AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.253 OF 2005 Hajra Ikram Chand ) 35/B, Jubilee Bldg., 2nd floor, ) Sankli Street, Byculla, Mumbai ) - 400 008. ) ... Petitioner (Wife of Detenu) Versus 1. The State of Maharashtra, ) Through the Secretary to the ) Govt. of Maharashtra, Home ) Department, Mantralaya, ) Mumbai - 400 032. ) 2. Neela Satyanarayana, ) The Principal Secretary to ) the Govt. of Maharashtra, ) Home Department (Appeals and ) Security), and Detaining ) Authority, Mantralaya,Mumbai.) 3. The Superintendent of Prison,) The Mumbai Central Prison, ) Arthur Road, Mumbai. ) 4. The Superintendent of Prison,) Nasik Road Central Prison, ) Nasik. ) ... Respondents Mr. Shirish Gupte, senior counsel with Mr. Maqsood Khan for the petitioner. Mr. D.S. Mhaispurkar, A.P.P. for the respondents-State. CORAM: CORAM: CORAM: SMT. RANJANA DESAI & SMT. RANJANA DESAI & SMT. RANJANA DESAI & D.B. D.B. D.B. BHOSALE, JJ. BHOSALE, JJ. BHOSALE, JJ. DATED: DATED: DATED: 13TH JUNE, 2005. 13TH JUNE, 2005. 13TH JUNE, 2005. ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. In this petition filed under Article 226 of the Constitution of India, the petitioner who is the wife of one Ikram Nisar Chand (for convenience, "the detenu"), : 2 : has challenged the order of detention dated 6/1/2005 issued by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai - 400 032, in exercise of powers conferred on him by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "the COFEPOSA") with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. 2. The order of detention, grounds of detention and material in support thereof were served on the detenu on 6/1/2005. 3. From the grounds of detention, it appears that on 5/6/2004, officers of Air Intelligence Unit, C.S. International Airport, Sahar Mumbai, on suspicion, intercepted the detenu, holder of Indian Passport issued at Dubai on his arrival from Dubai by flight EK 504 and after the detenu had cleared himself through walk through green channel. On being asked by the AIU officers as to whether he was carrying any dutiable goods, he replied that he was carrying only one mobile phone. Preliminary investigation on scrutiny of the detenu’s passport revealed that he was a frequent visitor and had made 19 trips from January 2004 till 5/6/2004, all for short duration for stay abroad. Search of the detenu in person : 3 : and baggage in the presence of independent witnesses resulted in the recovery of thirteen costly wrist watches of Cartier and Jaecar Le Coultre make and two mobile phones collectively provisionally valued at Rs.30,82,000/- CIF and Rs.61,44,000/- LMV. The watches were found cleverly concealed inside the socks worn by the detenu, his coat pockets and tied to his wrists covered by his coat sleeves. On being asked in the presence of panchas, he stated that the said goods were given to him by one person in Dubai to be handed over to various persons in Mumbai and that the wrist watches were concealed on his person as per the direction of the said person in Dubai to avoid detection by Customs. The watches and mobile phones were seized under a panchnama in the reasonable belief that the same were smuggled into India and, hence, liable to confiscation under the provisions of the Customs Act, 1962. The grounds of detention indicate that the detenu did not co-operate with the investigating agency and throughout gave evasive answers. We shall advert to his statements a little later. Suffice it to say that on the basis of the statements of the detenu recorded under section 108 of the Customs Act and other attendant circumstances, the detaining authority was satisfied that it was necessary to detain the detenu under the COFEPOSA Act with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. In the : 4 : circumstances, the instant order of detention came to be issued. 4. We have heard, at considerable length, Mr. Gupte, the learned counsel appearing for the petitioner. Mr. Gupte contended that the order of detention indicates total non application of mind on the part of the detaining authority. He submitted that the activities mentioned in the order of detention fall under section 3(1)(iii) and section 3(1)(iv) of the COFEPOSA Act. He submitted that the said two heads of detention cannot be invoked, at a time, against the same person, because a person cannot indulge in transporting or concealing or keeping smuggled goods and at the same time indulge in dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The learned counsel urged that, in any event, if it is assumed that the detenu has brought the mobile phones and the wrist watches from abroad, that activity would only fall under section 3(1)(i) of the COFEPOSA Act i.e. smuggling of goods. The detaining authority, therefore, erred in issuing the order of detention under section 3(1)(iii) and section 3(1)(iv) of the COFEPOSA Act and on that ground, the order of detention must be set aside. 5. In this connection, the learned counsel also drew our attention to paragraph 17 of the grounds of detention where the detaining authority has stated as follows: : 5 : "Thus from the above mentioned facts and circumstances, it is evident that your activities amount to smuggling of goods as defined in section 2(39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 viz. section 2(e) thereof as their acts of commission and omission have rendered the goods involved liable to confiscation under Section 135 of the Customs Act, 1962." 6. The learned counsel urged that the detaining authority herself has described the activities of the detenu as amounting to smuggling of goods. Therefore, the order issued under section 3(1)(iii) and section 3(1)(iv) is clearly bad in law. The learned counsel also drew our attention to the affidavit filed by the detaining authority. Drawing our attention to paragraph 6 of the affidavit, the learned counsel urged that the detaining authority has denied that the act of the detenu in bringing the mobile phones and wrist watches from abroad would fall under the head 3(1)(i) of the COFEPOSA Act i.e. smuggling of goods. The learned counsel submitted that this averment in the affidavit in reply is clearly contrary to paragraph 17 of the grounds of detention and this indicates that the detaining authority was totally confused when she issued the detention order and, therefore, the order of detention must be set aside. : 6 : 7. We are unable to accept this submission of Mr. Gupte. It appears from the grounds of detention, the affidavit in reply and the material in support of the grounds of detention that the detenu had made 19 trips abroad from January 2004 till 5/6/2004. All those trips were for short duration. The watches recovered from the detenu were found cleverly concealed on his person. In his statement recorded on 15/6/2004 under section 108 of the Customs Act, the detenu has stated that he wanted to take the goods to Singapore. His another statement came to be recorded on 29/6/2004 wherein the detenu has stated that he was doing the business of import and export at Dubai. He also stated that he was sending the money through banking channel. Thereafter, his statement was recorded on 30/6/2004 wherein he has stated that he was working as a representative of Khalba Computers in Dubai on a monthly salary of 5500 Dirhams and his company has paid for the air fair in cash for the 19 trips he has made to India in the year 2004. In his further statement recorded on 12/7/2004, the detenu has stated that he used to go to different countries for delivering the watches to the clients of his employer and he used to keep such watches at Dubai Customs and pick them for delivery while passing through Dubai and he also agreed to produce the purchase bills for the seized watches along with the price list of the manufacturers. On 13/7/2004, in his further statement, he has stated that he did not know the price of the seized phones. He did not give the name of his relative who was travelling with him from Dubai to : 7 : Mumbai on the day of the seizure. On 19/7/2004, the detenu gave name of his co-passenger relative as Abdulla but he did not give his address and refused to give further details about the said co-passenger. It is apparent from the above that the detenu could not satisfactorily explain how the undeclared goods were found with him and from where they came. His statements are contradictory and evasive. His activities which are clearly evident from the statements, the gist of which we have quoted hereinabove, justify the passing of the order of detention with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. There can be no doubt that the detenu had transported, kept and concealed smuggled goods. The act of the detenu in handing over the watches to the respective persons amounts to dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. 8. The contention that in the grounds of detention, the detaining authority has also stated that the activities of the detenu amount to smuggling of goods and this indicates non application of mind, must also be rejected. It is necessary to see in what context the detaining authority has said so. The detaining authority has referred to section 2(39) of the Customs Act and as adopted in the COFEPOSA Act i.e. section 2(e) thereof. : 8 : The detaining authority has also referred to section 135 of the Customs Act. Section 2(e) of the COFEPOSA Act reads as under: "2. Definitions.- In this Act, unless the context otherwise requires - (a) x x x (b) x x x (c) x x x (d) x x x (e) "smuggling" has the same meaning as in clause (39) of section 2 of the Customs Act, 1962 (52 of 1962), and all its grammatical variations and cognate expressions shall be construed accordingly." 9. Section 2(39) of the Customs Act defines smuggling of goods, which reads as under: "2. Definition. - In this Act, unless the context otherwise requires, x x x : 9 : (39) "smuggling", in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113". 10. There can hardly be any doubt that the goods recovered from the detenu were liable to confiscation. It is against this background and after referring to section 2(39) of the Customs Act and 2(e) of the COFEPOSA Act, that the detaining authority has stated that the activities of the detenu amount to smuggling of goods. This averment is broadly made. No inference can be drawn from this averment that the detention order was issued under section 3(1)(i) and not under section 3(1)(iii) and (iv). This is further clear from the fact that in the same paragraph, towards the end, the detaining authority has clarified as under: "Therefore, it is need to be detained you under COFEPOSA Act, 1974, with a view to preventing you in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods." 11. We are also unable to accept the submission of Mr. : 10 : Gupte that the affidavit of the detaining authority discloses any confusion prevailing in the mind of the detaining authority when she passed the order of detention. We will examine this submission. In the petition, the petitioner has averred as under: "The petitioner says and submits that even if it is assumed that the detenu had brought the mobile phones and the wrist watches from abroad, that activity would fall under the head (i) i.e. smuggling goods of section 3(i) of the COFEPOSA Act, 1974". What was sought to be conveyed was that the activities of the detenu can only be described as smuggling of goods. While replying this contention, the detaining authority has rightly denied that the act of the detenu would fall under section 3(1)(i) of the COFEPOSA Act i.e. smuggling of goods. In the affidavit in reply it is reiterated and emphasised that the order of detention is issued with a view to preventing the detenu in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods and we have no doubt that the order is passed after proper application of mind and having regard to the nature of the prejudicial activities indulged in by the detenu. The : 11 : denial complained of is consistent with the detaining authority’s stand and is in tune with the order of detention. The attempt on the part of the detenu to try to defeat the order of detention by reading averments made in the grounds and affidavit out of context must be repelled. It can only be described as hair-splitting. In this connection, we are reminded of what the Supreme Court has said in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, AIR 1986 SC 687. The Supreme Court has stated that even while there is no rule of law, that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. 12. In this connection, Mr. Gupte sought to rely upon several judgments. It is not necessary to refer to all of them because they are on similar lines. In our opinion, the facts of the present case clearly bear out the order of detention issued by the detaining authority and, therefore, the judgments relied upon by Mr. Gupte will not be applicable to the present case. In those cases, it was found by this court that either there was variance between the order of detention and the grounds of detention or the order of detention was not borne out by the material placed before the detaining authority. We may only refer to one judgment in Criminal Writ Petition No.329 of 1984 (Hajarimal Veerchand Jain v. State of Maharashtra & Anr.) decided on 12/11/1984. In that case, it was argued that on the basis of the material placed before the detaining authority, the : 12 : detaining authority could not have come to the conclusion that the detenu was keeping smuggled goods and dealing in them. On the facts, it was held that from the quantity and the value of other goods recovered from the detenu’s possession, it cannot be said that he was dealing in smuggled goods on such a large scale, that he should be deemed to have smuggled the goods himself or abetted smuggling of goods. It was further observed that merely purchasing from seamen, may be unknown, goods which were already smuggled, would neither amount to smuggling nor abetment thereof and, therefore, there is no justification for concluding that the detenu was smuggling goods or was abetting smuggling of goods making his detention necessary to prevent him from doing so. This court referred to the judgment of the Supreme Court in Narendra Purshotam Umrao v. B.B. Gujral and others, AIR 1979 SC 420, where it was held that sub-section 1 of section 3 of the COFEPOSA Act provides for different grounds of detention and, hence, it must be assumed that the intention of the legislature was to treat smuggling of goods and abetting smuggling of goods as grounds separate and distinct and, hence, both are separate grounds of detention i.e. to take in all such activities which result in accomplishment of smuggling of contraband goods. Necessary corollary of this conclusion is that the activity of smuggling of goods mentioned in clause (i) of sub-section (1) of section 3 must be attributed : 13 : restrictive meaning. It was further observed that a person found indulging in the activities mentioned in clauses (ii) to (v) cannot be detained for smuggling of goods or abetting smuggling of goods unless the activities are of such nature and volume that they lead to the conclusion that not only the detenu was indulging in those activities but was also smuggling goods or was abetting smuggling thereof. 13. There can be no doubt about this proposition but as already noted by us, in our opinion, in the facts of this case, the detenu could be said to be engaging in transporting or concealing or keeping smuggled goods and also dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods and, therefore, on facts, we do not find that it could be urged that the detention order is not supported by the material placed before the detaining authority. The judgments cited by Mr. Gupte could have no application to the facts of this case. The first submission of Mr. Gupte must, therefore, fail. 14. Connected with this submission is another submission of Mr. Gupte that the order of detention has been issued by the detaining authority by using the conjunction "or" in the impugned order of detention. According to Mr. Gupte, the detaining authority ought to have used the conjunction "and" and not "or" and the use of the word "or" in the order of detention as well as in the grounds : 14 : of detention demonstrates vacillating mind of the detaining authority. Mr. Gupte submitted that the detaining authority was not sure as to for which activity, the detenu was to be detained. According to Mr. Gupte, if the detaining authority felt that the detenu was engaging in transporting, concealing as well as keeping smuggled goods then the detaining authority ought to have used the conjunction "and" and not "or". Because of the use of conjunction "or" it is not clear as to whether the detaining authority wanted to prevent the detenu from transporting or concealing or keeping smuggled goods. The learned counsel pointed out certain orders of detention issued by the Central Government where the Central Government has used the conjunction "and" thus conveying to the detenu exactly for what purpose, he was being detained. Mr. Gupte contended that the confusion of the detaining authority has also led to denying the detenu an opportunity of making an effective representation against the detention order inasmuch as it was not possible for the detenu to know for what purpose he was detained. In support of his submission, Mr. Gupte relied on the judgment of the Constitution Bench in Jagannath Misra v. State of Orissa, AIR 1966 SC 1140, judgments of the Supreme Court in Kishori Mohan Bera v. The State of West Bengal, AIR 1972 SC 1749, Akshoy Konai v. State of West Bengal, AIR 1973 SC 300 and an unreported judgment of the Karnataka High Court in Neelaiah Gopaiah Rathod v. The State of Karnataka & Anr., in Writ Petition No.5 of 1986 decided : 15 : on 14/3/1986. To counter the argument of Mr. Gupte, Mr. Mhaispurkar, the learned A.P.P. relied on the judgment of this Court in Rajesh Vashdev Adnani v. The State of Maharashtra, in Criminal Writ Petition No.2482 of 2004 decided on 18/3/2005. 15. In our opinion, there is no substance in this submission of Mr. Gupte. We have already discussed the nature of prejudicial activities in which the detenu was engaged. His activity is so vividly described in the grounds of detention that according to us there is no question of the detenu in any way being confused and unable to know for what purpose he was detained. We also feel that engaging in transporting or concealing or keeping smuggled goods are three facets of the detenu’s activities, clearly evident from his statements recorded under section 108 of the Customs Act and the other material on record. But even otherwise, assuming that the usage of conjunction "or" is improper, we feel that the present order of detention can be held valid on the basis of section 5A of the COFEPOSA Act. Section 5A reads thus: "5A. Grounds of detention severable. _ Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made : 16 : separately on each of such grounds and accordingly - (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are - (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of : 17 : detention. (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. 16. In Attorney General for India and others v. Amratlal Prajivandas and others, (1994) 5 SCC 54, the Constitution Bench has while upholding the validity of section 5A of the COFEPOSA Act held that the first part of this section creates a legal fiction i.e. it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. Consequently, if one ground fails, if the rest of the grounds are valid, the detention order can still be upheld. 17. In State of Gujarat v. Chamanlal Manjibhai Soni, AIR 1981 SC 1480, the Supreme Court was dealing with section 5A of the COFEPOSA Act. In that case, while construing section 5A, the Supreme Court observed as under: "It is manifest that whenever the : 18 : allegations of smuggling are made against a person who is sought to be detained by way of preventing further smuggling, there is bound to be one act or several acts with the common object of smuggling goods which is sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constitutes the ground for detention. If this is so, in no case there could be any other ground for detention, except the one which relates to smuggling. In our opinion, this is neither the object of the Act nor can such an object be spelt out from the language in which Sec. 5-A is couched. What the Act provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. The reason for enacting Sec.5-A was the fact that several High Courts took the view that where several grounds are mentioned in an order of detention and one of them is found to be either vague or