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Harendra Gangadas Doshi Vs. Addl. Secy. to the Govt. of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1985CriLJ293; (1985)1GLR169(GJ)
AppellantHarendra Gangadas Doshi
RespondentAddl. Secy. to the Govt. of India and ors.
Cases ReferredShama Rao v. Union Territory
Excerpt:
- - the new section reads as follows :9. (1) notwithstanding anything contained in this act, any person (including a foreigner) in respect of 'whom an order of detention is made under this act at any time before the 31st day of july, 1987 may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of article 22 of the constitution, the opinion of an advisory borard for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods and the central government or any officer of the central government,.....p.s. poti, c.j.1. a division bench of this court, while hearing a batch of petitions challenging the detention orders passed by the central government under the conservation of foreign exchange and prevention of smuggling activities act, 1974, was called upon to consider the validity of a declaration made by the empowered officer of the central government under section 9 of the said act as amended by ordinance no. 8 of 1984. the ordinance substituted section 9 of the act by a new section. the new section reads as follows :9. (1) notwithstanding anything contained in this act, any person (including a foreigner) in respect of 'whom an order of detention is made under this act at any time before the 31st day of july, 1987 may be detained without obtaining, in accordance with the provisions.....
Judgment:

P.S. Poti, C.J.

1. A Division Bench of this Court, while hearing a batch of petitions challenging the detention orders passed by the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was called upon to consider the validity of a declaration made by the empowered officer of the Central Government under Section 9 of the said Act as amended by Ordinance No. 8 of 1984. The Ordinance substituted Section 9 of the Act by a new section. The new section reads as follows :

9. (1) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of 'whom an order of detention is made under this Act at any time before the 31st day of July, 1987 may be detained without obtaining, in accordance with the provisions of Sub-clause (a) of clause (4) of Article 22 of the Constitution, the opinion of an Advisory Borard for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods and the Central Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person --

(a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling ; or

(b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling ; or

(c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling.

and makes a declaration to that effect within five weeks of the detention of such person. Explanation 1.-- In this sub-section, 'area highly vulnerable to smuggling' means --

(i) the Indian customs waters contiguous to the States of Gujarat, Karnataka, Kerala, Maharashtra and Tamil Nadu and the Union territories of Goa, Daman and Diu and Pondicherry ;

(ii) the inland area fifty kilometres in width from the coast of India falling within the territories of the States of Gujarat, Karnataka, Kerala, Maharashtra and Tamil Nadu and the Union territories of Goa, Daman and Diu and Pondicherry ;

(iii) the inland area fifty kilometres in width from the India-Pakistan border in the States of Gujarat, Jammu and Kashmir, Punjab and Rajasthan ;

(iv) the customs airport of Delhi, and

(v) such further or other Indian customs waters, or inland area not exceeding one hundred kilometres in width from any other coast or border of India, or such other customs station, as the Central Government may, having regard to the vulnerability of such waters, area or customs station, as the case may be, to smuggling, by notification in the Official Gazette, specify in this behalf.

Explanation 2. -- For the purposes of Explanation 1, 'customs airport' and 'customs station' shall have the same meaning as in clauses (10) and (13) of Section 2 of the Customs Act, 1962, respectively.

(2) In the case of any person detained under a detention order to which the provisions of Sub-section (1) apply, Section 8 shall have effect subject to the following modifications, namely :

(i) in clause (b), for the words 'shall, within five weeks', the words 'shall, within four months and two weeks' shall be substituted ;

(ii) in clause (c), -

(1) for the words 'the detention of the person concerned' the words 'the continued detention of the person concerned' shall be substituted ;

(2) for the words 'eleven weeks', the words 'five months and three weeks' shall be substituted ;

(iii). in clause (f), for the words 'for the detention', at both the places where they occur, the words 'for the continued detention' shall be substituted.'

It is this section which applies to the present cases. The section contemplates satisfaction on the part of the Central Government or the empowered officer of the Central Government in terms mentioned in clauses (a), (b) or (c) of Sub-section (1) of Section 9. Such satisfaction was recorded in these cases (in two of these cases, namely Special Criminal Applications 485 and 399 of 1984, this question does not arise as there is no challenge to any declaration in those cases, but we have mentioned in the cause title those two cases also because reference order proceeds as if the question arises in those cases also and reference has been made in that manner) and the question the Division Bench was called upon to consider was whether there was factual basis for recording such satisfaction. Reliance was placed on the decision of the Supreme Court in Smt. Rekhaben Virendra Kapadia v. State of Gujarat : 1979CriLJ212 by the petitioners to contend that the order of detention was based on a past incident so distant in point of time that the requirement of Section 9 was not satisfied in either of these cases. It was contended that this was the approach made in the Supreme Court decision adverted to and therefore it was urged before us that making the same approach the declarations must be found to be bad in these cases. The Judges of the Division Bench were evidently of different views on the subject and the Bench after stating these felt that it would be proper, in view of the importance of the question, to refer the question for decision to a Full Bench. We notice that the question that we are called upon to decide has not been as such stated by the Division Bench in the order of reference. In fact it would appear that the challenge was to the declaration under Section 9(1) and the challenge was made on the basis that when once it was shown that the declaration was based only upon the materials furnished by an incident of an anterior date it would not be possible for the Court to uphold such declaration, for clause (a) refers to satisfaction of the officer that the person 'smuggles' and similar is the case with clauses (b) and (c) and it could not be said that a person 'smuggles' goods merely because the available materials indicate that he had smuggled goods. In the absence of a question framed or posed by the Division Bench we have necessarily to pose it so that we may furnish the answer. After discussion at the Bar and after going through the order of reference we propose to answer the question which we pose in the following form :

In a case where the declaration under Section 9(1) of the COFEPOSA Act records satisfaction in terms of clauses (a), (b) and (c) of Section 9(1) of the Act could such declaration be upheld if such satisfaction is based only on material relating to incidents of dates prior to the date of declaration and even prior to the date of order of detention.

An answer to this should furnish the answer called for in this reference.

2. It may not be necessary to state the facts in all these cases in view of the course we propose to adopt. Statement of facts to follow is more illustrative than exhaustive. The facts which are relevant for seven of these petitions are identical. They are Special Criminal Applications Nos. 427,428,434,435,456,457, and 458 of 1984. All these seven cases are based upon the same set of facts and the detention order in all these cases is that of 29-6-1984. Pursuant to such orders the petitioners have been detained. The amendment of Section 9 of the COFEPOSA Act was by Ordinance No. 8 of 1984 on 13-7-1984. The declarations under Section 9 impugned in these cases is that made by the empowered officer of the Central Government on 30-7-1984. The declaration made in the case of the petitioner in Special Criminal Application No. 457 of 1984 records satisfaction that the petitioner 'smuggles and is likely to smuggle' falling within clause (a). In the case of the petitioners in Special Criminal Applications Nos. 428, 435, 455 and 456 of 1984 satisfaction recorded is that in the case of each of the petitioners he 'abets and is likely to abet the smuggling of goods'. That falls within clause (b) of Section 9(1). In the case of the petitioners in Special Criminal Applications Nos. 427 and 434 of 1984 satisfaction recorded under Section 9(1) is that each one of the petitioners 'engages and is likely to engage in transporting smuggled goods'. This falls within clause (c) of Section 9(1). The incidents on which the action is based are evidently those which took place on 12th and 13th of March, 1983.

3. To illustrate again we may also point to a second set of cases, namely Special Criminal Applications Nos. 459 and 468 of 1984 where the detention order is of the date 27-6-1984 and the declaration is of the date 28-7-1984. Such declaration is based on an incident of 26-2-1984. In Special Criminal Applications Nos. 440 and 441 of 1984 the detention order is of the date 29th June, 1984, the declaration of 30-7-1984 and the satisfaction is based on incidents of 21st and 27th March, 1984. We are referring to these dates only to indicate how far removed the incidents relied on are from the dates on which the detention order was passed and the declaration under Section 9(1) was made.

4. We may notice that Section 9(1) declaration which has the effect of giving a longer period for the Advisory Board to express its opinion and a longer period for the detention order speaks of satisfaction of one or other alternative situations mentioned in clauses (a), (b) and (c). In other words, the satisfaction may be that the detenu 'smuggles' or it may be that he 'is likely to smuggle'. Similarly the satisfaction may be that the detenu 'abets' or 'is likely to abet'. Coming to clause (c) the satisfaction is that the detenu 'engages' or 'is likely to engage' in transporting smuggled goods. It is not that the requirements in each of these cases are cumulative. Therefore it need not be shown that the detenu smuggles and is likely to smuggle. It is sufficient if the empowered officer is satisfied that the detenu smuggles or that he is likely to smuggle. Each one of such satisfactions will support the declaration. It may be that in a given case both the elements are present and therefore the satisfaction could be on both points, namely that the detenu smuggles and is likely to smuggle. In the cases before us the satisfaction is evidently on both. Briefly stated, the contention of the petitioners in these cases may be stated thus : Evidently the officer making the declaration did not have any material other than that relied on for the purpose of making the detention order under Section 3(1) of the COFEPOSA Act. That evidently related to incidents of a date anterior to the date of the order of detention/Though satisfaction called for to make the order of preventive detention may be based not upon any material contemporaneous with the date of detention such material would not be sufficient to sustain an order of declaration under the first part of Section 9(1)(a), (b) and (c). In other words, when the section speaks of satisfaction that the detenu 'smuggles', the detenu 'abets smuggling' or, the detenu 'engages in the transport of smuggled goods' the material which ought to be available for enabling the empowered officer to be satisfied is material which has relevance to the date of the declaration and not an earlier date. If the only material on which the empowered officer relies for the purpose of satisfaction in making a declaration that the detenu smuggles or abets or engages in the transport is that of a date anterior to the date of declaration such declaration would be bad, as the satisfaction would not be that the detenu smuggles or the detenu abets or the detenu engages in transport, but that the detenu had smuggled, that the detenu had abetted and the detenu had enagaged in the transport It is further argued that if the notification is found to be bad for the reason that the empowered officer cannot be said to have been validly satisfied of the first part of Section 9(1)(a), (b) or (c), irrespective of whether there was material to satisfy him that the detenu is likely to smuggle or is likely to abet or is likely to engage in the transport, the declaration must fail as a whole. Consequently in these cases where reliance is upon materials relating to incidents of an earlier date satisfaction under Section 9(1) would be on irrelevant material, material which has no nexus to the satisfaction and once that is shown irrespective of any other question the declaration must fail.

5. Having stated the case of the petitioners thus we proceed to state the possible answer to support the declaration the sustainability of which we will have to consider. Section 9(1), no doubt, calls for satisfaction that the detenu smuggles or abets or engages in transport of smuggled goods. It is not to be understood as satisfaction on materials showing that on the day the declaration is made the detenu is carrying on such activity. That would be a very unreasonable construction, a construction which may lead to anomalous, if not absurd results. That is because Section 9(1) contemplates a declaration to be made subsequent to the order of dentention. Inasmuch as the declaration could only be subsequent to the order of detention it is impossible to envisage a situation where the detenu is carrying on the activity of smuggling on the date of declaration or abetting or engaging himself in the transport on such date since before such date he would necessarily have been in detention and he could not be carrying on such activity during the period of detention. It may not even be that the materials available indicate that on the date of detention he is carrying on that activity, for there must necessarily be an interval of time between the date the facts relating to the activities of the detenu comes to the notice of the Central Government which orders detention and the decision taken for such detention. So the meaning to be given to the term 'smuggles' or 'abets' or 'engages' cannot be such as to restrict it to a continued activity on the date of the declaration or even on the earlier date of detention. In the cases here the incidents on the basis of which action has been taken which furnished the material for satisfaction are directly referable to the detention and that would be sufficient to attract the first part of Section 9(1)(a), (b) and (c). Alternatively, in these cases, it is not necessary for the empowered officer to be satisfied that the detenu smuggles or abets or engages and it would be sufficient if the officer is satisfied , that he is likely to smuggle, is likely to abet or is likely to engage in transport. Such satisfaction is an independent satisfaction and if such satisfaction is also recorded that would stand independently. Even if the petitioners' contention that the matter would not be justified with reference to Section 9(1) (a), (b) and (c) first part is sustainable the declarations would be justifiable under the latter part, namely satisfaction about the likelihood and that would be sufficient to sustain these declarations. We may mention here that the petitioners point out that this would run counter to the decision of the Supreme Court adverted to, namely that of striking down the entire declaration when once it was found that the declaration was bad in so far as the former part of Section 9(1)(a) was concerned.

6. We shall now proceed to examine the scope of the term 'smuggles' in Section 9(1)(a) of the Act. What we say with reference to 'smuggles' will equally well apply to 'abets' or 'engages in'. The contention stated by the petitioners to which we have adverted would necessitate the officer making the declaration to be satisfied on materials before him that on the date the declaration is made the activity of smuggling by the detenu continues. In other words, it is not sufficient if he is satisfied that at any time prior to the date of the declaration the detenu was carrying on the activity of smuggling, but that such activity continued up to the date of the declaration. That, according to the petitioners, is necessary because the satisfaction is that the detenu smuggles and if the satisfaction concerns his activity at any time anterior to the date of declaration that would only be a satisfaction that the detenu had smuggled and not that the detenu smuggles. In a statute which purports to curtail the liberty of a citizen and restricts his right guaranteed Under Article 21 of the Constitution a Court has necessarily to interpret the provision strictly and there would be no justification to read into such provision any relaxation of the standards required to be proved on the literal language of the provision. It is a well known rule of construction that it is not for the Court to make the law and the law should be applied even if the law does not accord with the notions of right and wrong of the Court. These are no doubt correct rules of interpretation. But here the situation is different. If the result of reading the section in that manner is to make the section unworkable or to make it anomalous to the extent of absurdity the Court would be justified in not giving undue importance to grammar. To quote the observation of Krishna Iyer, J. in Carem and Co. Ltd. v. Union of India (UOI) : [1976]1SCR379 :

No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule. Justice Frankfurter used words of practical wisdom when he observed Massachusetts S & Insurance Co. v. U.S. 1956 352 Under Section 128 at p. 138 :

There is no surer way to misread a document than to read it literally.

If a too literal adherence to the words of any provisions of law leads to absurdity or unreasonableness a Court will have to construe it in a manner not quite strictly grammatical vide Williams v. Evens (1676) 1 Ex. D. 277 referred to at page 87 of Craies on Statute Law (Seventh Edition). No doubt the English Courts have often sounded a note of caution about the rule of construction necessitated on account of absurdity of the result, but even so the need for the reading down and on occasions even doing a little violence to the language of a provision of statutes, where a literal construction would lead to anomalous results has been recognised in a series of cases. The commission of an offence 'in the vicinity of any prohibited place' was read to mean 'in or in the vicinity of the place in Adler v. George 1964 2 Q.B. 7 as a different construction would make it an offence if the act is committed in the vicinity of the prohibited place, but not in the prohibited place leading to anomalous results. The intention to produce unreasonable result is not to be imputed to the legislature vide Artemiou v. Procopiou 1966 1 p. B. 878. There is no need to multiply illustrations from decided cases. Reference has been made to such cases in 'Craies on Statute Law' at pages 87 to 89 and in 'Maxwell on the Interpretation of Statutes' Chapter 10 pages 199,200 and 210. As observed by Lord Reid in Luke v. Inland Revenue Commrs 1963 Appeal Cases 557 :

To achieve the obvious intention and produce a reasonable result we must do some violence to the words. This is not a new problem, though our standard of drafting is such that it rarely emerges. The general principle is well settled.

What Lord Reig said about the standard of drafting could not be said about the standard of drafting in this country as in evident from the plethora of case law which has arisen only because of defective drafting. Evidently the reason is obvious. Legislations here are so numerous and the amendments so frequent that there is very little time for deliberation for the legislature and less time for the draftsman for exhibiting craftsmanship, much, less imparting an artistic touch.

7. We have already indicated that a detenu cannot indulge in the continued activity of smuggling on the date of the declaration which is posterior to the actual detention. It could even be said that normally there cannot be material as to such continued activity on the date detention order is passed, for it is not opassed the day matters come to the notice of the authority who initiates action for detention. The process takes time. The Central Government acts through its numerous officers working at different places. They come to notice materials sufficient to initiate action through reports from such officers. Such materials are processed through the hierarchy of officers. On a responsible officer taking a decision that the material deserves to be acted upon and so must be brought to the notice of the Government he does so. The Government takes time to deliberate over it and pass the detention order. No doubt this process has to be quick and emergent as otherwise the detention will be on the basis of materials relating to a distant past making the detention process not relevant on the facts disclosed. Even if the action is expeditious it is bound to take some time and therefore it cannot be said that the Government is actually acting on the material related to the date of passing of the order of detention. In other words, even in a case where the Central Government acts promptly, as it should, the material available to it on which it bases the order of detention will not be material relating to the conduct of the detenu on the date of detention, but the (sic) of an anterior point of time, but material which will by its very nature indicate continued activity. Therefore, in no case could it be rightly said that the declaration under Section 9(1) must be based upon satisfaction of materials which relates to actual continued activity on the date of detention and even on the date of declaration. To construe so would be self-defeating, would be frustrating the intention of the Legislature and frustrating the operation of the detention process.

8. The materials which furnish the satisfaction of the Central Government or the empowered officer for a declaration under Section 9(1) that the detenu smuggles must be proximate. Such proximity is not to be determined on the basis of any tune limit. If the determination is based in some past event which is not the immediate cause for taking up the question of detention against the detenu it would not be proximate for satisfaction that the detenu smuggles though such material may under certain circumstances support the satisfaction that he is likely to smuggle. In other words, past events or incidents or material relating to past conduct which were not the immediate cause for taking up the case for detention may be operating in the mind of the Central Government or the empowered officer to satisfy that the detenu is likely to smuggle but it would not under all circumstances be sufficient to satisfy that he 'smuggles'. If the past acts or conducts are such that in the usual course one could reasonably presume on such material that the activity continues it would be different. If the detention is taken up on account of present prejudicial activity which would satisfy at that moment that the person concerned smuggles that would be sufficient satisfaction for the purpose of Section 9(1)(a) though between that point of time and that of passing of a detention order or later, making a declaration there is an interval of time. In other words, the term 'smuggles' need not, in the context of Section 9(1)(a), suggest that there are positive materials concerning smuggling operations on the date of the declaration under Section 9(1). If such acts were the proximate cause for taking up the case for detention or if the material would furnish indication of acts which in their very nature would be continuous it would be open to the Central Government or the empowered officer to be satisfied that the detenu smuggles. That, according to us, is the scope of the first part of Section 9(1)(a),(b) and (c). We will necessarily have to consider whether this interpretation put upon Section 9(1) does accord with the view expressed by the Supreme Court in Smt. Rekhaben Virendra Kapadia v. State of Gujarat : 1979CriLJ212 .

9. In the case before the Supreme Court an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 7th February, 1977 directing that it was necessary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods. Pursuant to this the detenu was detained in the Ahmedabad Central Prison after he surrendered on 4th July. 1977. On 2nd August, 1977 a declaration under Section 9 of the COFEPOSA Act was passed by the 4th respondent in that case stating that he was satisfied that the detenu engages and is likely to engage in transporting smuggled goods. One of the questions which the High Court had to consider was whether there was reasonable nexus between the prejudicial activity and the purpose of detention. It was argued that inasmuch as the events treated as evidence of prejudicial activities on the part of the detenu were those of 1973 and 1974, reasonable nexus had been snapped by the timelag and therefore the order of detention was without the genuine satisfaction of the detaining authority. Referring to such time-lag the Court noticed that whether it would be sufficient to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of the case. The sufficiency of the satisfaction would necessarily depend upon whether the material relied on indicating prejudicial activity on the part of the detenu would be sufficient to assume that the detenu is likely to continue in his activities in the future that being the object of detention. Referring to the case of the detenu in that case who was a driver of a well-known smuggler on a pay of Rs. 5,000/- per mensem the Court felt that this might satisfy the authority that he was likely to continue in his activities in the future and as such would justify his detention. Reference was then made to the ratio in the earlier case Gora v. State of West Bengal : 1975CriLJ429 that :

the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.

The rule was stated thus :

The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. If the detaining authority in this case had come to the conclusion taking into account the past activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities.

It is no doubt true that reference in the above said observations was to the satisfaction for the purpose of passing the order of detention. That would be satisfaction about the likelihood of the detenu acting in a prejudicial way in the future. Having stated this they considered the validity of the declaration under Section 9(1) in that case. In regard to that the Court said :

There was no material before the 4th respondent for coming to the conclusion that the detenu 'engages' in transporting smuggled goods. To this extent we have to accept the contention of the learned Counsel for the appellant that there is no material for coming to the conclusion that the detenu was 'engaging' himself in the unlawful activities.

Evidently in that case the material available only referred to past activities of 1973 and 1974 and therefore on such material alone the Court felt that in 1977 when the declaration was made the authority concerned could not be satisfied that the detenu 'engages' himself in unlawful activities. The activities of 1973 and 1974 were not activities constituting the proximate or immediate cause for taking up the case for detention. Material evidencing past conduct was relied on by the authority to assume likelihood of prejudicial conduct in the future. The case is dissimilar to the one before us where the very initiation of action was on the basis of activities which were detected and it was not as if for taking up the detention some past conduct was relied on. It was the present context contemporaneous with taking up action that caused initiation of proposal for detention, but that action culminated in a detention order only some time later. Though in the case before the Supreme Court it could not have been said that the detenu engages himself in transporting smuggled goods, in the case before us it could be said that he smuggles, for at the time action was initiated, which action ultimately culminated in the detention order, reference was made to a contemporaneous event, an event which prompted such action to be forthwith taken. Reference here was not to some past conduct of the detenu. Therefore we would say that this is a case where satisfaction under Section 9(1)(a) first part would be justified and this case would not be covered by the ratio of the decision in Rekhaben's case : 1979CriLJ212 .

10. Now we come to the another part of the question which we are called upon to answer in this reference. We have indicated ' earlier that the satisfaction in these cases is on two points, namely that the detenu smuggles and the detenu is likely to smuggle (so is the case with satisfactions falling under clauses (b) and (c) of Section 9(1)). We have also indicated that these are two different satisfactions contemplated in the Act and any one of them would sustain the declaration. It may be that the materials before the authority to be so satisfied were such as to justify only one satisfaction, namely that the detenu 'smuggles' or it may be that they were such as to justify the other satisfaction, namely that he 'is likely to smuggle'. The likelihood of a prejudicial activity such as smuggling in the future is to be predicated upon an assessment of the nature of the past conduct. If the past conduct is such as would not lead to an assumption that the person who is responsible for such past prejudicial activity is likely to indulge in such conduct in the future past conduct by itself may not be relevant. A man who commits a crime for instance, need not repeat the same crime. He might have committed the crime for various reasons such as emotional imbalance of the moment and there would be no justification in all cases, without anything more, to assume that he is likely to commit such crime again. There are other crimes which a person may indulge in, not because of any momentary emotional imbalance or such other reasons, but because of greed, because of the desire to become quick rich. Operations such as smuggling, hoarding, blackmarketirig, illicit dealing in foreign exchange and other activities of a similar character are generally undertaken for economic advantage, in that process exploiting the economic order of the country. Carried on in a reasonably noticeable scale any person could be assumed to do it for undue economic advantage for himself and in such cases evidence of past activity may have relevance in the matter of satisfaction as to likelihood of persisting in such activity in the future. It is difficult to define as a formula the evidence of what activities of the past would lead to an assumption about likelihood of such activity in future. That would be a question of fact. It is worthwhile to notice that in the decision of the Supreme Court to which we have adverted the past acts of engaging in transport of smuggled goods have been found to be sufficient to satisfy assumption of prejudicial activity in the future. In the cases before us, apart from any satisfaction on the earlier part, namely 'smuggles' there is also material to satisfy that the detenu is lively to smuggle and that satisfaction, as we have said, is independent and may support even if satisfaction under the earlier part fails. But then it is argued that the satisfaction of the authority is subjective satisfaction and therefore if it should fail for the reason that on the materials it cannot be said that the detenu 'smuggles' the declaration would fail as a whole. The petitioners in these cases submit that if the satisfaction is reached on several grounds and one of the grounds is found to be unsustainable the satisfaction must, as a whole fail. No doubt, if the subjective satisfaction had been reached on several grounds one of which is unsustainable such satisfaction cannot be sustained with reference to the other grounds. But that is not the case here : There are two independent satisfactions contemplated under Section 9(1) and any one of them can sustain the declaration. It is not a case of different grounds being urged to sustain one and the same satisfaction. This ; is not a question of different aspects of a question arising for notice. The two satisfactions being independent the failure of one satisfaction would not necessarily result in the failure of the other.

11. It is said that it is not competent for this Court to hold as above for the simple reason that in Rekhaben's case : 1979CriLJ212 the Supreme Court, finding that there was no material to satisfy the empowering officer that the detenu engages in the transport of goods, despite the satisfaction on the second part of Section 9(1)(c) held the declaration to be bad. We have only to advert to the observation of the Supreme Court in Shama Rao v. Union Territory, Pondicherry : [1967]2SCR650 that only the ratio of a decision is binding and not the conclusion. The Court in that case said :

It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.

The question whether the two satisfactions are independent and whether on the failure of one satisfaction the other satisfaction will nevertheless support the declaration under Section 9(1) was not in issue in the case before the Supreme Court and the Supreme Court has not spoken on it. No doubt, the conclusion in that case was that the declaration was not valid, but that is a conclusion on & consideration of the earlier part of Section 9(1) only. In these circumstances as we held the view that there are two independent satisfactions contemplated the mere fact that one of the satisfactions fail need not result in the failure of the other satisfaction and the declaration would nevertheless be good.

12. What we have said in regard to satisfaction under clause (a) of Section 9(1) would apply with equal force to satisfaction under clauses (b) and (c) of Section 9(1) and therefore we need not discuss that separately.

Having answered the question as above we leave it to the Division Bench to determine the validity of Section 9(1) declaration in these cases in the light of what we have said here. The cases will now be sent to the Division Bench for disposal of the Special Criminal Applications.


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