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TMI Blog2015 (7) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare of the Nation. On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the state security. After all, the essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State. The detaining Authority must apply its mind properly before passing order of detention. The Authority is obliged while passing order of detention and taking away liberty of the citizen of this country to exercise due care and caution and ensure that the person detained is so detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the subjective satisfaction and as recorded clearly spells out the distinction in law, then, we are in agreement with Mr.Yagnik that one word or sentence from the detention order cannot be picked up and read in isolation or torn out of context. The subjective satisfaction is based on the detaining authority's opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future. - detenu's rights guaranteed by Article 22 of the Constitution of India are in no way infringed nor is the mandate of the said Article in any way violated. There is ample opportunity given to him and to make an effective and meaningful representation. Even on that count, we do not find that the detention order suffers from any legal infirmity. - decided against the appellant. - Criminal Writ Petition No. 2076 of 2015 - - - Dated:- 3-7-2015 - S. C. Dharmadhikari And G. S. Kulkarni,JJ. For the Appellant : Mr Sanjay Agarwal i/b. M/s Prompt Legal For the Respondent : Mr Jayesh P Yagnik, APP JUDGMENT (Per S. C. Dharmadhikari, J.) 1. The order of detention dated 16.4.2015 issued by the second respondent to this Writ Petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on several grounds. Mr.S.Agarwal, learned Counsel appearing on behalf of the petitioner contended before us that the impugned detention order is vitiated in law. The precise submission of the learned Counsel is that the detention order refers to the detenu entering the terminal of Mumbai International Airport. He checked in at the counter and while his baggage was being checked, he was intercepted. This was not a case where the detenue had in any manner attempted to enter the portion of International Airport from where he could depart or board the flight. On his entry and at checking in point itself he was intercepted. The petitioner sought several documents and it is common ground that an adjudication order under the relevant statute was passed and that was challenged in an appeal. This is a solitary instance alleged, based on which the detaining authority has recorded his subjective satisfaction. However, the bond and which was executed and to which our attention has been invited incorporating the condition of the detenu not being able to leave India without prior permission of the competent Officer or the Competent Court, takes care of the apprehension and particularly within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: (I) Jagannath Misra Vs. State of Orissa, (AIR 1966 SC 1140); (II) Ekta Satish Choudhary Vs. State of Maharashtra Ors., (Judgment dated 17.1.2005 in Writ Petition No.2518 of 2014) (III) State of Bombay Vs. Atmaram Shridhar Vidya, (AIR 1951 SC 157); (IV) Bhawarlal Ganeshmalji Vs. State of Tamil Nadu Anr., ((1979)1 SCC 465); (V) Nafisa Sayed Ali Vs. State of Maharashtra Ors., (2013(4) Bom.C.R.(Cri) 284); (VI) Prithvi Sovern Kuntal Vs. State of Maharashtra Ors., (2002 (Supp.1) Bom.C.R.(Cri.) 692); (VII) Vijay Kumar Dharna alias Koka Vs. Union of India Ors. ((1990) 1 SCC 606); (VIII) Mahrunissa Vs. State of Maharashtra, ((1981)2 SCC 709); (IX) Mohinder Singh Gill Vs. Chief Election Commissioner, ((1978)1 SCC 405). 9. On the other hand Mr.Yagnik, learned Additional Public Prosecutor appearing on behalf of the State and the detaining Authority supported the impugned order. He submits that there is no substance in the grounds of challenge inasmuch as the detention order and the grounds have to be read as a whole. Such reading would reveal that the subjective satisfaction is based on the gravity of the offence and the well organized manner in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar band as check-in-baggage and another black coloured carry bag of Ballantine brand. When asked whether any foreign currency was being carried, the detenu replied in the negative. The Authorities not being satisfied with his reply, examined his baggage, a personal search was carried out. Two independent panchas were called to witness the proceedings and thereafter, the bags were examined. The foreign currency was found and it is equivalent to Indian ₹ 38,10,565/-. The foreign currency was seized under the panchanama and the detenu's statement under Section 108 of the Customs Act,1962 was recorded. The detenu admitted of being booked in similar cases of foreign currency smuggling during the years 2007 and 2009. Thereafter, a reference is made to the admissions in the statement and the Authority in paragraph 6 holds that the detenu attempted to smuggle the foreign currency not constituting bonafide baggage out of India in a clandestine manner. The detenu admitted carriage, possession, knowledge, recovery of the foreign currency. That is how the arrest effected is referred and, thereafter, the detenu being released on bail on furnishing personal and surety bond of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal, the Hon'ble Supreme Court traced the entire history of the legislation and object and purpose sought to be achieved by enacting it. This is what the Hon'ble Supreme Court held: 47. The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freedom and is not seen as compatible with rule of law, yet the framers of the Constitution placed the same in Part III of the Constitution. While giving to an individual the most valuable right - personal liberty - and also providing for its safeguard, the Constitution has perceived preventive detention as a potential solution to prevent the danger to the state security. The security of the State being the legitimate goal, this Court has upheld the power of the Parliament and State Legislatures to enact laws of preventive detention. The Court has time and again given the expression personal liberty its full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual in the Constitution was and yet leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sole earthly judge of right and wrong. As early as 1947, the Central Legislature found it necessary to enact the Foreign Exchange Regulation Act, 1947 and Imports and Exports (Control) Act, 1947. Then came the Import (Control) Order, 1955 to place the policy regarding imports on a surer footing. In the year 1962, a new Customs Act replaced the antiquated Sea Customs Act, 1878. The menace of smuggling and foreign exchange violations, however, continued to rise unabated. Parliament then came forward with the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). It provided for preventive detention of these antisocial elements . The Court in paragraphs 3 to 7 referred to COFEPOSA, SAFEMA and FERA, the amendments carried out in these Acts, and the constitutional protection given to COFEPOSA and SAFEMA. The preamble and the provisions of COFEPOSA were noted in paragraphs 9 to 14. The provisions of SAFEMA were noted in paragraphs 15 to 19. In paragraph 20 (pg. 71 of the Report) , the Court made following clarificatory observations: Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethod and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Roig Refining Co., 94 L.Ed. 381, be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Act, Parliament states that the violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy thereby casting serious adverse effect on the security of the State. Be that as it may, it is not necessary to pursue this line of reasoning since we are in total agreement with the approach evolved in Union of India v. H.S. Dhillon, (1971) 2 SCC 779 : (AIR 1972 SC 1061) - a decision by a Constitution Bench of seven Judges. The test evolved in the said decision is this in short: Where the legislative competence of Parliament to enact a particular statute is questioned, one must look at the several entries in List II to find out (applying the wellknown principles in this behalf) whether the said statute is relatable to any of those entries. If the statute does not relate to any of the entries in List II, no further inquiry is necessary. It must be held that Parliament is competent to enact that statute whether by virtue of the entries in List I and List III or by virtue of Article 248 read with Entry 97 of List I. In this case, it is not even suggested that either of the two enactments in question are rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation of foreign exchange regulations, penalty can be levied and its noncompliance results in civil imprisonment of the defaulter. The whole intent and idea behind COFEPOSA is to prevent violation of foreign exchange regulations or smuggling activities which have serious and deleterious effect on the national economy. In today s world the physical and geographical invasion may be difficult but it is easy to imperil the security of a State by disturbing its economy. The smugglers and foreign exchange manipulators by flouting the regulations and restrictions imposed by FEMA - by their misdeeds and misdemeanours - directly affect the national economy and thereby endanger the security of the country. In this situation, the distinction between acts where punishments are provided and the acts where arrest and prosecution are not contemplated pales into insignificance. We must remember : the person who violates foreign exchange regulations or indulges in smuggling activities succeeds in frustrating the development and growth of the country. His acts and omissions seriously affect national economy. Therefore, the relevance of provision for preventative detention of the antisocial element ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjective satisfaction based on which the order of detention is passed and the grounds in support thereof, is but one facet of the submission of the order being vitiated by non application of mind. 16. In the case of Jagannath Misra (supra) the Hon'ble Supreme Court found that there is certain degree of casualness in passing order of detention. The detaining Authority must apply its mind properly before passing order of detention. The Authority is obliged while passing order of detention and taking away liberty of the citizen of this country to exercise due care and caution and ensure that the person detained is so detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of detention should show that such care and caution was exercised and reflects sense of responsibility while depriving citizen of his liberty without trial. In the matter before the Hon'ble Supreme court, it was found that the order of detention refers to six out of eight possible grounds on which a person can be detained under Section 3(2)(15) of the Defence of India Act. All these eight grounds refers to foreigne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt was made to draw support from the judgment of the Hon'ble Supreme Court and which has been followed in two Division Bench judgments delivered later, in the case of Abubakar Suleman Vs. State of Maharashtra Ors. (2013 All M.R.(Cri.) 29) (Criminal Writ Petition No.2614 of 2012 decided on 25.10.2012.) The Division Bench applied the ratio of the Supreme Court Judgment in the case of Gimik Piotr Vs. State of Tamil Nadu Ors., ((2010)1 SCC 609). In the Gimik Piotr case, it was apparent that the passport was not returned to the detenu but was seized by the authority. This was a crucial and relevant aspect. If the passport was surrendered and was in custody of the detaining Authority or the competent Authority, then, the apprehension that the detenu would smuggle the currency out of India is to a certain extent taken care of and, therefore, that should have been referred to and despite that if the detaining authority is satisfied that it is necessary to detain the person and in order to prevent him from indulging in smuggling activities in future, then, that was required to be specifically set out. The detention order in those matters reflected total non application of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the detenu and in order to prevent him from indulging in similar activities in future that the detention order has been made. 22. In such a situation, the law laid down in the later decision in the case of Nafisa Syed Ali Vs. State of Maharashtra Ors. (supra) or Prithvi Sovern Kuntal Vs. State of Maharashtra Ors. (supra) will not apply. These matters and cases noted the patent variance between subjective satisfaction recorded in the order and the grounds or reasons in support thereof. The order reflects non application of mind to the surrender and seizure of the passport and that being in the custody of the passport authority or the competent authority investigating the crime. Once on facts the situation is different, then, none of these decisions can be of any assistance to the detenu. 23. We also do not find any substance in the other contention that the right of the detenu to make representation being hampered. He was provided with all materials that requires him to make effective and proper representation. This is not a case where the material or the grounds were not supplied. Rather this is a case where the detenu desired to have better and further partic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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