 disposed of on 8th September 2011.
9. In the instant case, the order of detention passed by second respondent vide Annexure A dated 16th September 2010 is two-fold. One, for preventing the detenu from acting in any manner from smuggling of Muriate of Potash (MoP); two, for irregular availment of drawback. But, the Detaining Authority has passed the impugned order of detention, exercising the powers conferred under Section 3(1)(i) of the COFEPOSA Act, which is only for preventing the detenue from smuggling of goods. It does not reflect the provision for preventing the detenue from irregular availment of draw back. 21 Therefore, it proves beyond all reasonable doubts that there is no proper application of mind by the second respondent while passing the impugned order of detention at Annexure, A and the same is contrary to the Grounds of detention at Annexure B. Therefore, we are of the firm view, at any stretch of imagination, the impugned order of detention cannot be sustained in view of non application of mind, for not following the procedure envisaged under relevant provisions of the COFEPOSA Act and for violation of Article 22(5) of the Constitution of India. Therefore, it is liable to be set aside at the threshold.
10. Regarding the citations relied upon by the learned Additional Government Advocate, there is no dispute or quarrel regarding the ratio of law laid down in the said citations, but the facts and circumstances of the said decisions have no bearing on the issue involved in the instant case and hence, the same cannot be made applicable to the facts and circumstances of the case. 22 Therefore, the said decisions are of no assistance to him in the present writ petition.
11. Having regard to the factual and legal aspects of the matter, the writ petition filed by petitioner is allowed.
Impugned Order dated 16th September 2010, bearing No.HD 12 SCF 2010 passed by the Principal Secretary to Government, Home Department, vide Annexure A is hereby set aside;
The detenu is ordered to be set at liberty forthwith, if not required in any other case.
Registry is directed to communicate the operative portion of the order to third respondent, for compliance, immediately.
SD/-
JUDGE SD/-
JUDGE BMV*