9911796707
TMI Blog2024 (7) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods etc., all the acts being separated and distinct must receive its connotation and the detenu must be tested against the prevented acts, as specified in the COFEPOSA Act. In a similar situation, when clause (iii) of Section 3 (1) has clubbed three activities in relation to the smuggled goods i.e. either its transport or its concealment or keeping the smuggled goods, it was imperative for the Detaining Authority to specify to the detenu as to which of these activities or all of the activities in which the detenu was engaged, were necessary to be prevented, as the act was prejudicial to the conservation or augmentation of foreign exchange - In absence of such a clarity being offered to the detenu, who had a right to prefer a representation, being aggrieved thereof and had a right to get a decision thereon, the detention order is vitiated by non-application of mind and, hence, it cannot be sustained. Application disposed off. - BHARATI DANGRE MANJUSHA DESHPANDE, JJ. For the Petitioner : Ms. A.M.Z. Ansari with Nasreen Ayushi. For the Respondent No. 1/Union of India : Mr. Sandesh Patil w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as diverted into the domestic market. 4. The grounds of detention communicated to the detenu clearly set out as under :- 2. In view of the facts, circumstances, findings, corroborative evidences and your role in the whole operation, I am satisfied that Shri Rakesh Ramdas Jejurkar i.e. you are an important member of a well-organized smuggling syndicate involved in smuggling of huge quantity of Areca Nuts by way of mis-declaration of imported goods and fraudulently procuring IECs in the name of third persons. Your past record shows that your are a habitual offender and involved in such prejudicial activities in a repeated manner. The underlying common threat is your propensity to smuggle goods for making illicit profit and putting the national economy into danger which needs to be curbed and you need to be prevented from indulging in such activities further. 3. I am satisfied that Shri Rakesh Ramdas Jejurkar i.e. you have indulged in activities amounting to smuggling in terms of Section 2(39) of the Customs Act, 1962 read with Section 2 (e) of COFEPOSA Act, 1974 and your acts of deliberate commissions and omissions have rendered the goods involved liable to confiscation under the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and a casual and cavalier exercise of the power of the detaining by the detaining authority. The Petitioner says and submits that the subjective satisfaction arrived at by the detaining authority is sham and unreal. The impugned order of detention based on such subjective satisfaction is mala fide, null and void. 6. In assailing the order of detention, Ms. Ansari has submitted that the order expressing satisfaction lacks clarity as the Detaining Authority has exercised the satisfaction to detain the detenu under the COFEPOSA Act, 1974, with a view to prevent him from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future and, since, the order itself refers to the distinct acts in disjunction, in absence of an opinion being formed as to which activity of the detenu is intended to be prevented by exercising the power under the COFEPOSA Act, the impugned order passed suffers from the vice of arbitrariness and cannot be sustained is her submission. She would place reliance upon the decision of the Apex Court in the case of Kishori Mohan Bera Vs. The State of W.B. AIR 1972 SC 1749, where a detenu detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reproducing the language used in Section 3 (1) of the Act and, therefore, the challenge to the order on the said ground is rejected. In addition, Mr. Patil has also placed reliance upon a view adopted by the Karnataka High Court in the case of G.K. Kantharaja Setty Vs. State of Karnataka Anr. 1987 SCC OnLine Kar 396, where the Division Bench, by relying upon Kishori Mohan Bera (supra) did not accept the argument, but made the following pertinent observations :- 41. It is needless to state that the smuggling activity involves clandestine operations and for its successful functioning various links are necessary; not only bringing of the contraband goods into India but also aiding the subsequent operations so that the goods may reach the purchasers or the consumers, successfully; are necessary. Whoever knowingly partakes in any of the activities will have to be prevented from indulging in such an activity so that the object of the Act can be achieved. It is in this background the word dealing used in S.3 (1) (iv) will have to be construed and if so construed, it will net in any activity by which the contraband goods are carried for ??? illegal purposes. 9. In all fairness, Mr. Patil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enu under Article 22 of the Constitution of India. 11. The impugned order of detention passed by the Joint Secretary to the Government of India, has exercised the power conferred under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and Section 3, which is an enabling power for detaining a person with a view to prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange, also contemplates distinct situations, when exercise of the power is justified. Section 3 of the COFEPOSA Act deserve reproduction and reads thus :- 3. Power to make orders detaining certain persons.-( 1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument advanced on behalf of the Petitioner is, the detaining authority is not clear as to what activity of the detenu he intended to prevent, whether it was the activity of smuggling of goods or activity of abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. A similar question arose while detaining a person under the Maintenance of Internal Security Act, 1971 in Kishori Mohan Bera (supra), where the detention order passed by the District Magistrate, Hooghly on 24/09/1971, directed the Petitioner s detention, being satisfied that it was necessary to do so, with a view to prevent him from acting in manner prejudicial to maintenance of public order or security of State . The same was challenged as the detaining authority has failed to apply its mind with any seriousness either to the acts alleged in the grounds of detention or to the question whether they fell within the purview of the expression the security of the State or the maintenance of public order or both. 14. Considering the power available to the executive to detain a person without recourse to the ordinary laws of the land and to a trial by courts, on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that as the order stands, it would appear that either he was not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely mechanically reproduced the language of Section 3 (1) (a) (ii). The impact of this confusion was succinctly noted in the following observation :- When such equivocal language is used in an order and the detenu is not told whether his alleged activities set out in the grounds of detention fell under one head or the other, or both, it is not difficult to appreciate that a detenu might find it hard to make an adequate representation to Government and the Advisory Board. It is in these circumstances, impugned order being couched in a language which demonstrated an element of casualness with which it was made, was quashed and set aside. 16. It is a settled position of law that if a statutory enactment confers an extraordinary power on the executive, to detain a person without recourse to the ordinary laws of land and by surpassing the stage of trial, exercise of such power places ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edha Gadgil, Principal Secretary (Appeals Security) to the Government of Maharashtra, Home Department, Specially empowered under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) vide Government Order, Home Department (Special) No. MIS-2009/CR-113/SPL-3(A), dated the 30th September, 2009, am satisfied with respect to the person known as Shri Naresh Kumar Sachadeva (Age 40 years) residing at GD-81, Ground Floor, Pritampura, New Delhi, that with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods it is necessary to make the following order: 18. Somehow similar argument was advanced before the Court that the detention order is couched in a manner that it demonstrates the element of casualness and, therefore, it is vitiated on account of non-application of mind. The argument was opposed by the State, by submitting that the detention order not only refer to the activities indulged in by the petitioner of transporting, but also of concealing and keeping smuggled goods and, therefore, it covers all the three activities, in which the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses the disjunctive word or . If the Detaining Authority intended to invoke detention remedy against the petitioner for different activities including for transporting, concealing, keeping smuggled goods and dealing with any smuggled goods, it ought to have used the conjunctive expression and or could have used punctuation comma to mean that the proposed action against the Petitioner was for all the activities in respect of which material was made available before it. We may place on record that the original filed was produced before us. The note of the Detaining Authority dated 8th June, 2010 as can be discerned from the said file merely states that he has considered the proposal of sponsoring Authority and the documents submitted and was convinced and satisfied that detention order needs to be issued. The fact remains that the detention order as has been issued and initialed by the Detaining Authority used the disjunctive word or . Recording that the activities of detenu, though being classified as serious and social evil, it was held that irrespective of enormity and gravity of the allegations, the Court will have to intervene and, therefore, the impugned detention order was qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, which would fall in sub-clause (iv). 21. We are unable to subscribe to the said view, since it is the primary duty of the Court to give effect to the intention of the legislature and when Section 3 of the COFEPOSA Act is perused and read keeping in mind the intention of the lawmakers, to provide for preventive detention in certain cases for the purpose of conservation and augmentation of foreign exchange and prevention of smuggling activities, the various contingencies stipulated in the said provision, which the legislature indicated disjunctively will have to be read as indicated in the statute. With a view to prevent any person acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to prevent him from the five stipulations, specifically carved out, each being stipulated in disjunction of the other and, particularly, when a look at sub-clause (iii), which contemplate an action to prevent a person from engaging in, transporting or concealing or keeping smuggled goods; each activity being described in disjunction with the other. Upon being satisfied that a person is either engaged in transporting or concealing or keeping the smu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
