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1985 DIGILAW 1 (BOM)

Neeta Puranlal Notani v. State of Maharashtra

1985-01-07

H.W.DHABE, M.M.QAZI

body1985
JUDGMENT - QAZI M.M., J.: - The petitioner is the wife of the detenu Purnalal Lodharam Notani, who has been detained by the respondent vide order dated 19th June, 1984 with a view to preventing him from abetting the smuggling of goods under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. The incident which led to the passing of the order of detention is of 7th March, 1984, when the officers of Customs Preventive - 1 Unit of Marine and Preventive Wing, Bombay, working on secret information rushed to Laxmi Hindu Lodge in the evening and while the officers were maintaining unobstructive watch, two persons approached the Lodge Manager and started making enquiry about Puranlal detenu. The said two persons gave their names as (1) Mangelal Bherji Mehta and (2) Amrutlal Sirdhar Joshi. Amrutlal Joshi had a gunny cloth bag with him. On enquiry, Amritlal informed that the said bag was containing wrist watches of foreign origin. The personal search of Mangelal Mehta resulted in recovery of 5 pieces of Vega wrist watches of Japan made valued at Rs. 1750/-. On examination, the gunny cloth bag of Amrutlal resulted in recovery of 610 pieces of different wrist watches and straps of foreign origin totally valued at Rs. 30,225/-. While this was going on, one person who gave his name as Bhopalsingh Shivsingh Rao came enquiring about Prakash. This Bhopalsingh was also detained. His personal search resulted in recovery of 50 pieces of Richo D.D. 17 jewels winding Japan made wrist watches valued at Rs. 7,500/-. The detenu who was sitting in Room No. 14 was brought to his own Room No. 6 of Laxmi Lodge along with Indrakumar Hemal Duseja. The V.I.P. Brief case in the said room was opened in presence of panchas, which resulted in recovery of 35 wrist watches of Richo D.D. and winding Japan made valued at Rs. 5,000/-. A cash of Rs. 675, was found in possession of the detenu was duly returned to him. Prakash Shevram Kunwani, the associate of detenu, was present in that room. The officers found one small rexine pounch of coffee colour which was found containing 40 pieces of Citizen Japan made 17 Jewels wrist watches valued at Rs. 8,000/-. In short, the officers recovered and seized 740 pieces of Wrist Watches valued at Rs. Prakash Shevram Kunwani, the associate of detenu, was present in that room. The officers found one small rexine pounch of coffee colour which was found containing 40 pieces of Citizen Japan made 17 Jewels wrist watches valued at Rs. 8,000/-. In short, the officers recovered and seized 740 pieces of Wrist Watches valued at Rs. 52,475/- from the detenu and his associates. A cash of Rs. 5,800/- recovered from the bag of the detenu was also seized under the belief that this amount is the sale proceeds of smuggled goods and liable to confiscation under the provisions of the Customs Act, 1962. During the course of investigation, statement of the detenu was recorded under section 108 of the Customs Act, 1962, on 8-3-1984 and he, inter alia, stated that he has been dealing in cutlery goods for the last 3 years and every month he visited Bombay to purchase goods. He further stated that at Bombay he always stayed at Laxmi Lodge. He further admitted that before this on earlier two occasions he visited Bombay and purchased watches from Suklaji Street. It is under these circumstances that the impugned order came to be passed. 3. There is no dispute that the grounds of detention were made available to the detenu on the same day to enable him to make representation, as required under Article 22(5) of the Constitution of India. The detenu made necessary representation and the same was considered and rejected by the authorities concerned. Ultimately, the order or detention was confirmed. 4. The petitioner has raised several challenges in the petition but it is not necessary to deal with all these challenges since the petition can be allowed on the short ground raised in para 11, which reads thus: “11. The petitioner submits that the impugned order at Annexure-A to the petition refers that the detention of the detenu is necessary with a view of prevent him from abetting the smuggling of goods, whereas the grounds in support of the detention order speak that the necessity of detaining the detenu in his indulging in smuggling activities and from preventing him from indulging in such activities in future. The petitioner submits that the said feature demonstrates a clear non-application of mind on the part of the Detaining Authority and further demonstrates that the Detaining Authority acted in a casual manner and mechanically passed the impugned order of detention against the detenu, which is liable to be quashed and set aside on this short ground.” 5. Shri Manohar, the learned Counsel appearing on behalf of the petitioner, submitted that the order of detention has been passed on the solitary ground of preventing the detenu from abetting the smuggling of goods, whereas, according to him the grounds supplied to the detenu do not even remotely refer to the offence of abetment. He has also invited our attention to section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the relevant portion of which reads thus: “3(1). The Central Government or the State Government or any officer of the Central, Government,.. ... 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 : (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (v) 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.” According to Shri Manohar, section 3 referred supra lays down as many as 5 categories of offences and the authorities concerned would be justified in passing the order of detention in respect of any of the categories of offices enumerated in the section. According to him the impugned order has been specifically passed under section 3(1)(ii), which deals with the offence of abetting the smuggling of gods, whereas the grounds made available to the detenu refers to activities of the detenu which may at the most constitute dealing in smuggled goods, the category which falls under section 3(1)(iv). 6. Shri B.K. Chougule, Special Secretary to the Government of Maharahstra, Home Department (Law and Order), has placed an affidavit on record in reply to the challenge raised in the petition. 6. Shri B.K. Chougule, Special Secretary to the Government of Maharahstra, Home Department (Law and Order), has placed an affidavit on record in reply to the challenge raised in the petition. It is worthwhile to refer to para 10 of the affidavit, which deals with the challenge raised by the detenu in para 11 of the petition. It reads thus: “With reference to para 11 of the petition, I say that the activities of the detenu are overlapping namely the abetment of smuggling of gods as well as indulging in smuggling activities. I say the words “smuggling” as defined in section 2(a) of the said Act has the same meaning as section 2(39) of the Customs Act. I say that wider meaning has been given to the word “smuggling” to broaden the scope of preventive detention. In view, of this, the detenu's activities have come within the meaning of smuggling and also abetting the smuggling. In view of this, I deny the contention raised by the petitioner in this ground that there is non-application of mind raised by the petitioner in this ground on my part and further I acted in a casual manner and mechanically passed the impugned order.” We may also refer to para 13 of the affidavit wherein it is stated on behalf of the State of Maharashtra that if all the material placed before the Detaining Authority is taken into consideration, it is seen that the detenu was dealing in smuggled goods. It further recites that the detenu's act in the instant case amounts to smuggling of goods as defined under COFEPOSA Act, 1974, and as such it has been rightly mentioned in the grounds of detention that the detenu indulged in smuggling of goods. 7. In our view, the petition will have to be allowed on the short ground of the challenge raised by the petitioner in para 11. The perusal of the order dated 19th June, 1984 leaves no doubt that the order of detention has been passed on the solitary ground of preventing the detenu from abetting the smuggling of goods, whereas the grounds formulated in support of the detention do not even remotely refer to activities of abetment. The perusal of the order dated 19th June, 1984 leaves no doubt that the order of detention has been passed on the solitary ground of preventing the detenu from abetting the smuggling of goods, whereas the grounds formulated in support of the detention do not even remotely refer to activities of abetment. Abetting the smuggling of goods has been shown as a distinct offence under section 3 of the COFEPOSA Act along with several other offences under which the order of detention can be passed by the Detaining Authority. We see much substance in the submission of Shri Manohar that the impugned order demonstrates a clear non-application of mind on the part of the Detaining Authority and further demonstrates that the Detaining Authority acted in a casual and cavalier manner. 8. According to Shri Badar, the word “smuggling” has to be given very wide meaning. He has taken us through the definition of the word “smuggling” as defined in section 2(39) of the Customs Act. According to him, from the grounds the case of smuggling of goods has been clearly made out against the detenu and this itself should be sufficient to include the abetting of the smuggling of goods. We are unable, to accept the contention of Shri Badar. In our view, abetment is a distinct offence and unless there are clear averments in the grounds showing the activities of the detenu, which will constitute abetment, it would not be possible for him to make effective representation as required under Article 22(5) of the Constitution of India. This, in our view, is bound to affect his valuable right of making a representation. From the grounds it appears that he was called upon to meet the case one of dealing in smuggled goods, whereas the order of detention speaks about the abetting the smuggling of goods. Therefore, there is much substance in the submission of Shri Manohar that the detaining authority did not apply its mind to the entire facts and the material placed before it and thus the order of detention itself is vitiated for non-application of mind. 9. The petition is, therefore, allowed. The order dated 19th June, 1984 passed by the respondent is hereby quashed and set aside. The detenu be released forthwith unless required in any other case. Petition allowed. -----