1989 (9) TMI 131 - HC - Customs

Words and Phrases - Smuggling activities and sumggling - Detention - Prosecution - Adjudication - Evidence

Summary

Issues Involved:
1. Legality of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Whether the seizure of the petitioner's passport by customs authorities negates the necessity of the detention order.
3. Sufficiency and propriety of the grounds of detention.
4. Validity of the detention order based on a single incident of smuggling.
5. Whether the counter affidavit can supplement the grounds of detention.

Issue-Wise Detailed Analysis:

1. Legality of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974:
The petitioner challenged the detention order dated 4th November 1988, issued by the Administrator of Union Territory of Delhi, under Section 3(1) of the Act, seeking a writ of habeas corpus to quash the order and direct his release. The court examined whether the detention was justified under the Act, considering the facts and circumstances of the case.

2. Whether the seizure of the petitioner's passport by customs authorities negates the necessity of the detention order:
The petitioner argued that since his passport had been seized by customs authorities, he was effectively prevented from smuggling gold into India, rendering the detention order unnecessary. The court referred to the Full Bench judgment in Mohd. Saleem v. Union of India, which held that if a person is effectively prevented from leaving the country due to the seizure of his passport, the detention order cannot be sustained unless there are grounds indicating the person could still engage in smuggling activities.

3. Sufficiency and propriety of the grounds of detention:
The respondent contended that the detention was not merely for preventing smuggling but also for preventing smuggling activities, which include transportation, keeping, and concealing smuggled goods. The court noted that the grounds of detention must clearly state the reasons for the detention to enable the detenu to make an effective representation. The court found that the grounds of detention did not disclose any material indicating the petitioner was likely to engage in smuggling activities other than the single incident of smuggling gold.

4. Validity of the detention order based on a single incident of smuggling:
The petitioner's counsel argued that the detention order was based on a solitary incident of smuggling, and there was no material to suggest the petitioner was likely to smuggle gold in the future. The court referred to the case of Suwa Ram through Raghu Ram v. Union of India, where it was held that a detention order based on an isolated act of smuggling, without any indication of future smuggling activities, is not justified. The court found that the petitioner had clearly stated this was his first trip abroad and he had no intention of repeating the act, which was corroborated by the seizure of his passport.

5. Whether the counter affidavit can supplement the grounds of detention:
The respondent argued that the counter affidavit filed on behalf of the detaining authority indicated the possibility of the petitioner obtaining a fictitious passport and engaging in smuggling activities. The court held that the counter affidavit could not supplement the grounds of detention with new material not disclosed in the original grounds. The court emphasized that the grounds of detention must contain all relevant material considered by the detaining authority to enable the detenu to make an effective representation.

Conclusion:
The court concluded that the detention order dated 4th November 1988 was not sustainable. The court found that the petitioner was effectively prevented from leaving India due to the seizure of his passport and the strict conditions of bail. The grounds of detention did not disclose any material indicating the petitioner was likely to engage in future smuggling activities. The court held that the detention order was based on non-existent material and was liable to be quashed. The writ petition was allowed, and the petitioner was ordered to be released forthwith if not required to be detained in any other case or proceedings.

Order:
The detention order dated 4th November 1988 is quashed. The petitioner is to be set at liberty forthwith if not required to be detained in any other case or proceedings. No order as to costs.