Zohrabi v. Addl. Secretary — 1983 DIGILAW 313 (BOM)

JUDGMENT Kurdukar, J. - By a detention order passed on February 16, 1983, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 -hereinafter referred to as the COFEPOSA, the detenu Shri Shaikh Hussain is detained by the 1st respondent, the detaining Authority, with a view to preventing him from smuggling goods. The detention order was served on the detenu on February 25, 1983. The grounds of detention were formulated simultaneously with the order of detention and they were also served upon the detenu. The grounds of detention are annexed to this petition as Annexure 'C'. By this petition under Article 226 of the Constitution of India, Smt. Zhorabi Shaikh Hussein, wife of the detenu Shaikh Hussein, seeks to challenge the legality and correctness of the detention order. 2. A brief reference to the grounds of detention would be necessary to order to appreciate the rival contentions raised by the learned counsels appearing for the parties before us: It is common ground that the detenu on the date of the incident i.e. 12th of October 1982, was working as Air Customs Officer at International Sahar Airport, Bombay. He was in charge of arrival and departure launch. The grounds of detention recite as follows: On information that the detenu Mohamed Hussein Shaikh, Air Customs Officer, was showing interest in the clearance of one package (carton) lying at Air Cargo Complex, Officers of Customs Central Intelligence Unit, maintained a discreet watch. On October 15, 1982, at about 4.00 p.m. the carton in question was found repacked and strapped in the unaccompanied baggage hall. One Shiraj Japanwala, who was suspected to be the agent handling the said carton, was questioned about the same who replied that at the request of the detenu (Air Customs Officer) he was merely assisting the passenger for clearance of the said carton. Shiraj Japanwala was however unable to produce the passenger before the Customs Officer nor the passenger could be traced. This gave suspicion to the Customs Officers and, therefore, they put a customs seal on the said carton. A statement of Shiraj Japanwala was recorded who stated that he assisted the passenger on the instructions of the detenu. Shiraj Japanwala was however unable to produce the passenger before the Customs Officer nor the passenger could be traced. This gave suspicion to the Customs Officers and, therefore, they put a customs seal on the said carton. A statement of Shiraj Japanwala was recorded who stated that he assisted the passenger on the instructions of the detenu. The contents of the carton were given as food stuff, was examined on October 16, 1982 in the presence of two independent panchas and also in the presence of Siraj Japanwala which resulted into recovery of 1462 wrist watches valued at Rs. 1,19,100/- CIF and Rs. 2,38,200/- M.V. from six plastic bags concealed beneath children's wearing apparel. These articles were seized under the belief that they were liable to be confiscated under the Customs Act, 1962. During the investigation it was revealed that the said carton was booked as unaccompanied baggage of one Mohamed Anwar Shaikh Mohamed Tungekar from Dubai. One Newrangee Abdul Matten Mohamed Yusuf approached the detenu for assistance in clearing the said carton and both of them had been to the Air Cargo Complex on October 13, 1982 and the detenu introduced the said Matten to Shirai Japanwala, clerk working with a Customs Clearing Agent and also met R.K. Thakur, Preventive Officer, Customs. The detenu then requested R.K. Thakur to give reasonable assistance in clearing the said carton and on October 15, 1982, Shiraj Japanwala along with the passenger Mohamed Anwar Shaikh Mohamed Tungekar opened the said carton with the help of some persons for its examination by R.K. Thakur, the Preventive Officer. Since R.K. Thakur was required to attend to some other urgent work he could not complete the examination and, therefore, he repacked the said carton. In the meantime Customs Intelligence Officer arrived at the scene and got the said carton sealed with customs seal where from contraband wrist watches were later recovered and seized on October 16, 1982. The residence of the detenu was searched wherefrom some documents including one Indian Passport of Nawrangee Abdul Mateen were seized. Enquiries further revealed that the address of Mohamed Anwar Shaikh Mohamed Tungekar mentioned on the consignment note and in the baggage declaration from as 138, Turner Road, Bandra, Bombay - 400050 was fictitious. The residence of the detenu was searched wherefrom some documents including one Indian Passport of Nawrangee Abdul Mateen were seized. Enquiries further revealed that the address of Mohamed Anwar Shaikh Mohamed Tungekar mentioned on the consignment note and in the baggage declaration from as 138, Turner Road, Bandra, Bombay - 400050 was fictitious. Residential premises of Mateen, Shiraj Japanwala and of Tungekar were searched on October 20, 1982, but nothing incriminating was found in the premises of Mateen and Shiraj, however, one diary was seized from the premises of Mohammed Anwar. The statements of Tungekar, Rehman, Shiraj Japanwala, Raisinghani, Thakur and detenu himself were recorded on various dates. It is not necessary in this petition to give all the details about the statements of all these persons suffice it to say that when the Customs Officer opened the carton they found the contraband articles in the said carton and these articles were sought to be smuggled into India from Dubai, which is an offence under the Customs Act. 3. The sponsoring Authority has moved the proposal sometime on November 30, 1982 and the same was received by Mantra1aya on December 1, 1982. On December 30, 1982 the proposal was allotted to Shri C. D. Singh, the Additional Secretary in the Mantralaya and Shri C. D. Singh on January 31, 1983 ordered to issue detention order. Copies of the necessary documents were sent for by the detaining Authority on February 2.19.83 and the same were received from the sponsoring Authority on February 8, 1983. The impugned order of detention has been authenticated ort February 16, 1983. 4. Several contentions have been raised and pressed into service by the learned counsel Shri M. G. Karmali, in support of this petition while challenging the legality of the impugned detention order. The first and foremost contention which has been strongly put forth by the learned counsel for the detenu is contained in paragraph 3(b) of the petition, The substance of the argument of Shri Karmali is that the impugned order is based upon a single and solitary incident. The past conduct of the detenu is clear. On the basis of this single and solitary incident no rational prognosis of his future behaviour could be inferred and, therefore, the order of detention is wholly unjustified. The past conduct of the detenu is clear. On the basis of this single and solitary incident no rational prognosis of his future behaviour could be inferred and, therefore, the order of detention is wholly unjustified. He further submitted that in regard to the present incident there is no nexus between the smuggled goods and the detenu. He further submitted that suspension order being of vital importance should have been placed before the detaining authority and this has impaired the subjective satisfaction. According to the learned counsel non placement of the document of vital nature before the detaining Authority which would have weighed one way or the other on the mind of the detaining authority in arriving at a subjective satisfaction has vitiated the same. The impugned order, according to the learned counsel, is therefore, liable to be quashed and set aside on this ground alone. 5. As against this Shri Kamble, the learned Public Prosecutor submitted that the order of suspension is not a material document which should have been placed before the detaining authority and non production of the same would not vitiate the impugned order of detention. In this connection, the learned Public Prosecutor sought to rely upon the return filed on behalf of the detaining authority which reads as follows: "I further say that the detenu was working as an officer of Customs at the material period and that arrest under section 104 of the Customs Act 1962 of such person is invariably followed by departmental proceedings besides prosecution proceedings. I further say that his suspension from the service and initiating departmental enquiry proceedings by Customs Department were not sufficient to prevent the detenu's further indulgence in prejudicial activities, I deny an other contentions raised in this paragraph." This part of the return in our opinion, does not answer the averments of the petitioner that the order of suspension was not placed before the detaining authority. The return is expressly silent as to whether the said order of suspension was placed before the detaining authority or not. In the absence of express averments in the return of the detaining authority we feel no hesitation in coming to the conclusion that the order of suspension of the detenu was not placed before the detaining authority. 6. The next question that falls for our consideration is as to whether the document viz. In the absence of express averments in the return of the detaining authority we feel no hesitation in coming to the conclusion that the order of suspension of the detenu was not placed before the detaining authority. 6. The next question that falls for our consideration is as to whether the document viz. the order of suspension is of vital importance or not and whether non placement of the same before the detaining authority has vitiated the subjective satisfaction and/or impaired the same. In this behalf the learned counsel Shri Karmali urged that the grounds of detention mention that the detenu being in the position of a higher officer in the Customs Department has sought to influence the colleagues and/or subordinates by requesting them to give assistance in clearing the carton unaccompanied baggage in which the smuggled goods were ultimately seized. These facts formed the basis on which the ground of detention were formulated and these facts have got a nexus with the instructions given by the detenu to his colleagues and/or subordinates to clear the said carton containing smuggled goods. 7. Shri Karmali in support of his submissions strongly relied upon the judgment of the Supreme Court in Ashadevi v. K. Shiv raj1 He brought to our notice paragraph 6 of the said judgment which reads as conder: "6. It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizaiuddin v. State of West Bangal.2 the order of detention was made on September 10, 1973 under S. 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminum wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows (at p. 2354 of AIR): "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate." It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by the Supreme Court in Suresh Mahato N. The District Magistrate, Burdwan,3 The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiate the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." 8. Shri Karmali also brought to our notice in this connection several authorities of this Court as well as of the Supreme Court but we do not wish to burden this judgment by making reference to all these authorities. The principle enunciated by the Supreme Court in Ashadevi's case in holding the field to-day in connection with non production of the material or vital facts and/or documents before the detaining authority. In the present case the detention order was mainly based upon the facts recorded in the grounds namely Shiraj Japanwala went with the detenu to Raisinghani Superintendent and Thakur, Preventive Officer, both from the Customs Department where the detenu requested the Customs Officers to clear the said package. The same facts were again reinforced in paragraph 18 of the grounds of detention namely".... Shri Thakur has replied that he took a lentent view of tampering of the documents only because A.C.O Shri Shaikh Hussain (detenu) had requested him to help the passenger." The ground further recites that Shri Thakur's omissions and commissions helped the passenger to clear the said baggage. In ground No. II, it was then specifically stated that the evidence of Shri Japanwala and Shri Tungekar along with the panchanamas clearly indicate that the detenu approached them and Shri R K. Thakur and Shri Raisinghani, who are both Customs Officers to give assistance in clearing the carton containing the watches hidden in it and not declared to the Customs and attempted to be smuggled. In order to prevent the detenu from smuggling goods and indulging in such prejudicial activities Government considered it necessary that the detenu should be detained under Conservation of Foreign Exchange arid Prevention of Smuggling Activities Act (Emphasis supplied). In order to prevent the detenu from smuggling goods and indulging in such prejudicial activities Government considered it necessary that the detenu should be detained under Conservation of Foreign Exchange arid Prevention of Smuggling Activities Act (Emphasis supplied). These recitals in the grounds of detention therefore unmistacably show that what weighed upon the mind of the detaining authority was the position of the detenu as Air Customs Officer and who in his capacity gave instructions to Shri Thakur and requested Shri Raisinghani to assist in clearing the carton. In view of these facts the question is as to whether the detenu who has been suspended would be in a position to place a word with his colleagues or subordinates in clearing such smuggled activities and would he repeat the said activities in future and in order to prevent him from indulging and/ or repeating such activities he needs to be detained under COFEPOSA. If these are the facts, in our opinion, the order of suspension of the detenu is of vital importance and this material should have been placed before the detaining authority which would have a bearing on the issue and influence the mind of the detaining authority one way or the other. Having not placed the order of suspension before the detaining authority nor having brought this fact to the notice of the detaining authority, in our opinion, the subjective' satisfaction of the detaining authority has been vitiated therefore, following the judgment of the Supreme Court in Ashadevi's case it will have to be said that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order, got vitiated because material or vital facts which would have a bearing on the issue and would have influenced the mind of the detaining authority one way or the other were ignored and not considered by the detaining authority before issuing the detention order. 9. In the view which we have taken it is not necessary to refer to the various other arguments advanced before us by Shri Karmlli challenging the impugned order of detention. 10. 9. In the view which we have taken it is not necessary to refer to the various other arguments advanced before us by Shri Karmlli challenging the impugned order of detention. 10. In the result, the impugned order of detention will have to be quashed and set aside and accordingly the impugned order of detention is quashed and set aside and the detenu is ordered to be released forthwith if not required in any other matter. Rule is accordingly made absolute. There shall be no order as to costs. Petition allowed. 1. A.I.R. 1977 S.C. 447. 2. A. I.R. 1974 S.C. 2353. 3. A.I.R. 1975 S.C. 728.