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Shahul Hamid Ismail Shahbendray Patel Vs. Shri R.D. Pradhan - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberCriminal Application Nos. 287 and 288 of 1978
Judge
Reported in(1978)80BOMLR440
AppellantShahul Hamid Ismail Shahbendray Patel
RespondentShri R.D. Pradhan
DispositionAppeal dismissed
Excerpt:
.....these orders of detentions clearly demonstrate misuse of power and non-application of mind. smuggling goods and engaging oneself in transporting smuggled goods are two distinct and separate activities and their joining together in the detention orders clearly indicated non-application of mind. pradhan, secretary to the government, home department, as well as shri. they admitted that both of them purchased the gold as well as the wrist watches from a shop at dubai and for that they had invested 20,000 dirhams towards purchase. according to the detaining authority a large quantum of the gold and wrist watches brought by the detenus,'nature of its concealment, their conduct in not disclosing these goods when asked by the customs authorities clearly indicated their expertise in the..........to preventing the detenus from smuggling goods or engaging themselves in transporting the smuggled goods. smuggling goods and engaging oneself in transporting smuggled goods are two distinct and separate activities and their joining together in the detention orders clearly indicated non-application of mind. he further contended that in the affidavits filed before this court, it is stated by the detaining authority that the records and in particular the detenus' passports show that the detenus had made certain trips earlier to india during the years 1975-78. according to mr. merchant this fact or ground was not disclosed in the communication dated march 6, 1978 whereby the grounds of detention were communicated to the detenus. therefore, according to the learned counsel this.....
Judgment:

Dharmadhikari, J.

1. These two criminal applications were heard together and are being disposed of by this common judgment as they involve common questions of fact and law.

2. The petitioners in both these applications were detained on March 8, 1978 at Bombay in pursuance of the two distinct detention orders dated March 6, 1978, issued by respondent No. 1 Shri. Pradhan, Secretary to the Government of Maharashtra, Home Department. By a separate order issued on March 6, 1978 the place and conditions of the detention were also specified. By the communication dated March 6, 1978 the grounds of detention were also communicated to the detenus as required under Section 3(3) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974, hereinafter referred to as the CO-FEPOSA Act, read with Article 22(5) of the Constitution of India. It further appears from the record that thereafter the Government of Maharashtra made a reference to the Advisory Board under Section 8(b) of the COFEPOSA Act on March 13, 1978 and the detenus were heard by the Advisory Board on April 7, 1978. The Advisory Board by its report dated April 7/13, 1978 reported that there is sufficient cause for detention of the detenus. After the receipt of the said report, the Government of Maharashtra has confirmed the said detention order by the order dated April 25, 1978 as contemplated by Section 8(1) of the COFEPOSA Act. It is these orders of detention, which are challenged in these two applications on various grounds. During the course of arguments, Shri Merchant, learned Counsel appearing for the petitioners contended before us that in the communication dated March 6, 1978 no past prejudicial activities of the detenus are either disclosed or referred to, sq as to enable the detaining authority to come to the conclusion that with a view to preventing them from smuggling goods or from transporting the smuggled goods it is necessary to detain them under the COFEPOSA Act. He further contended that only an isolated solitary incident is stated in the grounds of detention and from this solitary act an inference cannot be drawn that the detenus were engaged either in smuggling goods or were transporting smuggling goods, nor it can be said that with a view to preventing them from smuggling goods or transporting the smuggled goods the detention under the COFEPOSA Act is necessary. According to Mr. Merchant, these orders of detentions clearly demonstrate misuse of power and non-application of mind. He further contended that from the very reading of the detention orders it is quite obvious that the orders were issued by the Secretary to the Government of Maharashtra with a view to preventing the detenus from smuggling goods or engaging themselves in transporting the smuggled goods. Smuggling goods and engaging oneself in transporting smuggled goods are two distinct and separate activities and their joining together in the detention orders clearly indicated non-application of mind. He further contended that in the affidavits filed before this Court, it is stated by the detaining authority that the records and in particular the detenus' passports show that the detenus had made certain trips earlier to India during the years 1975-78. According to Mr. Merchant this fact or ground was not disclosed in the communication dated March 6, 1978 whereby the grounds of detention were communicated to the detenus. Therefore, according to the learned Counsel this non-disclosure of the relevant material has disabled the detenus from making any effective representation against their detention and hence on that ground also the orders of detention are wholly vitiated. In support of his contention Mr. Merchant has relied upon several decisions of the Supreme Court including following decisions reported in Shaik Hanif v. State of W.B. : 1974CriLJ606 Kartic Chandra v. State of W.B. : 1974CriLJ1474 , Srilal Shaw v. State of West Bengal : 1975CriLJ423 , Khudiram Das v. State of W.B. : [1975]2SCR832 , L.K. Das v. State of W.B. : AIR1975SC753 and Abdul Gaffer v. State of W.B. : 1975CriLJ1233 .

3. At the time of hearing, the challenge relating to the vires or legality of the provisions of the COFEPOSA Act and the Rules made thereunder or the provisions of the Maharashtra Conditions of the Detention Order, 1974 were neither argued nor pressed.

4. In reply to the various contentions raised in the petitions, Shri. Pradhan, Secretary to the Government, Home Department, as well as Shri. Dixit, Desk Officer, Home Department (Special) have filed their detailed affidavits. The detaining authority has denied that the detention orders were issued in mala fide exercise of the power conferred on it or that it suffers from non-application of mind or were issued for any purpose other than those mentioned in the order itself. According to the detaining authority, after applying his mind to the material placed before him he has issued the detention orders only after satisfying himself that it was necessary to do so, so as to prevent the detenus from indulging in prejudicial activities. According to the detaining authority, the facts in the present case demonstrated potentiality for continuing criminality and indicated previous practice, experiment and expertise. He further stated that the activities of the detenus on the basis of which prognosis is made is reasonably suggestive of the repetitive tendency or intention on the part of the detenus to act likewise in future. Then in the affidavits the detaining authority has reproduced the facts in detail. According to the detaining authority, detenu Shabandry Patel. Aslam with his nephew arrived from Dubai by Flight No. GP 072 A on February 1, 1978 at Santacruz airport. Both of them arrived together and had pooled their baggage. Before examination of their luggage the detenus were asked by the Customs Officer to declare whether they have carried any gold, diamonds, watches etc. concealed in the baggage or on their person, to which they replied in the negative. On examination of the brown suit case brought by them, fifteen gold bars weighing 150 tolas bearing foreign markings valued at Rs. 1,22,430 and twenty 'Nino' gents wrist watches valued at Rs. 6,000 were recovered from the false bottom of the said brown suit case. On personal search of one of the detenus viz. Shabandry Patel Mohd. Iqbal one 'Nino' wrist watch valued at Rs. 300 was also recovered. All the abovesaid goods and other dutiable Articles valued at Rs. 1,29,600 were seized by the Customs authorities under the provisions of the Customs Act. The statements of the detenus were duly recorded under the Customs Act and they had admitted all these facts. They admitted that both of them purchased the gold as well as the wrist watches from a shop at Dubai and for that they had invested 20,000 Dirhams towards purchase. They further admitted that both of them purchased at Dubai brown bag having false bottom and concealed the contraband goods therein. The detenus further admitted that they had brought these articles for selling them in Bombay market for a profit and that they were aware that bringing these goods in India is an offence. It is also stated in the affidavits of the detaining: authority that detenu Aslam had made six trips to India during the period from February 7, 1975 to February 1, 1978, whereas detenu Shabandry Patel Mohd. Iqbal had made eight trips to India during the period from June 10, 1975 to February 1, 1978. These two detenus are related to each other being uncle and nephew. According to the respondents, the fact regarding their earlier trips to India is enumerated in the affidavits filed in reply to the allegations made in the petition and was not a ground of detention as such. According to the detaining authority a large quantum of the gold and wrist watches brought by the detenus,' nature of its concealment, their conduct in not disclosing these goods when asked by the customs authorities clearly indicated their expertise in the matter and from the facts and circumstances of the present case it is quite obvious and clear that it was necessary to detain the detenus so as to prevent them from carrying on their prejudicial activities any further.

5. Therefore, from the rival contentions raised before us it is quite obvious that the main contention raised in the petitions is based on the fact that the detention order is issued only on the basis of an isolated and a solitary incident, which according to the petitioners was not enough to reach a conclusion or satisfaction contemplated by Section 3(1) of the COFEPOSA Act. It is by now well settled that the Court has to be vigilant to see that isolated offences are not exploited by the executive authority for clamping preventive detention insouciantly to by-pass the normal judicial process. But there are exceptional categories of cases-where an only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category of cases it is difficult to predicate abuse of power or absence of application of mind by the authority if preventive detention is directed on one specialised crime. See Babulal v. State of W.B. : 1975CriLJ585 .

6. It is no doubt true that no general or hard and fast rule can be laid down in this behalf and the matter must depend on the facts and circumstances of each case. In a given case, even from one single incident depending upon its magnitude and expertise it will not be unreasonable to infer that there was a trend or course of criminal conduct although intercepted. While dealing with a case of solitary act or incident in Debu Mahto v. State of W.B. : 1974CriLJ699 , the Supreme Court observed as under (p. 817):.We must of course make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances.

In this context a reference may also be made to a later decision of the Supreme Court in Israil Sk. v. Dist. Magistrate, West Dinajpur : 1975CriLJ275 .

7. In the present case we are dealing with an act or incident involving an economic offence. Smuggling activities are clandestinely organised and carried on. The present Act was enacted to check large scale smuggling activities as normal machinery was found unequal to check large scale smuggling due to its secret or clandestine mode of operation. It is equally well settled that sufficiency of evidence before the detaining authority is not a matter for Courts to decide. More so, when the particulars furnished to the detenus bear a rational connection with the object to be achieved viz. preventing the detenus from carrying on prejudicial activities. In the case of this kind the investigation as to the truthfulness of the facts forming basis of grounds of detention cannot also be embarked. Therefore, while exercising peripheral jurisdiction in matters of preventive detention, it is not possible for this Court to enter into a detailed scrutiny either regarding sufficiency of evidence or its truthfulness. The orders of detention issued in the present cases will have to be scrutinised and considered in the light of these will established principles. It is no doubt true that no past prejudicial activities of these detenus are brought on record or disclosed in the grounds of detention. But for mentioning the fact of their previous trips to India during the period from 1975 to 1978 nothing more is suggested in the affidavits filed by the detaining authorities. As a matter of fact it is the case of the detaining authority that the earlier trips had nothing to do with the present detention order and while issuing the present detention order this fact was not at all considered by the detaining authority as it was not germane for arriving at a satisfaction contemplated by Section 3(1) of the COFEPOSA Act. From the grounds of detention which are based on the statements made by the detenus under Section 108 of the Customs Act, it is quite clear that when both the detenus arrived from Dubai on February 1, 1978 they were asked to declare as to whether they have carried any gold, diamonds, watches etc. concealed in the baggage or on their person and in reply to this question the detenus replied in the negative. According to the respondents this conduct of the detenus was like that of seasoned criminals. Further, it is quite obvious from the grounds of detention that from them fifteen gold bars weighing 150 tolas bearing foreign markings valued at Rs. 1,22,430 as well as twenty 'Nino' gents wrist watches valued at Rs. 6,000 were recovered from the false bottom of the brown suit case. Apart from this on personal search of one of the detenus one 'Nino' wrist watch valued at Rs. 300 was also recovered. It appears to be the case of both the detenus, at least in their statements recorded under Section 108 of the Customs Act that the gold and the gents wrist watches seized from them were purchased from a shop at Dubai, for which they had invested a certain amount. They also admitted that both of them purchased at Dubai a brown hag having false bottom and then concealed the contraband goods in the said false bottom. They further admitted in their statements before the Customs authorities that they had purchased these articles for selling them in the Bombay market for a profit and they were also aware that to bring these goods in India is an offence. In all such matters the conduct of the person concerned will have to be considered in the light of surrounding circumstances and cumulative view of the whole matter will have to be taken. From the material placed on record it is quite apparent that both the detenus travelled together and had pooled their baggage. Before examination of their baggage they were asked in specific terms by the customs authorities to declare whether they had carried any gold, diamonds, watches etc. concealed in the said baggage or on their person. To this they gave a reply in the negative like seasoned criminals. On examination of the baggage it was found that these articles and goods were brought in the brown suit case, which had a false bottom. The goods brought was primary gold viz. fifteen gold bars weighing about 150 tolas bearing foreign markings. They had also brought twenty 'Nino' gents wrist watches and that too concealed in the false bottom of the brown suit case. On personal search of one of the detenus one 'Nino wrist watch was also recovered. Their method of concealing goods in the false bottom of the suit case clearly indicated that they were acting as seasoned criminals. It also indicated their expertise, which shows that they have acquired some experience as a result of which this particular method of smuggling was adopted by them. The method adopted for smuggling goods in a bag having a false bottom indicated organised practice followed by the smugglers. In our opinion at least such a possibility or inference cannot be wholly ruled out. Apart from this one wrist watch was also found on the person of one of the detenus. This cannot be termed to be an innocent act of a layman or novice. On their own statements they had brought these articles for selling them in Bombay market for profit. Large quantum of gold brought, the nature in which it was concealed in the false bottom of the suit case coupled with their conduct in not disclosing the fact when questioned by the customs authorities clearly demonstrate potentiality for continued criminality and indicate previous practice, experiment and expertise. In a given case even the first act of this kind can be termed to be the beginning of continuing criminal activity. In this case the nature of the act and its magnitude clearly justify an inference that if the detenus were not detained they are likely to indulge in commission of such acts in future. Therefore, in our opinion, on the basis of the facts and circumstances of the present case the detaining authority could have arrived at the satisfaction contemplated by Section 3(1) of the COFEPOSA Act. Therefore, it is not possible for us to accept the contention of Mr. Merchant in this behalf.

8. So far as the contention raised by Mr. Merchant regarding non-communication of the material grounds is concerned, in our opinion there is no substance in the said contention also. It is no doubt true that in the affidavits filed before us a reference is made to the earlier trips of the detenus, but it is not suggested thereby that on earlier occasion also they had smuggled goods or that was considered as a prejudicial activity. A reference is made to this in the affidavit not as a primary fact but merely a subsidiary one. We do not think that from this statement of fact referred to in the affidavit filed in reply to the allegations made in the petitions it was intended to suggest that it was the basis of subjective satisfaction. Therefore, it did not constitute any additional material prejudicial to the petitioners which could be said to have gone into formation of subjective satisfaction of the detaining authority and therefore non-disclosure of it to the petitioners could not have an effect of invalidating the order of detention. This did not form part of the grounds of detention taken into consideration by the detaining authority. On the contrary it was only stated by way of reply to the allegations made in the petitions. The grounds contemplated by Section 3(3) of the Act mean the material on which the order of detention is primarily based. This must show the factual constituents also. They must contain pith and substance of primary facts but not subsidiary facts or evidentiary details. In our opinion the requirement as to the communication of all the essential constitution of the grounds was complied with in the present case and all the necessary details were incorporated in the material communicated to the detenus. Practically the grounds of detention were based on the statements of the detenus themselves and, therefore, in our opinion, in the present case it cannot be said that the provisions of Section 3(3) of the COFEPOSA Act or Article 22 of the Constitution were not complied with.

9. Then it was contended by Mr. Merchant that using of vague words in the order viz. 'with a view to preventing him from smuggling goods and engaging in transport of smuggled goods', clearly indicated non-application of mind because a person cannot smuggle goods and at the same time engage himself in transporting the smuggled goods. According to Mr. Merchant the term 'engaged in transporting' clearly indicates transporting smuggled goods by a vehicle or otherwise. It is not possible for us to accept this contention also. The word 'transport', or 'transporting' is not defined in the Act. In a given case the word 'transport' can mean carrying on or conveying the goods from one place to another. Depending on the facts and circumstances of each case it could also be said that the person who carried goods on his person or in his baggage from one place to another is engaged in transporting. The facts of this case are a bit different and peculiar. In this case both the detenus in their statements recorded under Section 108 of the Customs Act have stated that they had travelled together and had pooled their baggage. According to them both of them had purchased these goods in Dubai Market. In this case they were claiming to be joint owners. The goods were being carried in the baggage. One of the detenus had also one wrist watch on his person. The whole conduct of the detenus was dubious and overlapping. In such matters it is not always possible to decide at the threshold as to who is the owner and who is the carrier. In these circumstances, in our opinion, having regard to the facts and circumstances of the case it cannot be said that the phraseology used by the detaining authority in the detention order was either fallacious or disclosed any non-application of mind.

10. These are the only contentions raised before us.

11. It is no doubt true that from the material placed before us it does appear that after issuing the detention order no further effective steps were taken by the authorities concerned in the matter of investigation and trial. It is needless to say that the provisions of the COFEPOSA Act could not be permitted to be misused as a short cut for a regular prosecution and it is not open to the customs authorities to sleep over the matter and not to carry out any investigation in the crime or not to prosecute the accused by filing the necessary chargesheet before competent Court of law only because a person is detained under the COFEPOSA Act. This was the reason why we wanted to know as to how the matter stands to day. Now by the further affidavit filed by the inspector of Customs we are informed that a show cause notice is already issued and necessary sanction for prosecution is also accorded and a complaint is likely to be filed before the competent Court on July 17, 1978. In these circumstances, in our opinion, while exercising the peripheral jurisdiction in matters of preventive detention it is not possible for us to interfere with the orders of detention.

12. In the result, therefore, the petitions fail and are dismissed. Rule in both the petitions is discharged.


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