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TMI Blog2002 (3) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of total non-application of mind to a relevant and vital material touching question of the culpability as well as the necessity to order the detention of the petitioner. The impugned order of detention, therefore, has been rightly quashed and the writ petitioner ordered to be released from detention in prison. - 218 of 2001 - - - Dated:- 15-3-2002 - M.B. Shah and Doraiswamy Raju, JJ. [Judgment per : M.B. Shah, J.]. - Petitioner has challenged the detention order dated 28th May, 2001 passed under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA") with a view to prevent him from smuggling goods in future. The allegations against the petitioner in the grounds of detention are that he was holding an Indian Passport dated 26th October, 1994 and he arrived form Singapore on 30th March, 2001 at Chennai Airport. After completing migration formalities, he collected his baggages and was proceeding to exit gate where he was intercepted by Customs Intelligence Officer on suspicion that he might be carrying any dutiable goods. From his possession, Panasonic GD 92 Cellphones with accessor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be said to be, in any way, arbitrary. 5.Before deciding the contention raised by the petitioner, it is to be reiterated that the Preventive Detention is not a punitive Act and it is not alternative of criminal trial under the law. It does not empower the authority to punish a person without trial. Its purpose is to prevent a person from indulging in activities, such as smuggling and or such other anti social activities as provided under the Preventive Detention Law. 6.In Mohd. Subrati alia Mohd. Karim v. State of West Bengal [(1973 (3) SCC 250, 256] this Court observed thus :— "It must be remembered that the personal liberty of an individual has been given an honoured place in the fundamental rights which our Constitution has jealously protected against illegal and arbitrary deprivation, and that this Court has been entrusted with a duty and invested with a power to enforce that fundamental right." 7.Dealing with solitary act in a preventive detention matter, Krishna lyer J. in Anil Dey v. State of West Bengal [1974 (4) SCC 514] observed as under :- "A swallow cannot make a summer ordinarily, and a solitary fugitive act of criminality may not normally form the found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct by even if there is a single act, such an inference may justifiably be drawn in a given case. Here however, that is not possible. We do not think that one single act of wagon breaking attributed to the petitioner was of such a character that any reasonable man could be satisfied, merely on the basis of the commission of such a solitary isolated act that the petitioner would be likely to indulge in further acts of wagon breaking in future and in order to prevent him from doing so, he must be detained." 10.The aforesaid judgment was considered by the Constitution Bench in Attorney General for India and Others v. Amratlal Prajivandas and others [(1994) 5 SCC 54] and it was held thus :- "Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing is known about him. In representation to the Commissioner, it was pointed out that he was Managing Director of Padmaja Infotech limited, a public limited company, having office at Hyderabad, Andhra Pradesh and that he had gone to Singapore regarding his company's business. He only purchased some toys and clothes for his children. As he was not having any dutiable item, he decided to go by green channel. To the officer who checked him, he informed that baggages were not belonging to him but the officer told him that he was pushing the trolley and, therefore, he without listening him opened the baggages without tags. It was also pointed out that the officer arrested him for no fault and locked him with unclaimed baggages without tags under some mistake. Hence, it is submitted that the State Government without applying its mind to the aforesaid facts and alleged solitary incident erroneously arrived at the conclusion that there was likelihood of petitioner indulging in such prejudicial activities again while on bail, even though the bail application of the petitioner was rejected. 13.It is true that in appropriate case, an inference could legitimately be drawn even from a sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re twice as a 'tourist' and, therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a 'tourist', inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above it is totally unreasonable to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicial activities. 14.In the result, the writ petition is allowed. The impugned detention order is quashed and set aside. The petitioner be released forthwith if not required in any other case. 15.[Judgment per : Doraiswamy Raju, J.]. - I am in respectful agreement with the judgment of my esteemed and learned brother that the impugned order of detention in this case need be quashed and the Writ Petition be allowed by releasing the detenu. But, I would like to confine the ground for the same on the question of non-application of mind to all the relevant facts than make any observations on the general principles of law, which, in my vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner under the Act with a view to prevent the petitioner from indulging in smuggling goods in future. On that view of the matter, the impugned detention order came to be passed and the same is challenged by means of the above Writ Petition under Article 32 of the Constitution of India, for the alleged violation of his fundamental rights. 18.Heard Shri A.T.M. Sampath, learned Counsel for the petitioner, and Shri Mukul Rohtagi, learned Additional Solicitor General for respondents No. 2 3 and Shri S. Balakrishnan, Senior Advocate for the State of Tamil Nadu. The extreme stand taken for the petitioner as a ground based on law that a solitary incident, even if it be true, though the involvement of the petitioner in the occurrence is seriously questioned, cannot be the basis for invoking the powers of detention necessarily obligated the learned Additional Solicitor General also to take a contra stand to the other extreme. Though, several decided cases have been brought to our notice, including the latest decision since reported in VC Mohan v. Union of India Others [JT 2002(2) SC 365], I consider it unnecessary to deal with every one of them. 19.The decision rendered in Attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has international ramifications. These acts are preceded by a good amount of planning and organization. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention." 20.In the above context, what is required to be seen is as to whether on the materials placed on record, it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the petitioner would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to such other person. Such plea cannot be also brushed aside in this case as one merely invented in the air but seem to have necessary basis from the fact that baggage ticket Nos. 0021777 and 0021771 were registered in the name of one Babu and that concedingly action and investigation in this regard is still pending and has not concluded so far. If the baggage really belonged to another person as was stated to have been registered, it necessarily follows that the petitioner cannot be the owner of the very same baggage. The seriously doubtful position about the elementary and basic fact regarding the ownership of the baggage and the admitted inconclusive stage of the investigation in this regard could not legitimately help the authorities to pass any order of detention against the petitioner on the perfunctory and inchoate materials relied upon. Apart from the absence of any positive or concrete materials to connect the baggage in question with the petitioner, the nature of stand disclosed in the counter affidavit filed on behalf of the 1st respondent on this aspect does not really help the Authority to prove that the said material and such vitally relevant aspect was either adver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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