1978 (11) TMI 153 - SC - FEMA

Smuggling of Cargo of contraband goods - detention orders - Held that - It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind. It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked. W.P.dismissed.

Summary

Issues Involved:

1. Violation of constitutional rights under Article 22(5).
2. Non-application of mind in the detention order.
3. Procedural compliance with preventive detention laws.

Issue-wise Detailed Analysis:

1. Violation of Constitutional Rights under Article 22(5)

The appellant argued that his detention violated the constitutional right guaranteed under Article 22(5) of the Constitution because the Government withheld consideration of his representations until after the hearing before the Advisory Board. The Court acknowledged the principle that the Government must consider representations independently and expeditiously, as established in Abdul Karim v. State of West Bengal and Pankaj Kumar Chakrabarty v. State of West Bengal. The Court emphasized that the dual obligation of the Government to consider the representation and to refer the case to the Advisory Board are distinct and must be independently fulfilled. However, in this case, the Court found no violation of Article 22(5). The Government had forwarded the appellant's representations along with its comments to the Advisory Board before the hearing, indicating that it had already formed an opinion independently. The Court concluded that the Government's decision was not influenced by the Advisory Board's opinion, thus complying with the constitutional mandate.

2. Non-application of Mind in the Detention Order

The appellant contended that the detention order was invalid due to non-application of mind, arguing that he was an abettor, not an actual smuggler, and thus should have been detained under a different clause. The Court examined Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which distinguishes between smuggling and abetting smuggling. The Court noted that the term "smuggling" under the Act is broad enough to include abettors. The Court found substantial evidence that the appellant was directly involved in smuggling activities, including organizing and facilitating the smuggling of contraband goods. The Court concluded that the appellant's activities fell under both clauses (i) and (ii) of Section 3(1), and there was due application of mind by the detaining authority.

3. Procedural Compliance with Preventive Detention Laws

The Court reiterated the importance of procedural safeguards in preventive detention cases, emphasizing that the Government must scrupulously observe all legal safeguards to prevent arbitrary detention. The Court cited several precedents, including Khudiram Das v. The State of West Bengal, to underline that the constitutional safeguards under Article 22(5) must be read into the provisions of the preventive detention laws. In this case, the Court found that the Government had complied with all procedural requirements, including timely communication of the grounds of detention and consideration of the appellant's representations. The Court dismissed the argument that the procedural safeguards were not applicable under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, affirming that the Constitution's protections are all-encompassing.

Conclusion:

The Supreme Court dismissed both the appeal and the writ petition, finding no violation of constitutional rights or procedural lapses in the detention order. The Court affirmed that the appellant's detention was justified under both clauses (i) and (ii) of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and there was due application of mind by the detaining authority. The judgment underscores the necessity of adhering to constitutional safeguards in preventive detention cases to prevent arbitrary deprivation of personal liberty.