Karnataka High Court
Mr. T. Mukesh S/O B. Thyagarajan, Sri ... vs Government Of Karnataka By Secretary ... on 22 June, 2006
Equivalent citations: 2006CRILJ3741, 2006 CRI. L. J. 3741, 2006 (5) AIR KANT HCR 13, (2006) 4 RECCRIR 499, (2007) 1 EFR 292, (2007) 3 KANT LJ 442, (2006) 2 RENCR 435
Bench: R. Gururajan, Jawad Rahim
ORDER
1. All these petitioners are before this Court seeking for a writ in the nature of habeas corpus or any other appropriate declaring that the detention of Sri Bheemappa Thyagarajan, Mr. Venkoba Rao, Sri G. Raghu Gowda, Sri Anothony Dominik, by order dtd 28-1-2006 is illegal and void ab-initio.
2. Detention order dtd 28-1-2006 waa issued by Sri Sudhakar Rao, Principal Secretary to Government, Home Department, who was specially empowered under Section 3(1) of the COFEPOSA Act detaining the aforementioned detenues with a view to preventing them from acting in any manner prejudicial to the conservation of foreign exchange and with a view to preventing them from smuggling goods. The detenues were taken in detention. On 30-6-2006 a notification dtd 28-1-2006 was issued to the detenues containing the grounds of detention along with the order of detention. List of documents and copies thereof were also served. Aggrieved by the said order, petitioners are before this Court.
2. Notice was issued and respondents have entered appearance. Statement of objections is filed by the State. State would say that on the basis of subjective satisfaction, the detaining authority has passed the order of detention with a view to prevent the detenues from acting in any manner prejudicial to the conservation of foreign exchange and smuggling of goods. The detenues were caught while they were smuggling foreign currency out of India. Foreign currency is the one which requires preservation from loss, which means conservation. The word 'augment' connotes to increase or intensify as in size or degree of effect. While one preserves, other intensifies and therefore the object of the conservation and preservation is the same despite the fact that the two expressions are not exactly the same. They justify their action by saying that the detention was necessitated in terms of the Act for conserving foreign exchange. They deny the writ averments made in the case on hand.
2. Heard the learned Counsel for the parties.
3. Sri Kiran S. Javali, learned Counsel would take us through the proceedings to contend that annexure-A suffers from legal errors. He would say that the principal secretary has to satisfy with regard to the necessity of detention in terms of the Section 3 of the Act. He would specifically say that all the detenues are detained on the ground of conservation of foreign exchange and with a view to preventing them from smuggling of goods. He would also refer to us the grounds of detention in support of his submission.
4. Learned State Public Prosecutor would say that the authority was convinced in terms of the grounds of detention that the detenues were involved in smuggling of foreign currency out of India in contravention of the various statutes in as much as they carried foreign and Indian currency in excess of the prescribed limit; that they did not obtain the foreign currency from the authorised dealer/money exchanger, apart from carrying the foreign currency in contravention of the statutes; that there were also underlying reasons for smuggling foreign currency to under value the goods to evade customs duty. Learned Counsel invites our attention to para 16 of the grounds of detention to say that it was in those circumstances, the authority considered it necessary to detain the detenues under Section 3(1) of the COFEPOSA Act with a view to prevent them from indulging further in the smuggling of goods.
5. In reply learned Counsel for the petitioners would say that detenues have been detained on the ground of detention and material facts if read as a whole would show that the facts of the case would show that the circumstances can at the most be termed as 'augmenting' and that therefore the authority is wrong in detaining them on the ground of prejudicial to the conservation of foreign exchange. Per contra, learned State Public Prosecutor would argue that value of foreign exchange suffers on account of smuggling activities of the detenues and that therefore to conserve foreign exchange, the authorities have chosen to invoke the power under Section 3 of the Act.
6. After hearing the learned Counsel, we have carefully perused the material on record.
7. Annexure-A is an order issued by the Principal Secretary, Home department, Government of Karnataka. Before us power under Section 3 of the COFEPOSA Act is conceded. What is argued before us is that the order is passed with a view to prevent the detenues from acting in any manner prejudicial to the conservation of foreign exchange and with a view to preventing them from smuggling goods. Learned Counsel for the petitioners says that augmentation is different from conservation in terms of Section 3 of the Act. We have seen the grounds of detention and from the grounds it is seen that the detenues had in their possession foreign exchange of different denominations. Baggages were checked by the Customs Department in addition to the search of the residential premises of the unauthorised dealer. It is further stated that the detenues had possession of foreign exchange with was neither endorsed in the passport nor declared the same to the Customs and that they had no legitimate documents such acts amount to smuggling. We further see in para 13 of the grounds of detention, the conclusion arrived at by the detaining authority wherein it is stated that the detenues carried foreign exchange and Indian currency in excess of the prescribed limit and he did not obtain the the foreign currency from the authorised dealer/money exchanger. In the subsequent para, the detention authority holds that the detenues were involved in smuggling of foreign currency with an intention to evade customs duty. It was further held that the detention was necessary to prevent the detenues from indulging further in smuggling.
8. From the facts as narrated above what is clear to us is that at the most the acts of the detenues would border 'augmentation' but it cannot be termed as 'conservation' as held by the detaining authority. 'Augmentation' and 'conservation' stand on totally different footing. In fact this particular question has been considered by the Bombay High Court in Criminal Writ Petition No. 73/1990. The Bombay High Court in the said order has ruled that the original order of detention recites that it is passed with a view to preventing the detenues from acting in any manner prejudicial to augmentation of foreign exchange. The Bombay High Court has further noticed that the expression weakening is not a correct translation of the expression augmentation. The expression conservation and augmentation are different and distinct. By conservation what is connoted is that the level of foreign exchange should be retained and by expression augmentation what is connoted is that the available exchange should increase. The expression weakening is more related to the expression conservation and has nothing to do with the expression augmentation. The present case is a converse case. We are in agreement with the view expressed by the Bombay High court. The said judgment supports the petitioners. In our view the detention at the most, in the given circumstances, may amount to augmentation but not certainly pejudicial to the interest of conservation of foreign exchange in terms of the material facts and the material documents.
10. The State Government has chosen to rely on the judgment of the Calcutta High Court reported in 1975 Crl.L.J 1790 in support of his submission. We have carefully gone through the said judgment. The facts of that case would show that the State of West Bengal passed an order under Section 3 of the Act with a view to prevent the detenues from acting prejudicial to the augmentation of foreign exchange. It is further seen that in the said case there were two orders and the first order was withdrawn and the second order dealt with conservation and augmentation. Noticing these facts, the court ruled that the set of facts present in that case would make the order valid. In para 25, the court noticed that if on the basis of facts set out in the grounds an order of detention could be made on the ground of augmentation of foreign exchange, the mere fact that augmentation and conservation are exclusive of each other, would not make this order of detention bad. The court further ruled that at the most, on that ground the previous order could have been challenged; that we are not holding that the earlier order was bad or that on the same set of facts no order could be passed on the ground of augmentation and conservation or augmentation and conservation both. The said judgment is not available to the State in the light of distinguishing facts available in the reported case. Even otherwise, that was a case in which an order was passed on the ground of augmentation and conservation. Where as the present case is only of "conservation". We have already ruled that the facts at the most may amount to augmentation. In these circumstances, the said judgment would not be of any assistance to the State.
11. There is one more reason as to why the impugned order is to be set aside by us in these petitions. In fact in para 15 of the grounds of detention, the detaining authority has observed that the detention is to prevent the detenues from indulging further in smuggling of goods, whereas the detention order is for preventing the detenues from acting in any manner prejudicial to the interest of foreign exchange and with a view to prevent them from smuggling goods. This reflects non-application of mind.
12. Sri Kiran S. Javali, learned Counsel argues that the detention may not be necessary in the light of seizure of passport of the detenues in terms of annexure-C in these petitions. To our specific query, learned State Public Prosecutor, would say that the passport is still with the Government and the same has been retained for the purpose of verification and it will be returned to the detenues after verification. The same is reiterated in the affidavit. The Supreme Court has chosen to consider the retention of passport by the authorities in para 15 of its judment reported in 2002 SCC (Cri) 1627. It reads as under;
15. In other words according to the detaining authority the prime mover for the smuggling activity was the proprietor of M/S B.D. Denim. The appellant at the worst was a pawn in the hands of another. The likelihood of the appellant indulging in smuggling activities by the appellant was in any case effectively foreclosed by the retention of his passport by the Customs Department. The detaining authority noticed that the appellant's passport was with the Customs Department and yet he said "but you are likely to travel clandestinely for the purpose of smuggling". Now one of the instances of smuggling by the appellant as stated in the impugned detention order describe the appellant as having travelled without a passport for the purpose of smuggling. The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the detaining authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues raised by the Appellant.
13. In the light of the judgment of the Supreme Court and in the light of retention of passport, further detention may not be necessary as on today. This additional factor also compels us to accept these petitions.
14. Before concluding, we deem it proper to observe that the laudable object of the COFEPOSA Act sometimes gets diluted or derailed in the light of non-application of mind by the detention authorities. We do hope that the authorities would take much more care and caution while passing orders under Section 3 so that the object of the Act is achieved.
15. In the result, these petitions are accepted. Annexure-A is set aside in each of the cases. This order is not to be understood as any expression on the merits of the matter with regard to any violation of any Act by the detenues and such violations are to be dealt with in accordance with law despite this order. This order is not to come in the way of the authorities passing a fresh order in accordance with law and if so advised in the given circumstances. No costs.