G. K. KANTHARAJA SETTY v. STATE OF KARNATAKA — 1987 DIGILAW 294 (KAR)

SHIVASHANKAR BHAT, J. ( 1 ) THE petitioner is the father of the detenu - G. K. Nagaraj. By an order dt. 18-2-1987 made under Sec. 3 (1) (iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) the said Nagaraj was detained by the Government of Karnataka. The grounds of detention may be summarised thus :- ( 2 ) ON 17-11-1987 Officers of the Directorate of Revenue Interlligence (DRI) having gathered information that the detenu was likely to dispose of foreign marked gold in Chickpet area of Bangalore, shadowed his movement and apprehended him at 13. 30 hours near the Avenue Road, Chickpet Circle. In the presence of the witnesses, the detenu Admitted having possessed foreign marked gold. In view of the large crowd gathered at the said public spot, the Officers took him to their office at Indiranagar along with some witnesses. In the office of the DRI at Indiranagar, the detenu was searched and 8 gold biscuits with foreign markings kept in the pant pockets were recovered. The detenu did not have any evidence to show his licit possession of the said gold biscuits. A certified goldsmith testified, after applying the touch-stone method, that the gold biscuits were of foreign origin, having purity of 24 cts. These are also reflected in the mahazar drawn, duly attested by the witnesses and the said goldsmith. Thereafter the detenu was questioned under S. 108 of the Customs Act and he made his statement. ( 3 ) THE detenu has stated inter alia that his elder brother Suryaprakash and himself started a shop in the Temple Street and in the said shop both of them were doing business. He stated that they did not have any gold dealer's licence. The ostensible business was in old silver and silver ornaments. The detenu admitted again, having possessed of the gold biscuits seized from him. According to him his brother gave him the said 8 gold biscuits with foreign markings and asked him to sell the same among the local gold dealers. After enquiring the prices in 3 or 4 shops, he proceeded to sell them and the last shop he visited was Rajatha Jewellers at Avenue Road, who refused to buy the gold biscuits. Immediately thereafter when the detenu came to the Avenue Road Circle, he was apprehended by the DRI Officers. After enquiring the prices in 3 or 4 shops, he proceeded to sell them and the last shop he visited was Rajatha Jewellers at Avenue Road, who refused to buy the gold biscuits. Immediately thereafter when the detenu came to the Avenue Road Circle, he was apprehended by the DRI Officers. According to the detenu, he had decided to sell each biscuit for Rs. 27,758/-, the price which his brother had quoted. After selling, the money had to be handed over to his brother. ( 4 ) THE detenu further stated that he had sold foreign marking gold biscuits so many times to so many local jewellers in Bangalore, though he was not in a position to disclose the names and addresses of the purchasers. The detenu had a passport and he stated that he had been to Singapore once in May, 1985. ( 5 ) IT may be stated here that the weight of the gold biscuits were stated as 932:00 gms. valued at Rs. 2,16,000/- ( 6 ) ON the same day, the residential premises of the father of the detenu was also searched and the mahazar disclosed that no contraband goods nor incriminating documents were found therein. Similarly, the search of the above referred shop also yielded no result. The brother of the detenu was not found. ( 7 ) ON 18-11-1986 there was a further statement of the detenu under Sec. 108 of the Customs Act. In this he corrected his earlier statement by pointing out that the last shop he visited was Rajatha Mahal and not Rajatha Jewellers and the name given earlier was by mistake. He further stated that his brother, Swamy knew more details about the latter. On the same day the detenu was served with an arrest memo at 11. 00 hours and he was produced before the Special Court for Economic Offences, Bangalore, with an application by the Superintendent of DRI seeking remand of the detenu to judicial custody pending further investigation. ( 8 ) IT is pointed out by the counsel for the petitioner that on the same day he presented an application seeking release of the detenu on bail. The same is filed as Annexure-C to the writ petition found at page 63 of the paper book. ( 8 ) IT is pointed out by the counsel for the petitioner that on the same day he presented an application seeking release of the detenu on bail. The same is filed as Annexure-C to the writ petition found at page 63 of the paper book. In this application it was stated that the accused (detenu) was an innocent person and that he did not contravene the provisions of the Customs Act nor that of the Gold Control Act. It was further stated that he was not found in possession of any contraband goods or incriminating materials. There is a further statement that he had not made an confessional statement before the complainant (DRI) and that all his statements were not given by him voluntarily and the same were obtained by duress and coercion. This bail application is not included in the documents annexed to the grounds of detention, but a reference to this bail application is found in the order-sheet of the Special Court for Economic Offences. The order-sheet states that "the accused complains ill-treatment by the DRI stating that the Officers tied his leg and assaulted him and on account of this he sustained bleeding injuries sustained by him, he submitted that he bled from the nose only and stated that he has not sustained any bleeding injury on the body. Sri J. Jeshtmal files memo of appearance for the accused and also the bail application". The order-sheet further states that in view of the allegations made, the complainant agreed for the examination of the detenu by a Medical Officer. Accordingly the accused (detenu) was remanded to judicial custody with a direction to get the accused examined by a Medical Officer. To this, counsel for the accused, had also no objection. The medical report of the same date, viz. , 18-11-1986, does not disclose anything. It simply says that the detenu complained of pain in (R) and (L) shoulder and elbow joints as well as in both the lower limbs. No external injuries were seen. It further says that there was swelling and pain in ankle joints. It may be noted here that the order-sheet dated 19-11-1986 shows that the accused submitted "that he did not want to make any written complaint against the officials of the DRI". Thereafter, it is an admitted fact, the detenu was released on bail. No external injuries were seen. It further says that there was swelling and pain in ankle joints. It may be noted here that the order-sheet dated 19-11-1986 shows that the accused submitted "that he did not want to make any written complaint against the officials of the DRI". Thereafter, it is an admitted fact, the detenu was released on bail. ( 9 ) IT seems the surety wanted cancellation of the surety bond and therefore the detenu submitted himself for being held under judicial custody after the cancellation of the bail. The detention order dt. 18-2-1987 was served on the detenu when he was in judicial custody on 27-2-1987. It may be noted here that the cancellation of the bail and taking him into judicial custody and service of the impugned detention order were all of the same date. To complete the narration of the salient features of the investigation, it is relevant to point out that on 18-11-1986 the statement of K. V. Narayanamurthy, a partner of M/s. Rajatha Mahal was recorded. He denied any knowledge about the detenu. According to him, there were several customers in his shop on the previous day and no person came to the shop with gold. On 25-11-1986 the detenu was again summoned for examination under S. 108 of the Customs Act and the mahazar shows that the detenu refused to make any statement on the said date. The brother of the detenu -Suryaprakash - was questioned only on 11-12-1986 because, it is stated that he was not found earlier. His statements were recorded on 4 days. He denied any knowledge of the gold biscuits which were recovered from the detenu. He also denied that he had asked the detenu to sell foreign gold at any time. According to him, on 17-11-1986 he was away at Nanjangud to visit his mother's father and that he returned to Bangalore only on 26-11-1986. However, he stated that on his return, his brother Nagaraj told him that he was carrying gold biscuits and the Officers (DRI) apprehended him at that time. This statement of Suryaprakash, having gone to Nanjangud, was supported by the statement of his grand-father Muniyappa Setty. However, he stated that on his return, his brother Nagaraj told him that he was carrying gold biscuits and the Officers (DRI) apprehended him at that time. This statement of Suryaprakash, having gone to Nanjangud, was supported by the statement of his grand-father Muniyappa Setty. ( 10 ) ON 22-11-1986 the counsel for the detenu sent a notice to the Superintendent of DRI stating that his client was arrested on 17-11-1986 inside the shop premises of Rajatha Mahal and thereafter he was illegally detained and he was tortured and assaulted by the Officers causing severe injuries on his person. The notice further states that the signatures of the detenu were obtained on a number of documents without furnishing copies thereof. The notice also refers to the production of the detenu before the Court and the complaint made by him about torture etc. It further states that the detenu did not make any confessional statement before the Officers of DRI and that any statement recorded implicating the detenu in the commission of an offence will not be binding on him. There after a demand was made to furnish the copies of the mahazar and the statements immediately. ( 11 ) THE Asstt. Director, DRI, sent a reply to this letter of the counsel on 25-11-1986 denying the allegations made against the Officers of the Department. It was also pointed out that the detenu himself made a statement before the Special Court and he had stated that he was not making any written complaint against the Officers. On 25-11-1986 the detenu sent a telegram to the Dy. Director, DRI, stating that on the said day he was harassed and tortured by the DRI officials. He says in this, that 'office contents not explained'. Immediately the said Dy. Director sent a reply denying the allegations. Again on 18-12-1986 counsel for the detenu wrote to the Asstt. Director reiterating the contents of his earlier letter of 22-11-1986. Here, it is stated that the detenu did not make any complaint in writing to the Magistrate, against the Officers because the said Officers persuaded the detenu not to make any complaint against them in writing. Again there was an assertion that the signatures of the detenu were taken without disclosing the contents of the documents. There is also a statement that the detenu did not make any confessional statement. Again there was an assertion that the signatures of the detenu were taken without disclosing the contents of the documents. There is also a statement that the detenu did not make any confessional statement. A reply denying the allegations were sent by the DRI to the said letter on 29-12-1986. In this reply the Asstt. Director pointed out that even the medical report did not support the assertions of the detenu. It was pointed out that the detenu was making frantic efforts to build up his defence etc. In another letter dt. 15-11-1986 counsel for the detenu wrote to the Asstt. Director, DRI, demanding the statement of the detenu to be furnished and asserted that the detenu was not found with any gold and that he did not make any voluntary confessional statement before the Officers. This allegation was also denied by the Officer in his reply. ( 12 ) MR. Jeshtmal, learned counsel for the petitioner, questioned the legality of the detention order on six grounds, thus : (i) The detaining authority did not take into consideration the bail application dt. 18-11-1986 wherein the detenu had retracted from his confession statement and complained of non-furnishing of copies of relevant documents and statements and denied recovery of any contraband goods or materials from the detenu and alleged duress and coercion to obtain the statements. (ii) The order of detention was vitiated on the ground of non-application of mind because the order was clearly vague and uncertain as to the ground of detention. (iii) The detention order is vitiated as the detaining authority was not made aware of the detenu being already in jail, when the detention order was served on him. (iv) The Order of detention is obviously made to prevent the detenu from dealing in smuggled goods, but the order does not particularise the nature of the dealing that is sought to be prevented. (v) Since the seizure mahazar was not drawn on the spot and was attested by the stock witnesses, the order based thereon will have to be characterised as the result of relying on irrelevant material. (vi) The opinion of the goldsmith was irrelevant as to the purity and origin of the gold, since it is not based on any scientific data. (vi) The opinion of the goldsmith was irrelevant as to the purity and origin of the gold, since it is not based on any scientific data. ( 13 ) IN the course of his arguments, the learned counsel very fairly did not develop the last two grounds and therefore it is unnecessary to deal with the same. Re. Ground No. 1 :- ( 14 ) ADMITTEDLY the bail application dated 18-11-1986 was not placed before the detaining authority. This contention is found at paras 11 and 20 of the writ petition. In the statement of objection of the Special Secretary to the Government, Home Department, the same has been traversed in paras 17 to 19. The counter-affidavit of the State Government referred above points out that the detaining authority was aware of the factum of detenu having filed the bail application. The factum of filing bail , application was referred in the order-sheet of the Court, which has been relied upon by the detaining authority. The order-sheet clearly brings out the complaint of the the detenu about the ill-treatment as well as the medical report of the Doctor obtained by the Court. It is further stated that the detaining authority had before it the letter dt. 22-11-1986 written by the counsel for the detenu, the telegram of the detenu dt. 25-11-1986, another letter of the counsel dt. 18-12-1986 and the further letter of the counsel dt 15-1-1987, which contained the retractions of the detenu. It is also stated in the counter that the entire investigation records containing the bail application of the detenu in File No. SR. IV/136/86 was placed before the detaining authority. ( 15 ) THE contention of Mr. Jeshtmal is that the bail application was the earliest document in which the retraction was made. Because it is the earliest retraction, it is all the more important that it should be placed before the detaining authority and should be considered by it. He relies on several decisions of the Supreme Court pointing out that if material or vital parts are not considered by the detaining authority, the order of detention is liable to be set aside. He also referred to a few decisions wherein the detention orders were quashed by the Supreme Court because detaining authority failed to consider the retractions found in the respective bail applications. He also referred to a few decisions wherein the detention orders were quashed by the Supreme Court because detaining authority failed to consider the retractions found in the respective bail applications. To consider the question raised by the learned counsel, it is I necessary to consider these citations placed before us by him. ( 16 ) THE learned counsel laid great emphasis on the observations of the Supreme Court in Ashadevi v. K. Shivraj, AIR 1979 SC 447 , wherein, according to the learned counsel the Supreme Court quashed the detention order because the confessional statements were retracted at the first available opportunity and this retraction was not placed before the detaining authority. ( 17 ) IN the said case the detention order was under S. 3 (1) of the COFEPOSA Act. In. this case the detenu had sought the presence of his Advocate at the time of his interrogation. The Advocate had made a request on behalf of the detenu to be present before the Customs-Officers at the time of interrogating the detenu. However, this request was rejected. Thereafter, the said Advocate met the Officers and she was told that the detenu will be produced before the Magistrate on the said day at 5. 30 p. m. , but actually the detenu was not produced. Therefore, the counsel could not file the bail application. The detenu was produced before the Magistrate on the next day and was remanded to the Customs-custody for 5 days. Thereafter when he was produced before the Magistrate again, the bail was refused and he was remanded to judicial custody. After 2 days he was in custody, at the time of interrogation by the Customs Officers, the detenu refused to sign the documents and made an endorsement that his earlier statements were not correct. Thus the retraction from the confessional statement was for the first time made on the said date while in judicial custody. There is nothing to show that there was any other retraction of confessional statements. In the circumstances, the Supreme Court held that: (i) the denial of permission for the presence of the Advocate was based on misconception of the legal position and the said fact, that such a request was made and refused, was not intimated to the detaining authority. Therefore, the detaining authority had no occasion to consider this aspect of the case. In the circumstances, the Supreme Court held that: (i) the denial of permission for the presence of the Advocate was based on misconception of the legal position and the said fact, that such a request was made and refused, was not intimated to the detaining authority. Therefore, the detaining authority had no occasion to consider this aspect of the case. (ii) The detaining authority based its decision on the confessional statement but the retraction of the said statement was not known to the detaining authority because it was also not placed before it. It is in this background the Supreme Court observed at page451 (of AIR) thus: "questions whether the confessional statements recorded on Dec. 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on Dec. 22, 1977 was in the nature of an afterthought, where primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. " thus two vital facts were not placed before the detaining authority in the said case which vitiated the detention order. There was no other retraction in the said case. The decision was based on the circumstances of the said case. ( 18 ) THE next decision referred was in Sita Ram Somani v. State of Rajasthan, AIR 1986 SC 1072 . The order of detention was quashed here because the retraction of confessional statement found in the bail application was not placed before the detaining authority. The retraction of the confessional statement in the said case was found in the bail application as well as in certain representations made by him. None of these documents were placed before the detaining authority. Naturally the detaining authority had no occasion to consider the fact whether the detenu had retracted from his confessional statement. The retraction of the confessional statement in the said case was found in the bail application as well as in certain representations made by him. None of these documents were placed before the detaining authority. Naturally the detaining authority had no occasion to consider the fact whether the detenu had retracted from his confessional statement. The decision is not an authority for the proposition that in every case the bail application itself should be placed before the detaining authority. The decision of this Court in Prahalad v. State of Karnataka (WP. HC. 9/87 - D/- 7-4-1987) is again based on the facts of the said case wherein the retraction was found only in the bail application, which was not placed before the detaining authority. ( 19 ) THE learned counsel, to highlight the proposition advanced by him also relied upon three decisions reported in Khudiram Das v. State of West Bengal, AIR 1975 SC 550 ; in Suresh Mahato v. Dist. Magistrate, Burdwan, AIR 1975 SC 728 , and in Bablu Das v. State of West Bengal, AIR 1975 SC 1513 . In Khudiram Das case the Supreme Court stated that the grounds to be furnished to the detenu mean all the basic facts and materials which have been taken into account by the detaining authority and therefore all of them should be furnished to the detenu. Thereafter the scope of the Court's power to interfere with the detention order was elaborately discussed and we have already summarised the points in our recent decision in Shivaji v. State of Karnataka, ILR 1987 Kant 2011. The question before us is, whether any of the principles stated therein can be invoked by the petitioner to challenge the present detention order and we find the answer to be in the negative. ( 20 ) IN Suresh Mahato case AIR 1975 SC 728 , it was held that the pendency of criminal cases against the detenu was a very material circumstance to be considered by the detaining authority. The said decision also states that if the criminal cases were dropped and the petitioner was discharged before making the order of detention, it was not a material fact which ought to have been placed before the District Magistrate. It is not understandable as to how this decision helps any of the contentions of the petitioner in this case. The said decision also states that if the criminal cases were dropped and the petitioner was discharged before making the order of detention, it was not a material fact which ought to have been placed before the District Magistrate. It is not understandable as to how this decision helps any of the contentions of the petitioner in this case. ( 21 ) THE next decision is of Bablu Das, AIR 1975 SC 1513 . It was held that while detaining a person under the Maintenance of Internal Security Act the detaining authority relied upon the history sheet of the detenu, though the grounds of detention communicated to the detenu; mentioned only one incident of wagon breaking. The history sheet contained other damaging materials against the petitioner, which must have made its own impact on the detaining authority. Therefore, failure to communicate this aspect of the case vitiated the detention order. Again this decision has nothing to do with the question involved in the case on hand. ( 22 ) THE learned counsel also furnished a list of few more citations, which according to I us are not relevant to the point at issue. ( 23 ) IN Anant Sakharam Raut v. State of Maharashtra, AIR 1987 SC 137 the detaining authority was not made aware of the fact that the detenu had moved applications for bail and that he was enlarged on bail and that the detenu was an undertrial prisoner. Since these vital facts were not placed before the detaining authority, on the facts of the said case, the detention order made under National Security Act was set aside. The decision is squarely based on the facts of the said case. The decision in Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi, AIR 1987 SC 1192 , is again based on the facts of the said case. The Supreme Court observed that the return filed on behalf of the respondents to the writ petition was not a proper one and on facts of the said case it was held that the detenu had no proper opportunity to make representation against the detention order because the detenu had no knowledge of English, the language in which the order was communicated to him. The fact that the wife of the detenu knew English was held to be irrelevant and it is in this context the Supreme Court said that "in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. " In the next case, viz. , in Union of India v. Manoharlal Narang, AIR 1987 SC 1472 , again the decision rested on the facts of the said case. The basis for the impugned action was common in respect of Ramlal and Manoharlal. The Supreme Court had permitted Ramlal to be at large on certain conditions. This order of the Supreme Court was not considered by the detaining authority, which according to the Supreme Court, was a very relevant material before passing the order of detention. When the Supreme Court itself had permitted him free movement, normally the detaining authority would have thought it fit not to apply the law of preventive detention once again, was the ratio of the decision of the Supreme Court. Therefore, failure to consider this vital and relevant material vitiated the order of detention. 23a. There is no doubt that the detaining authority has to consider the material or vital facts before making an order of detention. The documents by themselves are not the vital facts. They evidence the existence of such materials or vital facts. Therefore, failure to consider a particular document cannot be equated to the failure to consider a vital fact, if such a fact was considered by other means. This aspect is clear from the decision in Bhawarlal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541 . In the said case, in the course of investigation, apart from the detenu, four other persons made statements incriminating the detenu. However, the said four persons retracted from their statements, thus in effect the statements implicating the detenu were withdrawn, long before the order of detention. These withdrawal statements were not placed before the detaining authority. This was one of the grounds under which the detention order therein was challenged. However, the said four persons retracted from their statements, thus in effect the statements implicating the detenu were withdrawn, long before the order of detention. These withdrawal statements were not placed before the detaining authority. This was one of the grounds under which the detention order therein was challenged. At para-7 of the decision, the Supreme Court negatived this contention thus :"the proposition that the failure to place before the detaining authority relevant and material facts which may influence the mind of such authority one way or the other will vitiate the order of detention is unexceptionable. But a perusal of the first ground of detention shows that the detaining authority took into consideration the circumstance that there were adjudication proceedings that the currency was confiscated and that a penalty of Rs. 5,000/- was imposed on the detenu. It was not disputed and it was not alleged in the petition that the order of adjudication by which the currency was confiscated and penalty was imposed did refer to the circumstance that persons who had made incriminating statements against the detenu had resiled from those statements. The circumstance that persons who had earlier incriminated the detenu had later resiled from those statements was therefore, before the detaining authority. There is thus no factual foundation for this submission of the learned counsel, which we accordingly reject". ( 24 ) THE failure to place the actual statements by which earlier statements were resiled, was held to be immaterial by the Supreme Court. The fact of retraction, so long as it was considered was held to be sufficient. ( 25 ) THIS view also has been stated by this Court in Mohanlal T. Rathod v. State of Karnataka (W. P. No. HC. 151/1986 - D/-7-4-1987) to which one of us (CJ) was a party. It was observed therein thus :"what is relevant is the factum of retraction given on 31-5-1985 which was very much in the mind of the detaining authority for his subjective satisfaction before he formed an opinion to detain the petitioner, and as such non-mention of the bail application dt. 30-5-1986 in the grounds of detention and the said application not being on record before the detaining authority does not have much significance. 30-5-1986 in the grounds of detention and the said application not being on record before the detaining authority does not have much significance. Admittedly there was only one retraction which was first stated in the bail application in a vague manner, but on the very next day, i. e. , 31-5-1986, the petitioner retracted his voluntary statement in a much more detailed manner. Therefore, the relevant material regarding the retraction by the petitioner was very much before the detaining authority, which has been referred to by it in its grounds of detention and considered. Hence there is no merit in this contention. The proposition that failure to place before the detaining authority relevant and material facts which may influence the mind of such authority in one way or the other will vitiate the order of detention, is unexceptionable. But a perusal of the grounds of detention shows that the detaining authority took into consideration all the circumstances including the retraction of the voluntary statement before forming its subjective satisfaction regarding the necessity to detain the petitioner under the COFEPOSA Act". ( 26 ) AN examination of the facts of the present case clearly shows that the detaining authority had before it the fact that the detenu had resiled from his confessional statement. In fact, the documents placed before the detaining authority brings out the basis of retraction more emphatically than the one stated in the bail application. A copy of the bail application placed before us shows the averment therein, in this regard, is too general. The bail application does not refer to the nature of duress and coercion. But the order-sheet refers to the complaint of the alleged assault made on the detenu by the Officers as also to the bleeding injuries which naturally implies an insinuation that the detenu would not have made any voluntary confessional statement. These allegations were repeated by the various letters of the counsel of the detenu addressed to the Officers. There was also the telegram sent by the detenu regarding the alleged harassment made on 26-11-1986. Thus, the factum of retraction of the confessional statement, was certainly before the detaining authority and therefore in arriving at his subjective satisfaction, it cannot be said that there was a failure to consider this vital fact. The contention urged in this regard will have to be rejected, and accordingly we reject it. Thus, the factum of retraction of the confessional statement, was certainly before the detaining authority and therefore in arriving at his subjective satisfaction, it cannot be said that there was a failure to consider this vital fact. The contention urged in this regard will have to be rejected, and accordingly we reject it. ( 27 ) THE next ground of attack is based on the language used in the detention order. The order says that with a view to preventing the detenu "from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods" it was necessary to make the said order. According to Mr. Jeshtmal there is an element of uncertainty in this order because the authority is not certain as to whether the order is to prevent the detenu dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. According to him, the disjunctive word 'or' repeated in the order results in the above uncertainty and therefore the order will have to be set aside. He relies on the decisions of the Supreme Court in this connection, in Kishori Mohan Bera v. State of West Bengal, AIR 1972 SC 1749 ; in Akshoy Konai v. State of West Bengal, AIR 1973 SC 300 , and a decision of this Court in Smt. S. Krishnaveni v. State of Karnataka, ILR (1975) Kant 928. ( 28 ) IN Kishori Mohan Bera's case, the detention order was under the Maintenance of Internal Security Act. The order stated that it was necessary to do so with a view to preventing the detenu "acting in any manner prejudicial to the maintenance of the public order or security of the State". Thus two alternative positive acts on the part of the detenu were contemplated for the detention order. It was not possible to say which was the particular positive act attributed to the detenu. If both the acts were attributed to the detenu, then the word would have been 'and' and not a disjunctive 'or'. The decision, is thus, based on the facts of the said case, as is clearly brought out by the aforesaid relevant sentence in the order of detention. ( 29 ) THE position is almost the same in Akshoy Konai case (1974 Cri LJ 405) (SC ). Here also two alternative positive acts were alternatively attributed to the detenu. The decision, is thus, based on the facts of the said case, as is clearly brought out by the aforesaid relevant sentence in the order of detention. ( 29 ) THE position is almost the same in Akshoy Konai case (1974 Cri LJ 405) (SC ). Here also two alternative positive acts were alternatively attributed to the detenu. ( 30 ) IN Krishnaveni's case (1975 Cri LJ 1363) (Kant) the order of detention was under the then Maintenance of Internal Security Act, 1971. Here again the order stated that it was necessary to prevent the detenu "from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him smuggling goods or abetting other persons to smuggle goods or dealing in smuggled goods". Thus the order of detention did not particularise the activity against which the preventive action was taken. It is in this circumstance, the Court struck down the order of detention. Whether all the acts were taken cumulatively or each of them alone was to be -the basis of the order, cannot be discovered in such a case. Each activity by itself is a distinct ground of detention. ( 31 ) MEETING this contention of the petitioner, the learned Advocate General submitted that when a ground of detention is made under S. 3 (1) (iv) of the COFEPOSA Act, the repetition of the wording of said sub-clause of Sec. 3 cannot result in making the order a vague and unspecified order. The said sub-clause contemplates a particular aspect of dealing in smuggled goods. Three aspects of engaging in smuggled goods, referred alternatively in S. 3 (1) (iii) are transporting, concealing or keeping the smuggled goods. There may be other categories of activities coming within the concept of dealing in smuggled goods. They fall under sub-cl. (iv); that is why, the said sub-cl. (iv) excludes the content of Cl. (iii) by stating that "dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods". When this language is repeated in the order of detention, it is clear that the offending activity is the one that comes under this sub-cl. (iv ). If the conjunctive word 'and' is used instead of a disjunctive word 'or' while invoking the power under this sub-cl. (iv), the order will be nowhere and will lead to uncertainty. When this language is repeated in the order of detention, it is clear that the offending activity is the one that comes under this sub-cl. (iv ). If the conjunctive word 'and' is used instead of a disjunctive word 'or' while invoking the power under this sub-cl. (iv), the order will be nowhere and will lead to uncertainty. For example, if it is stated that it was necessary to prevent a person from dealing in smuggled goods otherwise than by engaging in transporting, concealing and keeping smuggled goods, a possible argument will be that the order attributes at least two categories of dealing, resulting in vagueness. The learned Advocate General placed before us an unreported decision of the Delhi High Court in Khem Chand v. Administrator (Lt. Governor) (W. P. No. 15/78 - D/-3-5-1978 ). An order of detention based on an identical language was upheld rejecting a similar contention as is now advanced by Sri Jeshtmal in Khem Chand's case thus :"the order is passed in terms of S. 3 (1) (iv) of the COFEPOSA. It is argued that it mechanically copies the language of the statute showing that the authority did not apply its mind to the facts of the case. On the contrary, it appears to us that by following the language of S. 3 (1) (iv) the authority has shown that the particular mode of dealing in smuggled gold alleged in the grounds by the detaining authority excludes transporting or concealing or keeping smuggled goods. That is to say, the activity alleged against the petitioner is confined to such dealing as would amount to selling or exchange of gold with a view to make profit out of such sale or exchange. Section 3 (1) (iv) is so worded as to make the ambit of the dealing narrower than the ordinary meaning of the word "dealing". ( 32 ) IN fact in a decision of this Court rendered on 19-12-1984 in Anand Ganpati Yadav alias Jadhav v. State of Karnataka (W. P. No. 131/1984) the order of detention made under S. 3 (1) (iv), used the conjunctive word 'and'. This rendered the order of detention invalid. ( 33 ) THE contention of the learned counsel for the petitioner, according to us, is opposed to the English grammar. This rendered the order of detention invalid. ( 33 ) THE contention of the learned counsel for the petitioner, according to us, is opposed to the English grammar. When words of exclusion are used from the main clause of a sentence it is but natural to use the disjunctive word 'or'. All the various subjects referred independently after the word 'or' get excluded from the main clause. The attack of vagueness and uncertainty, has thus to be repelled. Accordingly this contention of the learned counsel also is rejected. ( 34 ) BEFORE going to the third point, since we are dealing with the language of S. 3 (1) (iv) the 4th point may be dealt with immediately hereafter. ( 35 ) THE contention of the learned counsel for the petitioner is that the concept of dealing involves some transaction such as a retail sale or transfer of goods. The dealing involves several activities. It is necessary to particularise the activity which will have to be prevented by detaining the petitioner. A reference to the word 'dealing' in general brings in such a vast area of activity, that will, again, render the order invalid for uncertainty. According to Mr. Jeshtmal, the nature of the dealing will have to be stated as observed by the Supreme Court in the decision in Munshi Singh v. Union of India, AIR 1973 SC 1150 . The said case arose out of land acquisition proceedings. The Supreme Court struck down S. 4 (1) notification which stated that the land was needed for the development of the area; the Supreme Court held that the notification failed to give some definite indication and particularised the purpose of acquisition so as to enable the concerned persons to file objections. This citation will have to be referred only to be rejected as inapplicable. In the said case the concerned persons were not made aware of, or shown, the scheme or the master-plan in regard to the development which resulted in the denial of an opportunity to file objections effectively. ( 36 ) IN the decision rendered in K. Hemraj Jain v. State of Karnataka (W. P. No. 1219 of 1975 - D/-2-5-1975) it was held by this Court that mere sending of gold pellets by the detenu through his son to the residents of some-one-else, cannot be held to be 'dealing'. ( 36 ) IN the decision rendered in K. Hemraj Jain v. State of Karnataka (W. P. No. 1219 of 1975 - D/-2-5-1975) it was held by this Court that mere sending of gold pellets by the detenu through his son to the residents of some-one-else, cannot be held to be 'dealing'. Relying upon this, it was argued that the detenu here was only carrying the gold pellets and therefore he cannot be detained to prevent him from 'dealing' referred in S. 3 (1) (iv ). On the other hand, learned Advocate General relied on a decision of the Calcutta High Court in Jayantibhai Patel v. Secretary, Home Department, Government of West Bengal 1976 Cri LJ 783, in which a Division Bench of the Calcutta High Court at para-8 points out that the expression 'dealing' under the COFEPOSA Act was not defined and therefore one has to resort to the Dictionaries. Para 8 of the said decision reads :-"but it is quite clear that though there are other meanings, it also includes 'concerned oneself, to have to do in any way'. The expression 'dealing' also came up for consideration before the Supreme Court in the case of Asst. Collector of Customs, Calcutta v. Sitaram reported in AIR 1966 SC 955 . In that case the Supreme Court was concerned with, amongst others, the ambit of the words 'in any way concerned in any manner dealing with any goods with respect to the importation of which any prohibition or restriction is for the time being in force as aforesaid' as referred to in S. 167 (8) of the Sea Customs Act, 1878 (old Act ). The Supreme Court held that the words 'in any way concerned in any manner dealing with prohibited goods', are of very wide import and that it is neither desirable nor necessary to define all manner of connections with the prohibited goods which might come within the meaning of these words. It was observed that it would depend on the facts found in each case whether it can be said that any person is concerned in dealing with such goods". ( 37 ) ONE of the meanings given to the word 'dealing' in Webster's New Collegiate Dictionary is "to engage in bargaining, to sell or distribute something as a business". It was observed that it would depend on the facts found in each case whether it can be said that any person is concerned in dealing with such goods". ( 37 ) ONE of the meanings given to the word 'dealing' in Webster's New Collegiate Dictionary is "to engage in bargaining, to sell or distribute something as a business". ( 38 ) THE word used by the Parliament, will have to be understood in the context of the legislation, the purpose for which the law is enacted and the mischief sought to be eradicated by the legislation. The preamble to the Act highlights the great mischief that is sought to be remedied by the Act Inter alia, the preamble states, -"and whereas having regard to the persons by whom and manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith; (underlining is ours) ( 39 ) IT is needless to state that the smuggling activity involves clandestine operations and for its successful functioning various links are necessary; not only bringing of the contraband goods into India but also aiding the subsequent operations so that the goods may reach the purchasers or the consumers, successfully, are necessary. Whoever knowingly partakes in any of the activities will have to be prevented from indulging in such an activity so that the object of the Act can be achieved. It is in this background the word 'dealing' used in S. 3 (1) (iv) will have to be construed and if so construed, it will net in any activity by which the contraband goods are carried for illegal purposes. ( 40 ) IN this case, even a narrower meaning given to the word 'dealing' will cover the case of the detenu. In his statement made under S. 108 of the Customs Act, he has clearly admitted that he was selling the foreign gold He has admitted that the business run by the detenu was that of himself and his brother Suryaprakash. He states having sold the foreign marking gold biscuits so many times, to so many persons, earlier. In his statement made under S. 108 of the Customs Act, he has clearly admitted that he was selling the foreign gold He has admitted that the business run by the detenu was that of himself and his brother Suryaprakash. He states having sold the foreign marking gold biscuits so many times, to so many persons, earlier. Though at one stage he stated that he was selling the gold biscuits as per his brother's instructions, the statement brings out that the negotiations were being conducted by the detenu and he was completing the sale transactions. Therefore, it cannot be said that he was not dealing in the smuggled gold. His case squarely falls under S. 3 (1) (iv) of the Act. No further particularisation is necessary. ( 41 ) THE third point urged by Mr. Jeshtmal is based on the decision of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad, Bihar AIR 1986 SC 2090 . Mr. Jeshtmal pointed out that the detention order was served while the detenu was already in judicial custody and the detaining authority did not consider the fact that the detenu was already in judicial custody. He argued that the Officers, who implemented the order of detention should have gone back and informed the detaining authority of this fact of the detenu being already in jail. ( 42 ) IN Binod Singh case (1986 Cri LJ 1959) (SC) referred above, the proceedings arose out of the detention made under the provisions of the National Security Act. In view of the criminality of the detenu disclosed from several cases, an order of detention was made. The detenu was originally absconding. He had surrendered for being kept in Jail in another criminal case arising out of a 'murder' charge against him. While he was in jail, the impugned order of detention was served. There was a statement in the order stating that the person was already in jail and was likely to be enlarged on bail and therefore the detention order was served on him. The Supreme Court held that there was no application of mind by the detaining authority on the question whether the detenu was likely to be enlarged on bail. There was a statement in the order stating that the person was already in jail and was likely to be enlarged on bail and therefore the detention order was served on him. The Supreme Court held that there was no application of mind by the detaining authority on the question whether the detenu was likely to be enlarged on bail. It was observed as follows :"from the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decisions in Rameshwar Shaw v. District Magistrate, Burdwan (1964) 4 SCR 921 : AIR 1964 SC 334 , and Ramesh Yadav v. Dist. Magistrate, Etah (1985) 4 SCC 232 : AIR 1986 SC 315 , though there was a statement to the effect that the petitioner was in jail and was likely to be enlarged on bail. But on what consideration that opinion was expressed is not indicated especially in view, of the fact that the detenu was detained in a murder charge in the background of the facts mentioned before. His application for bail could have been opposed on cogent materials before the Court of justice". (Underlining is ours) ( 43 ) REPEATEDLY Supreme Court observed that there was no consideration of the fact whether he was likely to be released on bail. In para 7 it was observed that if a man was in custody and there was no imminent possibility of his being released, the power of preventive detention should not be exercised. In the concluding para of the judgment at para 9 it is further stated that if, however, the detenu is released on bail in the aforesaid criminal cases, the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with law. The detenu in the said case was under custody, on a charge of having committed murder. The basis of the detention order was the alleged criminality of the detenu. The possibility of release of a person in custody on a murder charge is very remote. The detenu in the said case was under custody, on a charge of having committed murder. The basis of the detention order was the alleged criminality of the detenu. The possibility of release of a person in custody on a murder charge is very remote. It is in these circumstances, the Supreme Court held that the detaining authority did not consider the question properly. ( 44 ) IN the present case the Special Court of Economic Offences had already released the detenu on bail on certain conditions. One such condition was the furnishing of surety. The writ petition states that one Smt. Anasuyamma was the surety. The said surety wanted to dispose of her property and therefore sought her discharge as a surety. It is on this basis the bail was cancelled and the detenu entered the jail on 27-2-1987. The same day he was served with the impugned detention order. It is obvious that the judicial custody of the detenu in this case was only temporary in nature. Any moment he could have been released on bail by another surety forthcoming to satisfy the conditions imposed by the Special Court. Unlike the facts of the case before the Supreme Court, here there was an imminent possibilityof his release on bail. In these circumstances, this contention of Mr. Jeshtmal also cannot be accepted. ( 45 ) AS already stated, the other two contentions were not seriously argued and even otherwise we do not find any reason to accept the said contentions stated in the writ petition. The fact that the gold is of a foreign origin is brought out not only in the statement of the goldsmith but also in the statement of the detenu himself. In the very nature of things, it was not possible to start the writing of the Mahazar on the road side and continue the same after reaching the office of the DRI at Indiranagar. The same witnesses accompanied the detenu and the Officers and were present throughout as is reflected in the mahazar. It is also not possible to hold that the witnesses were 'stock witnesses'. Hence, the learned counsel was justified in not pursuing these contentions. ( 46 ) IN view of the foregoing reasons, this writ petition fails and is dismissed. Petition dismissed. --- *** --- .