SHIV RATAN MAKlM S/O NANDLAL MAKlM v.

UNION OF INDIA AND ORS.

DcCEMllER 16, 1985

[P, N, BHAGWATI, C.J. AND R.S. PATHAK, J.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, s.3 - Detention order - Solitary incident - Whether sufficient for detention - Time gap between incident and detention order - Whether vitiates order - Detention order - Whether call be made to !:!ubvert, supplant or substitute the punitive law.

The petitioner while returning from Nepal was intercepted by the Customs Officers in the morning of' 20th November, 1984 and searched in the presence of independent witnesses. From his trousers' pocket two pieces of foreign marked gold in the shape of round tablets weighing 373.800 gms. were recovered and seized under the Customs Act. The petitioner was arrested and on interrogation he filed a written statement admitting the search and the seizure. On an application made by him he was released on bail.

The second respondent thereafter passed an order dated 11th April 1985 under s. 3 of COFEPOSA Act directing the detention of the petitioner. The representation of the petitioner was rejected by the Central Government. The advisory Board opined that there was sufficient cause for the detention of the petitioner and the Central Government confirmed the detention order directing detention for one year.

The petitioner challenged the validity of the order of detention before this Court contending: (i) that the order of detention was based on a solitary incident and apart from this incident there were no other incidents showing that he was habitually smuggling gold, (ii) that considerable time had elapsed between the date of recovery of gold pieces and the detention order, and this long lapse of time showed that the detention order was vitiated by malafides, and (iii) that the detention order was made with a view to circumventing or by-passing the criminal prosecution and that the power of detention cannot be used to subvert, supplant or substitute the punitive law.

A Dismissing the petition,

llE1D : 1, Having regard to the nature of the activity and the circumstances in which the petitioner was caught smuggling gold, and the facts set out by him in his written statement, the B second respondent was justified in reaching the atisfaction that the petitioner was engaged in smuggling gold and that with a view to preventing him, it was necessary to detain him, [847 E-F]

2. Where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus c between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which ahould be regarded sufficient to snap the nexus between the incident and the order of detnetion, (646 A-Bl

In the instant case, the lapse of time bet..., en the date of o the incident and the date of order of detention has been sufficiently explained by the detaining authority. No inference of malafides can, therefore, be drawn. (846 B-<;]

3, The object of making an order of detention is preventive while the object of a criminal prosecution is punitive. Even if a E criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention.

If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilt in a Court of law,' it would certainly be an abuse of the power of prevent! ve detention and the order of detention F would be bad. But if the object of making the order cf detention is to prevent the colllllission in future of activities injurious to the comwnity, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention G falla. (846 F; 649 B-il]

In the instant case, the petitioner was caught in the act I of smuggling gold and the circumstances in which the gold was being smuggled as also the facts set out in the written statement of the petitioner clearly indicate that the petitioner was H engaged in the activity of smuggling gold. It, therefore, cannot be said that the order of detention was passed by the second

SHIV RATAN MAKlM v. u.o.I. [BBAGl<ATI, c.J.] 845

respondent with a view to subverting, supplanting or substituting the criminal law of the land.. The order of detention was passed A plainly and indubitably with a view to preventing the petitioner from continuing the activity of smuggling and it was, therefore, a perfectly valid order of detention. [849 D-F]

l!qbhharta Vo State of West Bengal, [1973] 3 SCC 250 relied upon.

ORIGINAL JURISDICTION of 1985.

Writ Petition (Criminal) No. 1122

(Under Article 32 of the Constitution of India)

Soli J, Sorabji, A.K.

Nag and K.D.

Prasad for the Petitioner.

N.C. Tulkdar, and R.N. Poddar for the Respondents.

The Judgment of the Court was delivered by D

BllA(; llAT!, CJ. This is a writ petition filed by the petitioner for a writ of habeas corpus praying for revocation of the order of detention dated 11th April 1985 passed by respondent No. 2, Joint Secretary to the Government of India, against the petitioner under Section 3 of the Conservation of Foreign E Exchange and Prevention of Sn.iggling Activities Act 1974 (hereinafter referred to as COFEPCSA Act). We heard the writ petition on 18th September 1985 and after hearing the arguments advanced on both sides, we passed an order on the same date dismissing the writ petition. We now proceed to give our reasons for making that order.

On the basis of information received by them, the Customa Officers at Panitanki Land Customs Station intercepted an auto-rickshaw bearing No. WGY-9854 coming from Nepal at about 8 a.m. in the morning of 20th November 1984. There were four occupants in the auto-rickshaw, namely, the petitioner, Raj Kumar Gupta, Pre& Prasad Bothari, and Aksdeshi Bahadur. These four occupants as well as the driver of the auto-rickshaw were searched by the Customs Officers in the presence of independent witnesses and as a result of the search, no contraband goods were found in the possession of the other three occupants and the driver of the auto-rickshaw but from the pocket of the trousers worn by the petitioner, two pieces of foreign marked gold in the shape of round tablets weighing 373.800 gms. and valued at

846 SLPREl'J. COURT REPORTS [1985] SUPP. 3 s.c.R.

A Rs.74760 were recovered and they were seized under the Customs Act. The petitioner was immediately arrested and on interrogation, he filed a written statement on the sarre day stating that he had been uneffiployed for a long time and that he was introduced in the business of purchase and sale of foreign marked gold by one Prakash Pincha and that on 16th ovember 1984, he left R Kathiar by bus and arrived in Kathmandu at 6 a.m. on 18th November 1984 and stayed at Kanji Lodge in Kathoondu and as per prior arrangement, he contacted one Dena Lal Aggarwal on Telephone o. 344889 and Lena Lal Aggarwal thereuon came to Kanji Lodge along with the requisite quantity of gold and he took delivery of gold froru Dena Lal Aggarwal and paid him Rs. 70400 in Indian currency and thereafter he left Kathmandu at 1800 hrs. on c 19th November 1984 reaching Kakarbatha opposite Panitanki and Customs Station at 7 .3G a.m. on 20th ovember 1984 and boarded auto-rickshaw bearing No. wGY-9854 which later on picked up the other passengers and ultimately the auto-rick.shaw 'Was intercepted and he was searched resulting in the seizure of two pieces of foreign marked gold which were in the pocket of his trousers. The petitioner was produced before the Sub-Livisional Judicial o Magistrate, Siliguri on 21st November 1984 and on an application made by him, he was released on bail by the Sub-Divisional Judicial ~.agistrate on 5th December 1984. The second respondent who is the Joint Secretary to the Government of India thereafter passed an order dated 11th April 1985 under Section 3 of COFEPOSA Act directing that the petitioner be detained and kept in custody E in the central Jail, Patna. The order of detention recited that it was passed with a view to preventing the petitioner from smuggling f, Oods. Ihe grounds on which the order of detention was based were supplied to the petitioner immediately on his arrest under the order of detention. The petitioner made a representation dated 17th iay 1985 against the order of detention but the F representation was rejected by the Central Government on 23rd May

1985. The case of the petitioner was placed before the Advisory Board which gave the opinion that there was sufficient cause for the detention of the petitioner and on receipt of this opinion of the Advisory Board, the Central Government by an order dated 6th June 1985 confirmed the order of detention and directed that the G petitioner 9e detained for a period of one year from the date of his detention, namely, 23rd April 1985. The petitioner thereupon preferred the present "rit petition challenging the validity of the order of detention and seeking a direction that he may be released from detention.

H Though several grounds were taken in the writ petition only three were seriously pressed by the learned counsel appearing on behalf of the petitioner: The first ground was that the order of

SHIV RATAN MAKI1'1 v, U,"0,1, [BliAG\iATI, C, J .J. 847

detention was based on the solitary incident in which two pieces of foreign marked go).d were recovered from the pock.et of the trousers of the petitioner on 20th Novefuber 1984 and apart from this incident there were no other incidents showing that he was habitually smu;, gling gold. The second ground was that considerable time had elapsed between the date when he was found to be carrying two pieces of foreign marked gold and the date of the order of detention and this , long lapse of time shOwed that the order of detention was vitiated by malafides. And the last ground was that the order of detention was made with a view to circumventing or byfassinb the criminal prosecution instituted against the petitioner and the detaining authority had not applied its mind to the vital aspect that the power of detention cannot be used to subvert, supplant or substitute the punitive law. We do not think any of these three grounds can be sustained.

So far the first 1:.round is concerned, it is obvious that having regard to the nature of the activity of smuggling, an inference could legitimately be drawn even from a single incident of smuggling that the petitioner was indulging in siwggling of gold moreover. The written statement given by the petitioner clearly indicated that the petitioner was engaged i~ the business of purchase and sale of foreign marked gold and that this incident in which he was caught was not a solitary incident. The facts stated by the petitioner in his written statement could legitimately give rise to the inference that the petitioner was a member of a smuggling syndicate an<l merely because only one incident of smuggling by the petitioner came to light, it did not mean that this was the first and only occasion on which the petitioner tried to siwggle gold. There can be no doubt that having regard to the nature of the activity and the circumstances in which the petitioner was caught sn; uggling gold and the facts set out by him in his written statement, the second respondent was justified in reaching the satisfaction that the petitioner was engaged in smuggling gold and that with a view to preventing him from smuggling gold, it was necessary to detain him.

Turning to the second .ground of challenge, we do not think that the lapse of time between the date when two pieces of foreign marked gold were found on the person of the petitioner and the date of the order of detention was so unduly long er that the explanation for such lapse of time offered by the respondents was so unsatisfactory that we should draw an inference of malafides on the part of the detaining authority in making the order of detention. The delay in making the order of detention has, in our opinion, been satisfactorily explained by the time-chart set

out as Annexure R-1 to the counter affidavit filed by Shri A.K, Agnihotri on behalf of the respondents. It is no doubt true that where an unreasonably long period has elapsed between the date of the incident.and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention . may be liable to be struck down as invalid. But there can be no hard and. fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention. We are of the view that here the lapse of time between the. date of the incident and the date of the order of detention has . been sufficiently . explained by the detaining authority and hence we are not prepared to draw the inference of . n:.alafides merely because the order of detention happened to be . made about five months after the petitioner was found carrying two pieces of foreign marked gold.

The last ground urged on behalf of the petitioner is also equally without substance. The contention of the petitioner was that 1criminal prosecution cannot be circented or shortcircuted by ready resort to preventive detention and the power of detention caiinot be used to subvert, Supplant or substitute the punitive law of the land. The petitioner urged that no material has been disclosed by therespondents to establish the existence of any exceptional reasons which would justify recourse to preventive detention in the p[esent case such as.witnesses being afraid to depose against the detenu in court or other genuine difficulties.in.bringing the culprits to book in a criminal court under thE. ordinary law of the land and in the absence of such --- reasons before the detaining authority, it was not competent to the detaining authority to make the order of detention by passing F the criminal prosecution. This argument completely overlooks the '-.. , fact that the object of making an order of detention is preven- ··, . tive while the object of a criminal prosecution is punitive. Even "if a criminal prosecution fails and an order. of detention is then made, it would not invalidate ·· the, order of deter.tion, becaus'e,' as pointed out by 'this court in Subhbarta v. State of G ·-llest .Bengal, [1973) 3 s.c.c. 250, "the purpose of preventive detention being different frolll" conviction and punishment and 'subjective satisfaction beillg necessary in the former while proof beyond reasonable doubt being necessary in the latter", the order of detention Would . not be bad merely because the criminal --.._ ·•prosecution, has failed •. lt.was pointed out by this Court in that case that . "the Act creates in the authority cone~~ a new, H

SliIV RAIAN MKlh v. u.o.r. [I>HAGWAII, c.J.) 849

jurisdiction to make orders for preventive detention on their A subjective satisfaction on grounds of. suspicion of conimission in . future of acts prejudicial to the collllllllility in general. This jurisdiction is different from that of judidal trial in courts for offences and oCjudicial orders for prevention of offences.

Even unsuccessful'• judicial trial or. proceeding 1'0Uld therefore ll not operate as a bar to a detention order or render. it malafide".

If the-failure of-the criminal prosecution can be no bar to the making of -an order -of detention, a fortiorari the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. - If an -order of detention is made only in order to by pass a criminal prosecution C 1'hich may be irksome because of the inconvenience of proving guilt in a court of law, it 1'ould certainly_ be an. abuse of the power of preventive detention and the order of detention 1'ould be bad. But if the object of making the order of _detention is to prevent the commission in future of activities injurious to the community, it 1'ould be a perfectly legitimate exercise of power D to make the -order of detention. The Court 1'ould have to consider all the facts and circumstances of.the case in order to determine on which side .'of the line the order of detention falls. Here the petitioner was caught in the actof smuggling gold and the circumstances in 1'1.lch the gold was_ being smuggled as also the facts set out in the written statement of the petitioner clearly E indicate that the petitioner 1'as •engaged in the activity of , smuggling gold and if that be so, it is not possible to say that the order of detention 1'as passed by the 'seco_nd respondent with a view to subverting, supplanting or substituting the.criminal law of the land. The order of detention was plainly and indubitably with a view to preventing the petitioner from continuing the F activity of smuggling and it was therefore a perfectly valid order of detention.

These "ere the reasons for which-,.e sustained the order of detention and dismissed the writ petition.

A.P.J.

Petition dismissed.

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