SHIV RATAN MAKLM S/O NANDLAL MAKLM versus UNION OF INDIA AND ORS.

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 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.

p. 845, margin D

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 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 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 thereu~on 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 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 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 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 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 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 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.

pp. 845–846, margin F

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

p. 846, margin H

SHIV v, U,"0,1, [BliAG\iATI, C,J .J. detention was based on the solitary incident in which of foreign marked go).d were recovered from the pock.et trousers of the petitioner on 20th Novefuber 1984 and this incident there were no other incidents ·showing habitually smu;,gling gold. The second ground was that able time had elapsed between the date when he was found carrying two pieces of foreign marked gold and the date order of detention and this ,long lapse of time shOwed order of detention was vitiated by malafides. And the was that the order of detention was made with a view venting or byfassinb the criminal prosecution instituted the petitioner and the detaining authority had not mind to the vital aspect that the power of detention used to subvert, supplant or substitute the punitive not think any of these three grounds can be sustained.

p. 847

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

p. 847, margin C

Turning to the second .ground of challenge, we do that the lapse of time between the date when two foreign marked gold were found on the person of the and the date of the order of detention was so unduly long the explanation for such lapse of time offered by the was so unsatisfactory that we should draw an inference fides on the part of the detaining authority in making of detention. The delay in making the order of detention our opinion, been satisfactorily explained by the time-chart A' 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. 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.

pp. 847–848, margin G

The last ground urged· on behalf of the petitioner is also equally without substance. The contention of the petitioner was that criminal prosecution cannot be circ~ented 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 the·respondents 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

p. 848

the detaining authority to make the order of detention by passing

p. 848

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,

p. 848

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

p. 848

of detention Would . not be bad merely because the criminal --.._ ·•prosecution, has failed •. lt.was pointed out by this Court in that

p. 848

case that . "the · Act creates in the authority con~e~~ a new, ·H .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 act- of 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.

pp. 848–849

These "ere the reasons for which-,.e sustained the order of ·detention and dismissed the writ petition. G A.P.J. Petition dismissed.

p. 849