VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION No. 4 OF 2008 Smt. Charandip Kaur Inderjeet ) Singh Chhaddha, Age 38 years, ) residing at C-117, Ashok Vihar, ) Phase-I, New Delhi 110 052. ) Petitioner Vs. 1. The State of Maharashtra ) Through thhe Additional Chief ) Secretary to the Government of) of Maharashtra, Home Department (Special), Mantralaya, ) Mumbai-400 032. ) ) 2. Ms. Anna Dani, ) The Principal Secretary to the) Government of Maharashtra, ) Mantralaya, Mumbai 400 032. ) 3. The Superintendent of Prison, ) The Mumbai Central Prison, ) Arthur Road, Mumbai. ) ) 4. The Superintendent of Prison, ) Nasik Road Central Prison, ) Nasik Road, Maharashtra. ) Respondents Mrs. A.M. Z. Ansari, for Petitioner. Mr. D. S. Mhaispurkar, APP for the Respondent. CORAM : BILAL NAZKI, AND A. P. BHANGALE, JJ. DATE : APRIL 29, 2008. ORAL JUDGMENT [PER : SHRI BILAL NAZKI, J.] . This petition has been filed by the wife of the detenue, after he was ordered to be detained by - 2 - the detaining authority in terms of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act"), on 15th November 2007; Detention order was served on 24th of November 2007 and conveyed the notice. Counter has been filed by the detaining authority. The foremost ground for the attack of the order of detention by the learned counsel for the petitioner was that in terms of section 3 of COFEPOSA Act there are various categories of persons who can be detained in terms of the said Act and these categories includes- (i) Smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. 2. The learned counsel for the petitioner submits that a person can engage himself in such activities or in some of such activities. She submitted that under section 3(1)(iii) of said Act, a person can be prevented from engaging in - 3 - transporting or concealing or keeping smuggled goods by detaining him under the provisions of the Act. She further states that the person who is detained under section 3(1)(iii) can be a person who does all the three actvities, namely transporting, concealing or keeping smuggled goods. He can also engage in two or three activities or any one such activity. Where such a pserson is involved in one, two or all the three activities, he can be detained under section 3(1)(iii), but the detaining authourity should be conscious of the fact that whether a person whom he detains was engaged in transporting or concealing or keeping smuggled goods or he was engaging himself for all three activities. In this context, she refers to the order of detention passed by the detaining authority. While recording her satisfaction to detain the detenue the detaining authority said that, "with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods, it is necessary to make the following order". 3. The learned counsel for the petitioner submits that it is a case of clear non-application of mind where the detaining authority was not even aware whether the detenue was transporting, concealing or keeping smuggled goods. Learned - 4 - counsel for petitioner submits that detaining authority picked up these lines from section 3(1)(iii) of the Act without applying her mind to the material before her to come to the conclusion whether the detenue was really transporting or selling or keeping smuggled goods or was continuing in all such activities. If detenue was doing all such activities, then the the disjunctive word "or" would not have been used. We have no doubt in our mind that this is a case of non application of mind. It is not stated only in detention order but also in the grounds of detention and in paragraph 37 same thing was repeated. Learned APP submits that in the background of this case, the facts and the material available before the detaining authority would disclose that the detenue was engaging himself in transporting of smuggled goods and material would show that his activity of transporting the smuggled goods was known to the detaining authority when she passed the order. The law is settled that when detaining authority arrives to his subjective satisfaction, he must apply his mind to the facts and material before him. Particularly to the material on the basis of which he states that a person needs to be detained. The detention laws are very sad, people are detained and deprived of their right of liberty without charges & trial, therefore, - 5 - keeping in view that the mandate of the Article 21 and 22 of the Constitution of India, the courts have construed the detention laws very strictly so as to ensure that the safe good remedies under Article 22 are not diluted." The argument made at the Bar is covered by three judgments of the Supreme Court- Kishori Kishori Kishori Mohan Bera Vs. State of West Bengal, AIR Mohan Bera Vs. State of West Bengal, AIR Mohan Bera Vs. State of West Bengal, AIR 1972 1972 1972 SC 1749. SC 1749. SC 1749. As the expressions "acts prejudicial to the maintenance of public order" and acts prejudicial to the security of the State have not been seperately defined but have been put together in the same definition with the disjunctive "or" in between them. It is further observed in paragraph 10 that- "it is, therefore, clear that before the authority invokes its power under S. 3, it must be satisfied and must expressly say in its order that the alleged activities of the person concerned were such that they endangered or were likely to endanger either the security of the State or public order or both. If the activities are of such potentially or impact so as to affect both of them, the conjunctive "and" and not disjunctive "or" would be the appropriate word. There is therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made." - 6 - 4. Second judgment is in the case of Akshoy Akshoy Akshoy Konai Konai Konai Vs. State of West Bengal [AIR 1973 Supreme Vs. State of West Bengal [AIR 1973 Supreme Vs. State of West Bengal [AIR 1973 Supreme Court Court Court 300] 300] 300]. In paragraph 4 the Supreme Court relied on decision in Kishori Mohan V. The State of West Bengal [AIR 1972 SC 1749] on the same issue. Third judgment is in Jagannath Misra Vs. State of Orissa Jagannath Misra Vs. State of Orissa Jagannath Misra Vs. State of Orissa [AIR [AIR [AIR 1966 1966 1966 Supreme Court 1140]. Supreme Court 1140]. Supreme Court 1140]. In paragraph 5 it is observed that "There is in our opinion force in this contention on behalf of the petitioner. The order of detention under R. 30(1)(b) of the Rules deprives a citizen of this country of his personal liberty and in view of the suspension of some of the fundamental rights by the President on account of the emergency, a citizen has a very limited opportunity of challenging an order of detention properly passed under the Rules. It seems to us therefore, necessary where detention is made under the Rules that the authority ordering detention should act with the full sense of responsibility keeping in mind on the one hand the interests of the country in the present emergency and on the other hand, the importance of the liberty of the citizen in a democratic society. That this is so is also emphasized by S. 44 of the Act (Defence of India Act, 1962) which lays down that "any authority or person acting in pursuance of this Act shall - 7 - interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonance with the purpose of ensuring the public safety and interest and the defence of India and civic defence". In view of this specific provision in the Act, it is incumbent upon the authority which is passing an order under R. 30(1)(b) of the Rules taking away the liberty of a citizen of this country that it should act with due care and caution and see 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 it had acted with all due care and caution and with the sense of responsibility necessary when a citizen is deprived of his liberty without trial. We have therefore, to see whether in the present case the authority concerned has acted in this manner or not. If it has not so acted and if it appears that it did not apply its mind properly before making the order of detention. The order in question would not be an order under the Rules and the person detained would be entitled to release." 5. The learned public prosecutor relied on the decision in "Ananta Mukhi alias Ananta Hari Vs. The State of WEst Bengal [(1972)1 Supreme Court Cases - 8 - 580]. This judgment was on the question whether detaining authority was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in manner prejudicial to the security of the State or the maintenance of public order. In paragraph 30 of the said judgment the Supreme Court observed that "it would follow from the above that though all activities prejudicial to the security of the State and those which are prejudicial to the maintenance of the public order are not identical, because of close nexus between maintenance of public order and security of State, there is bound to be some overlapping. As the expressions "acts prejudicial to the maintenance of public order" and "acts prejudicial to the security of the State" have not been seperately defined but have been put together in the same definition with the disjunctive "or" in between them, the use of the word "or" in the detention order would not, in our opinion, adversely affect the said order as may justify the quashing of that order. 6. This judgment was considered by the Supreme Court in the case of Kishori Mohan Bera, refererred to hereinabove. Besides that the "acts prejudicial to the maintenance of public order" and acts - 9 - prejudicial to the security of the State" may be overlapping and if both acts are referred in the detention order, that may not be a case of non application of mind but whereas in the present case, we are concerned with the words "transporting, concealing, keeping the smuggled goods. Such words can never be said to be overlapping. We find that this order of detention. is result of non-application of mind and is liable to be quashed. In the circumstances, the impugned order of detention of Shri Inderjeet Singh Chhaddha is hereby quashed and set aside and he is set at liberty, if not needed in any other case. Sd/- [ BILAL NAZKI, J. ] Sd/- [ A. P.BHANGALE, J.]