1 3233.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3233 OF 2010 Suresh Kumar U.Jain @ Sanjay Srinath Rana, Age about 44 years, An Indian Inhabitant, Residing at Flat No.101, Behind State Bank of Bikaner & Jaipur, Opp.District Collector Office, Kalyan Nagar, District Jalore, State Rajasthan. ...Petitioner Versus 1. The State of Maharashtra, through the Secretary to the Government of Maharashtra. 2. The Principal Secretary to the Government of Maharashtra, Home Department, Mumbai. 3. The Union of India, (Through Officers of D.R.I.), Marine Lines, Mumbai. ...Respondents ...... Mrs.Aisha Zubair Ansari for Petitioner. Mr.D.P.Adsule, A.P.P. for State. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 31, 2011. ORAL JUDGMENT (Per A.M.Khanwilkar, J.) : 1. By this Petition under Article 226 of the Constitution of India, the 2 3233.10 validity of detention order No.PSA-1206/2/SPL-3(A) dated 21st August, 2006 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as `COFEPOSA Act’) against the petitioner by the respondent No.2 has been assailed. Admittedly, the petitioner has not been arrested pursuant to the impugned detention order so far. In that sense, this Petition is filed to question the validity of the detention order at pre-execution stage. The legal position as to the grounds on which Petition to challenge the detention order at pre-execution stage can be entertained has been recently answered by the Division Bench of this Court in the case of Ajay Bajaj v. The State of Maharashtra & Ors. in Criminal Writ Petition No.103 of 2009 along with other connected cases decided on 5th January, 2011 to which one of us (A.M.Khanwilkar, J.) was a member. The Counsel appearing for the present petitioner had occasion to appear for two writ petitioners in the said group of cases decided by this Court on 5th January, 2011. Keeping in mind the dictum of this Court in the said decision, the Counsel for the petitioner has confined her argument to the following effect. 2. According to her, the impugned decision can be legitimately challenged by the petitioner since it is covered by clause (iii) specified by 3 3233.10 the Apex Court in the case of Additional Secretary to the Government of India & Ors. v. Smt.Alka Subhash Gadia & Anr. reported in 1992 SCC (Cri.) 301 = 1992 Supp.(1) SCC 496. In other words, the challenge to the impugned detention order is on the argument that the same has been passed for a wrong purpose. This argument has been pressed into service on the assertion that the order passed by the Detaining Authority mentions that the petitioner is required to be detained with a view to prevent him in future from smuggling goods. Whereas, the grounds on which the detention of the petitioner is contemplated, refer to the activities of the petitioner which can be classified, at best, as abetment of smuggling activity and not smuggling itself. According to the petitioner, therefore, it is a clear case of detention order passed against the petitioner for a wrong purpose. Besides, the detention order suffers from the vice of non-application of mind. In support of this submission, reliance is placed on the Judgments of this Court as well as of the Supreme Court namely; unreported decision in the case of Rajaram Singh v. The State of Maharashtra & Ors. in Criminal Writ Petition No.529 of 2002 decided on 11th December, 2002 (paragraphs 12 and 13 thereof), Mr.Prithvi Sovern Kuntal v. The State of Maharashtra & Ors. reported in 2001 All MR (Cri.) 1163 (paragraphs 6 to 9 and 13 thereof), unreported decision of this Court in the case of 4 3233.10 Babulal Dhanaji Makwana v. The State of Maharashtra in Criminal Writ Petition No.1051 of 2002 decided on 8th April, 2003 (paragraphs 12 and 13 thereof) and lastly, the decision of the Apex Court in the case of Narendra Purshotam Umrao v. B.B.Gujral & Ors. reported in AIR 1979 SC 420. 3. Per contra, the learned A.P.P. appearing for the respondents has contended that this Court cannot look into the grounds of detention at the pre-execution stage. He further submits that the submission advanced by the petitioner is based on incorrect understanding of grounds of detention. Inasmuch as the grounds of detention refer to the activities of the Petitioner which are overlapping both in respect of smuggling as well as abetment, as is evident from the subjective satisfaction recorded by the Detaining Authority. The Detaining Authority has taken overall view of the matter to conclude that the activities of the petitioner were in the nature of smuggling of goods covered under Section 2(e) of the Act. According to the learned A.P.P., therefore, the Petition is devoid of merits. The learned A.P.P. has relied on the decision of our High Court in the case of Smt.Sharifa Abubaker Zariwala v. The Union of India & Ors. reported in 1997 All MR (Cri.) 528, wherein, the Court rejected the challenge on 5 3233.10 the finding that the activities referred to in the grounds of detention were overlapping. 4. Having considered the rival submissions, as aforesaid, the scope of interference in exercise of writ jurisdiction under Article 226 of the Constitution of India at the pre-execution stage is circumscribed as has been expounded by the Apex Court in Gadia’s case (supra). The limited grievance of the petitioner, therefore, is that the impugned detention order suffers from the vice of non-application of mind and is covered by the ground specified in Clause (iii) of the said decision, i.e., passed for a wrong purpose. The argument further proceeds that the order refers to the fact that the petitioner was allegedly involved in the activities of smuggling whereas, the grounds refer to the activities which are primarily one of abetment of smuggling and not smuggling itself. Insofar as this contention is concerned, we may agree with the petitioner that if the petitioner is able to demonstrate the above factual position, it may be a case bordering on the contingency specified by the Apex Court-as it would be a case of detention order passed for a wrong purpose. The real question, therefore, is: whether the grounds of detention refer to the activities of the petitioner which are 6 3233.10 only in the nature of abetment of smuggling as is contended by the petitioner? 5. In response to this submission, the learned A.P.P. has invited our attention to the relevant portions from the grounds of detention, in particular, paragraph 26 onwards up to paragraph 28 thereof, which, refer to the subjective satisfaction recorded by the Detaining Authority. It also refer to the material disclosing involvement of the petitioner in not only abetting the smuggling of goods but also being part of the organized syndicate indulging in smuggling activities. Relevant extract from the said grounds, in particular, paragraphs 26 to 28 reads thus : “26. As evident from the facts of the case and statements recorded during the course of investigation, you had actively involved yourself in an attempt to smuggle Red Sanders out of India allegedly as per the directions of one Shri Raju Koyande who had planned to smuggle around 100 Mts of Red Sanders out of India to Hong Kong, Sanghai and Singapore over a period of two months. You had knowingly connived with Shri Raju Koyande by agreeing to arrange for booking of containers, to smuggle Red Sanders out of India, from the shipping company, customs clearance for the said containers and to get the Bill of Lading released from the shipping company. It is apparent from your submissions that you were fully aware of the attempted export of Red Sanders. You were aware that the said cargo to be exported were prohibited from export under the Customs Act, 62 and other allied Acts. You had knowingly engaged yourself in arranging for export related clearance of said goods through JNPT port. You arranged to carry out all the necessary formalities for monetary gains. 7 3233.10 27. You had admitted that you were fully aware of the nefarious activity to be carried out at the behest of Shri Raju Koyande and you had agreed to abet the said smuggling activity for a monetary consideration of Rs.10/- per kg of red sanders to be exported. Investigations have revealed that you had also obtained a passport under a false name and identity. You had given your name as Mr.Sanjay” to various persons in order to hide your identity and therefore perpetuate this smuggling activity. You had also confessed that you had used the false name as Mr.Sanjay in order to avoid being identified, if detected in any illegal activity. The large quantity of Red Sanders planned to be smuggled out of India and the well planned manner in which you executed this attempt to smuggle the container out of India indicates that you are a part of a well organised syndicate indulged in similar smuggling activities. 28. Your antecedents clearly indicate that you are habitual offender and continuously involved in nefarious activities related to smuggling. The fact that you were arrested in 2002 in a case relating to diversion of imported duty free fabrics has not deterred you from continuing in smuggling activities. Further, you had been detained under COFEPOSA in the past and yet you had continued with your involvement in smuggling activities, which is confirmed by this planned attempt to export Red Sanders, which is a prohibited item. It is pertinent to note that you had also not disclosed the completed nexus and details of other members involved in this planned effort to smuggle Red Sanders. The fact that you had obtained a Passport with fake name and identity also manifests that you had a pre-planned agenda and has deliberately created a dual identity to avoid detention by the investigating agencies. By detaining you, it will help in negating your live link with other members of the well-organized syndicate. You had been engaging yourself in smuggling activity as defined in section 2(39) of the Customs Act, 1962 and as adopted in COFEPOSA Act, 1974 via section 2(e) thereof. In order to prevent the smuggling of goods considering your high potentiality and propensity to indulge in smuggling activities and your present role of abetting in the said attempt to smuggle Red Sanders out of India, it appears necessary that you be detained under COFEPOSA Act, 1974.” 6. Considering the above, it is not possible to accept the plea canvassed by the petitioner that the grounds of detention merely make reference to the activities which, at best, would attract abetment of smuggling of goods and 8 3233.10 not of smuggling itself. However, the grounds which have been produced along with Writ Petition, plainly refer to the involvement of the petitioner in activities of smuggling of goods. The grounds are overlapping as it refer to the involvement of the petitioner in both the activities of abetment as well as smuggling of goods itself. This Court in the case of Sharifa Abubaker Zariwala (supra), rejected similar plea on the finding that the grounds referred to were overlapping activities of abetment as well as smuggling of goods. Thus understood, it is not open for us to delve into any other aspect of the matter but to hold that the grievance of the petitioner that the impugned detention order has been passed for a wrong purpose, is devoid of merits. 7. To get over this position, Counsel for the petitioner was at pains to persuade us to wade through the entire grounds of detention. According to her, the dominant activities attributed to the petitioner referred to in the grounds of detention are only of abetment of smuggling of goods and not of smuggling itself. We are afraid, at this stage, namely, at the pre-execution stage, it is not open for us to examine this contention. For, this contention may be available to the petitioner post-execution of the detention order. At this stage, the Court is called upon to only take a prima facie view on the 9 3233.10 question whether the order of detention and the grounds on which same is issued are in consonance. If the plea canvassed by the petitioner were to be accepted, perhaps, it would have been possible for us to overturn the impugned detention order on the reasoning that the same was issued for a wrong purpose. For, that is one of the contingency specified in Gadia’s case (supra). 8. As aforesaid, the petitioner would be free to agitate the argument regarding non-application of mind of the Detaining Authority having been influenced by the activities referred to in the grounds which are pre- dominantly one of abetment and not of smuggling of goods itself. That aspect can be considered on its own merits as and when the petitioner has occasion to challenge the order of detention post-execution stage. Suffice it to observe that the argument of the petitioner that the basis on which the impugned order of detention is passed, is for a wrong purpose, cannot be countenanced. We are in agreement with the argument of the learned A.P.P. that all the decisions referred to by the petitioner deal with post-execution stage and hence, would be of no avail to the petitioner in this proceedings. 10 3233.10 9. Insofar as the argument of the learned A.P.P. that the Court cannot look into the grounds of detention though the same are placed on record by the petitioner in the present Petition, at pre-execution stage, in the facts of the present case, this objection is unavailable to the respondents as the respondents themselves have furnished copy of the grounds and the detention order to the petitioner. 10. In this case, we have come across a very peculiar situation which we need to place on record. We were intrigued on account of the order of detention as well as the grounds of detention being appended to the Writ Petition even at pre-execution stage. When inquired with the learned A.P.P., we were informed that the same was served on the daughter of the petitioner at his place of residence in Rajasthan by the Head Constable, who was deputed to execute the order of detention. The execution of order of detention means the detenue is taken in custody and served with the order and the grounds. It is not to make him aware about the grounds of detention and the order of detention in advance, so that, he can approach the Court for quashing of the detention order. When we expressed our displeasure about the manner in which the detention order as well as the 11 3233.10 grounds of detention have been made available to the petitioner, we were assured by the respondents through learned A.P.P. that the matter is being inquired into and the concerned Head Constable and/or any other Officer responsible for the situation, would be proceeded in accordance with law. In the circumstances, we refrain from observing anything further in that behalf. 11. Notably, similar situation obtained even in the group of cases decided by this Court on the earlier occasion being Writ Petition No.103 of 2009 and companion matters referred to earlier. Even in that case, we expressed our displeasure for supplying the order of detention as well as grounds of detention to the detenue at pre-execution stage. In that case, we observed that at least in future such serious lapse should not be repeated. However, we have once again noticed the same feature which enables the detenue to challenge the order of detention at pre-execution stage. 12. We hope and trust that the Secretary, Home Department, State of Maharashtra will examine this aspect of the matter and considering the gravity thereof, issue appropriate instructions as may be advised. 12 3233.10 13. In view of the above, the Petition fails being devoid of merits. The same is rejected with liberty to the petitioner to agitate other contentions available to the petitioner post-execution of the detention order. 14. Copy of the order be forwarded to the Secretary, Home Department for information and necessary action. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)