IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2425 OF 2007 Najma Mohammed Kinju.... ...... ......Petitioner V/s State of Maharashtra & Ors. ...... ......Respondents. Mrs.A.N.Z. Ansari, Adv. For the petitioner. Mr.D.S.Mhaspurkar, APP For the State. CORAM: BILAL NAZKI AND A.P.DESHPANDE, JJ. 15.4.08 Oral Judgment: ( Per A.P.Deshpande, J.) By this petition the petitioner is challenging an order of detention dated 29.8.07 issued by the Principal Secretary (Appeals & Security) to the Government of Maharashtra-respondent No.2 against the husband of the petitioner under section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter for brevity referred to as “COFEPOSA Act”) and seeks release of the detenu. The challenge to the order is on two grounds viz. (a) that the impugned order of detention suffers from non application of mind in as much as the detention order seeks to prevent the detenu from smuggling goods whereas the grounds of 1 detention does not make any reference to the smuggling goods but refers to acts which are covered by clause (ii) and (iv) of the Act and (b) the discrepancy in the detention order and the grounds of detention denied a fair opportunity to the detenu to make an effective representation against the order of detention. 2. Perusal of the detention order reveals thus: “I, ..... ...... ...... am satisfied with respect to the person known as Shri Mohammed Rasheed Kinju ...... ...... ...... that with a view to preventing him in future from smuggling goods, it is necessary to make the following order:” Thus the detention order is obviously passed in exercise of powers under section 3(1)(i). For proper appreciation of the controversy section 3(1) of the Act is reproduced herein below: “3. Power to make orders detaining certain persons.-- (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from: 2 (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, it is necessary so to do, make an order directing that such person be detained:” 3. The grounds of detention which were served on the detenu along with detention order mentions that a specific intelligence was received by the officers of DRI, MZU that one passenger by name Andumai Velikoth was to arrive from Dubai by Indian Airlines Flight on 4.1.07 and would be carrying counterfeit Indian currency of printed value of about Rs.25 lacs in the denomination of Rs.1000 and Rs.500 for delivery to the detenu and the detenu would come by Indigo car to receive the same. Based on the said in-put of intelligence the detenu and his companion were spotted in the parking slot of the Sahar Airport, Mumbai. The said passenger was intercepted when the detenu and his companion were approaching him for collecting counterfeit currency kept in a cardboard box. The officers of DRI under a panchnama recorded the statements of the passenger and so also of the detenu and his colleague. The detenu' s 3 statement was recorded under section 108 of the Customs Act. The intercepted passenger who carried the counterfeit currency notes appears to have stated that in lieu of free ticket from Dubai to Mumbai he agreed to hand over the cardboard box containing the counterfeit currency notes handed over to him by one Abdul Haji for being delivered to the friend of Abdul Haji in Mumbai viz. the detenu. In the statement of the detenu recorded under section 108 of the Customs Act certain disclosures made by the detenu are referred to in para 5 on wards. According to that statement the detenu went to Dubai in 1987 and started doing household work till the year 1990. The detenu came back to Kerala after the death of detenu' s father in 1991. The detenu allegedly came to Bombay in search of some job and he took a house on rent. Thereafter the detenu is said to have again left for Dubai. It is then stated that the detenu used to stay at Dubai for 2/3 years and came back to Mumbai for 5/6 months. In this fashion the detenu is said to have stayed in Dubai till 2003 and during his stay in Dubai he worked as cook at various hotels. While in Dubai the detenu met one Abdul Haji and one Abdul Rehman. Said two persons came in acquaintance with the detenu as they were taking meals in the hotel where the detenu was working. Abdul Haji was running supermarket on partnership basis, the residential address of Abdul Haji is of Kerala. Abdul Rehman as well had his roots in Ernakulum and was doing laundry business in Dubai. In 2003 the detenu came to know that Abdul Haji was spotted in Mangalore for 4 dealing in fake Indian currency. After 3/4 months Abdul Haji was released on bail and had gone back to Dubai. The detenu got contact number of Abdul Haji from Abdul Rehman. As the detenu was facing financial crisis he contacted Abdul Haji and requested him to give some work. Upon that Abdul Haji asked the detenu whether he would deal in fake Indian currency. The detenu agreed to the same. Abdul Haji told the detenu that he will send fake Indian currency at the rate of Rs.45,000/- per one lac fake Indian currency. Abdul Haji then sent Rs.15 lacs fake Indian currency somewhere in June, 2006. As instructed Abdul Haji the currency was to be distributed amongst some persons by the detenu. The said persons collected the fake currency from the detenu from Mumbai. The remaining amount of Rs.2.75 lacs was with the detenu for which he handed over genuine Indian currency at the rate of Rs.45000/- per lac to one Mohd. Sharif as instructed by Abdul Haji. It is then mentioned that sometime in December, 2006 the detenu received call from Sri Lanka from one Abdulla Mohammed Abdul Aziz who told the detenu that he had been caught in connection with fake Indian currency and gave his contact number and Abdulla Mohammed Abdul Aziz used to talk with detenu on that number even from inside the jail. He informed the detenu that his man by name one Sohail is in Dubai and will send fake Indian currency and gave his Dubai contact number. The detenu contacted Abdul Mohammed Abdul Aziz and Sohail and they arranged to send the detenu Rs.25 lacs fake Indian currency. Sohail 5 informed the detenu that one passenger by Andumai Vellikoth would be travelling by Indian Airlines flight and would reach Mumbai early morning on 4.1.07 who will be carrying fake Indian currency concealed in carton and will hand over the carton to the detenu. Sohail gave description of the passenger that he will be having a carton with white colour tape tied with yellow colour plastic ropes. Hence as per the plan the detenu along with Abdul Rehman Kunju went to CSI International Airport in Indigo car for collecting fake Indian currency. After arrival of the flight when the said passenger came out the detenu approached him for collecting fake Indian currency and at that time the passenger and the detenu came to be intercepted. The detenu and his colleage Abdul Rehman Kunju are said to be involved in distribution of fake Indian currency. Abdulla Mohammed Abdul Aziz is said to be the kingpin for smuggling fake Indian currency from Dubai to India. The activities of the detenu mentioned in the grounds of detention clearly reveal abetting of smuggled goods, keeping smuggled goods or dealing in smuggled goods which are the grounds covered by clauses (ii), (iii) and (iv) of Section 3(1) of the Act. The conclusions recorded in para 11 and 12 of the grounds however refer that the detenu is engaged in smuggling activities by transporting, dealing and importing the said counterfeit Indian currency by concealment and by mis declaring the details. In para 12 it is stated thus: “12. .... ..... ...... ...... ..... Therefore in order to 6 break your gang and nexus with each other it is imperative you should be detained under the provisions of the COFEPOSA Act, 1974. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in such prejudicial activities, you are required to be detained under section 3(1)(i) of COFEPOSA Act, 1974 with a view to prevent you from smuggling in future.” All the activities that are attributed to the detenu are referable to grounds other than section 3(1)(i) of COFEPOSA Act. 4. Learned counsel appearing for the petitioner has placed reliance on a judgment in the case of Mahinder Singh Balwant Singh Oberai v/s The State of Maharashtra & Ors. (Writ Petition No.2610 of 2005 decided on 4.8.2006.) In the said case the the detention was with a view to prevent the detenu from “dealing in smuggled goods”, a ground provided by section 3(1)(iv) of the Act. However the activities were in the nature of abetting, smuggling of goods and in this context this Court observed : “11. ... .... .... ...... ...... ....On plain reading of the language of that clause, it is clear that it provides for detention of a person “with a view to preventing him from dealing in smuggled goods” and not for the other activities provided by other clauses such as smuggling goods [clause (i)], or abetting the smuggling of goods [clause (ii)], or engaging in transporting or concealing or keeping smuggled goods [clause (iv)], or 7 harbouring persons engaged in smuggling goods or in abetting the smuggling of goods (clause (v). 12. “Dealing” is a word of wide import which, inter alia, “to have to do in any way”. Its natural meaning has not been curtailed by the Act. It is a word of wide import and its meaning cannot be restricted. However, for clause (iv) to be attracted, the apprehension must be that the person would deal in smuggled goods i.e. Goods which have acquired the character of smuggled goods i.e. after they have been smuggled. 13. This clause does not cover dealing with goods before they are smuggled. That contingency is covered by clauses (i) and (ii). It is thus clear that the ground provided by clause (iv) cannot be invoked where the activities sought to be prevented are activities covered by the other clauses. This ground provided by this clause will certainly not be available to the detaining authority where the person is said to have conspired with others to import goods illegally by lending his IEC number. That would be in the nature of abetting the activity of smuggling.” The Court further observed : “15. Having considered the matter, in this view, it seems clear that the impugned order suffers from non-application of mind under section 3(1) of the Act. It is difficult to see how the detaining authority, after having concluded that the detenu 8 allowed the use of his IEC number for importing goods as distinct from smuggling of goods by permitting two other persons to do all the acts necessary for importing the goods, decided to detain the detenu with a view to prevent him from dealing in smuggled goods. There appears to be no overt-act by the detenu for smuggling goods or otherwise dealing with them other than by allowing his licence to be used for the purpose of import. It appears that the detenu' s activities are in the nature of abetment of smuggling activities by allowing the use of his IEC number and there is no material to show that he dealt with any smuggled goods. 16. It is a settled law that the five clauses in sub-section (1) of section 3 provides for separate and distinct grounds for detention vide Narendra v. B.B.Gujral (AIR 1979 SC 420) para 27. As observed earlier, there may indeed be an overlap and a person's activities may involve the abetment of smuggling as well as actual smuggling and in such a case, the detention order which is designed to prevent smuggling may nonetheless enable the detention of a person who has been found to abet smuggling where the facts justify an inference that the person has engaged in both activities vide paragraphs 28 to 34 of Narendra's case (supra). However, the facts must justify the invoking of a distinct and separate ground provided by the various clauses. It cannot be that the detaining authority refers to all facts 9 pertaining to, say the activity of smuggling, and then detains a person with a view to prevent him from harbouring persons engaged in smuggling of goods [clause (v)] without referring to any facts which give rise to the apprehension that the person may harbour others engaged in smuggling. In the present case, the grounds of detention do not refer to the detenu having dealt with any smuggled goods or having exhibited the intention of dealing in smuggled goods.” 5. Learned counsel has also relied upon judgment of Division Bench of this Court in the case of Ekta Satish Choudhary v. The State of Maharashtra & Ors., (Writ Petition No.2518 of 2004 decided on 17.1.2005). In the said case the activities of the detenu as referred to in grounds of detention were found to be in relation to smuggling whereas the detention order sought to prevent the detenu from abetting smuggling. The Court struck down the detention order by holding that there is variance in the purpose sought to be achieved by the detaining authority and the grounds disclosing that the detenu was engaged in smuggling and thus the variance prevented the detenu from making effective representation. Thus in the submission of learned counsel for the petitioner the order of detention is bad on account of non application of mind in as much as the detention is sought to be clamped with a view to preventing the detenu from smuggling of goods whereas activities referred to in the grounds of detention do not suggest the involvement of detenu in smuggling and 10 the activities are referable to other clauses such as abetment of smuggling. It is further submitted that because of the said discrepancy in the grounds of detention and the detention order the right of the detenu to make an effective representation is violated. 6. Per contra learned Additional Public Prosecutor for the respondent has tried to justify the detention order by contending that the detenu who receives the smuggled goods and distributes the same for illegal consideration would be carrying on the activity of smuggling and thus the detention under section 3(1)(i) is justified. It is further contended that smuggling has been defined in Section 2(e) of the COFEPOSA act so as to conote the same meaning as in clause 39 of Sec. 2 of the Customs Act. Clause 39 of section 2 defines smuggling as under: “Smuggling” - in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 of section 113.” It is thus submitted that `smuggling' is a word of wider import and would cover the activities of the detenue. Justifying detention under section 3(1)(i) of COFEPOSA Act. It is also contended that in the given case there could be overlapping of clauses under section 3(1) of COFEPOSA act. With a view to buttress the said submission reliance is placed on judgment of the Supreme Court reported in the case of Narendra Purshotam Umrao v. B.B.Gujral & Ors. AIR 1979 SC 420. The said judgment does not carry the case of the respondent any 11 further. There may indeed be overlap and a person's activities may involve more than one clauses of section 3(1) but in such a case the facts must justify invoking of a distinct and separate ground provided by the various clauses. In the present case the grounds of detention do not refer to the activities of detenu justifying that he has been engaged in smuggling. In this view of the matter we are of the opinion that the detention order is unsustainable and it deserves to be quashed and set aside on the ground of non application of mind in as much as the activities of the detenu referred to in grounds relate to other clauses barring 3(1)(i) of the Act whereas the detention order is passed for preventing the detenu from smuggling goods which is covered by section 3(1)(i). We also hold that on account of discrepancy between the detention order and the grounds of detention the detenu was denied a right to make effective representation. In the result writ petition is allowed. Impugned order of detention dated 29.8.2007 is quashed and set aside. Detenu shall be set at liberty forthwith if not required in any other case. Rule made absolute in above terms. 15.4.08 (BILAL NAZKI, J.) (A.P.DESHPANDE, J.) 12