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1989 DIGILAW 454 (MAD)

Kunbudeen Ali Bhoy v. State of Tamil Nadu

1989-09-18

ARUNACHALAM, SIVASUBRAMANIAM

body1989
JUDGMENT Sivasubramaniam, J. : - This writ petition has been filed for issue of a writ of habeas corpus to quash the order of detention passed by the respondent in G.O.SR.1/1317-2/88, Public (S.C.) Department, dated 12.10.1988 and to set at liberty the detenu Kunubudeen Ali Bhoy son of Ali Bhoy Abdul Ali, presently undergoing detention in Central Prison, Madras. 2. The short facts leading to the passing of the impugned order of detention are as follows: The detenu was a passenger in the Indian Airlines flight from Calcutta to Madras on 2.10.1988. He carried one Echolack briefcase and on certain information he was intercepted by the Madras Customs Officers at the exit gate. His brief case was searched and found to contain gold biscuits of foreign origin in six pouches each containing 10 gold biscuits. He stated that he is a Sri Lankan dealing in re-conditioned car, that one Abdul Kader used to frequent his shop for the purchase of reconditioned car, that he suggested to the detenu that he should remove the gold bars concealed in the toilet of Indian Airlines and deliver the same to him, that he left for Calcutta from Madras on 1.10.1988 and booked a return flight on 2.10.1988, that he boarded the plane at Calcutta and took the gold bars from the airport and that he was caught when he was coming. The detenu was arrested on 3.10.1988 and the bail application filed by him was dismissed on 10.10.1988. After further investigation, the impugned detention order was passed on 12.10.1988 under the provisions of Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing the detenu from smuggling goods. 3. The detenu himself has filed this writ petition. Even though he has raised several grounds, in affidavit filed in support of this writ petition, Mr.B.Kumar, learned counsel appearing for the petitioner confined his arguments to the following points: 1. The activity alleged against the petitioner cannot amount to smuggling within the meaning of the Act and therefore the allegation that the detenu had smuggled goods and the order of detention has been made under Sec.3(1)(i) of the Act will betray total non-application of mind; 2. The activity alleged against the petitioner cannot amount to smuggling within the meaning of the Act and therefore the allegation that the detenu had smuggled goods and the order of detention has been made under Sec.3(1)(i) of the Act will betray total non-application of mind; 2. The order of detention is merely to prevent the detenu from smuggling goods whereas the grounds of detention in paragraph 8 state that the detenu indulged in smuggling and transporting the above contraband gold bars; and 3. Whereas the order of detention is made on one ground and if the grounds of detention are sought to be supported on more than one ground, that itself will vitiate the detention. 4. A counter affidavit has been filed repudiating the averments made in the petitioner's affidavit. 5. While dealing with the first point, initially we felt that the definition found in Sec.2(e) of the COFEPOSA Act read with Sec.2(39) and Sec.111 of the Indian Customs Act would be an answer for the point. According to Mr.G.Krishnamoorthy, the learned Additional Public Prosecutor appearing for the respondent, the terms ‘smuggling goods’ has a very wide meaning in the light of the provisions found in the Customs Act. It is no doubt true that a reading of the abovesaid two definitions would take in all activities connected with smuggling including transporting, storing, etc. Therefore, we have to find out whether we have to confine our consideration to the specific provisions contained in the COFEPOSA Act or we can bring in the definition of “smuggling” found in the Customs Act. Even though it appears to be permissible, we find that Sec.3(1) of the Act has prescribed certain specific grounds under which alone detention orders are being passed. Sec.3(1) consists of four sub-clauses, classifying and covering the different activities in connection with the smuggled goods. Even though it appears to be permissible, we find that Sec.3(1) of the Act has prescribed certain specific grounds under which alone detention orders are being passed. Sec.3(1) consists of four sub-clauses, classifying and covering the different activities in connection with the smuggled goods. Let us now have a look at Sec.3(1) of the COFEPOSA Act which reads as follows: “Power to make orders detaining certain persons: (1) The Central Government or the State Government or any Officer of the Central Government, not below the rank of a Joint Secretary to the Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may 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 smuggling goods, or (iv) 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 goods, it is necessary to do, make an order directing that such person be detained.” Sub-clause (i) deals with the smuggling of goods and Sub-clause (ii) pertains to the abetting of the smuggling of goods. Sub-clause (iii) refers to the transportation and other activities in respect of smuggled goods, while Sub-clause (iv) deals with harbouring the persons engaged in smuggling of goods or harbouring persons engaged in abetting the smuggling of goods. Therefore, the plain reading of the said section shows that the activities are divided into four separate compartments, each dealing with a specific activity connected with smuggling. On the other hand, we find from the definition of “smuggling” found in the Customs Act that almost all the abovesaid activities would come under the definition of “smuggling”. If that is the apparent position, there is no reason why the Parliament has chosen to divide the smuggling activities into four distinct and definite clauses. This shows that the Parliament did not intend to proceed on the basis of the general definition of “smuggling”. If that is the apparent position, there is no reason why the Parliament has chosen to divide the smuggling activities into four distinct and definite clauses. This shows that the Parliament did not intend to proceed on the basis of the general definition of “smuggling”. But on the other hand, restricted the operation of Sec.3(1) of the COFEPOSA Act to 4 different specified activities therein. If such an approach is made, the subsequent act of transporting may not come under the definition of “smuggling” found in the first clause. Though the subsequent activity of transporting the smuggled goods and disposing the same may amount to activities connected with smuggling, they cannot be treated as acts of smuggling as per the provisions contained in Sec.3(1) of the COFEPOSA Act. The Act treats the said activities as not part of the act of smuggling. 6. On this aspect, for the first time, the Calcutta High Court in Sukat Ali Biswas v. State of West Bengal and others Sukat Ali Biswas v. State of West Bengal and others (1976)1 Crl.L.J. 28 held that there is a clear distinction between the earlier act of smuggling and the subsequent act pertaining to the transportation of the goods within the country and disposing the same. The Calcutta High Court held as follows: “Therefore it must be assumed that the intention of the legislature was to treat the transporting of smuggled goods as a ground separate from smuggling of goods as such. It is true that some kind of transportation is involved in smuggling of goods but as already stated that cannot amount to engagement in transporting of smuggled goods. The intention of the legislature is also made clear by making separate provisions regarding the same. Therefore, smuggling of goods cannot by itself amount to engagement in transporting the smuggled goods.” A Bench of the Karnataka High Court in Deelip V.Telisra v. Government of India by Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi and another, W.P.No.8 of 1989, dated 26.6.1989 rejecting the other line of reasoning, proceeded on the basis that if the said contention reflects the real approach of the Parliament in enacting Sec.3(1) of the Act, Sec.3(1)(i) alone would be sufficient to cover all the situations stated in Sub-clauses (i) to (iv) of the said section. The Bench further held that the very fact that the Parliament has chosen to divide the different activities into several categories under Sec.3(1)(i) to Sec.3(1)(iv) shows that they are different concepts against which the law aims to strike at. 7. We find that these two decisions have correctly interpreted the scope of Sec.3(1) of the Act and therefore, we adopt the same reasoning and hold that the act of transporting will not come under Clause (i) of Sec.3 of the Act Bearing the abovesaid principles, let us now consider the facts of the present case. The impugned order of detention has been passed under Sec.3(1)(i) of the Act with a view to preventing the detenu from smuggling goods. A reading of the grounds of detention shows that the detenu was intercepted at the Madras Airport by the Customs Officers who seized gold from him. This shows that the detenu was transporting the smuggled gold as the act of smuggling was already complete as, according to the respondent, the gold was concealed in the toilet of the Indian Airlines and one Abdul Kader instructed the detenu to remove the gold bars Concealed in the toilet and deliver the same to Abdul Kader on arrival at Madras for a monetary consideration of Rs.100 per bar. It shows that he was not connected with the actual smuggling of gold from Colombo to Madras on 24.9.1988. As per the facts set out in the grounds of detention, the detenu was engaged in transporting the smuggled gold from Calcutta to Madras. Therefore, on the basis of the above interpretation given to Sec.3(1) of the Act, we have to come to the conclusion that Sec.3(1), Sub-clause (i) of the Act is not attracted. In the result, the only inference that could be drawn is that the detaining authority has certainly not applied his mind to the statutory provisions and to the facts of the case properly, resulting in a total misdirection in arriving at his satisfaction. The impugned order passed as a result of non-application of the mind is, therefore liable to be quashed. 8. In view of the fact that we have agreed with the contentions raised by the learned counsel for the petitioner on the first point, it is unnecessary for us to decide the other points on merits. 9. In the result, this writ petition is allowed. 8. In view of the fact that we have agreed with the contentions raised by the learned counsel for the petitioner on the first point, it is unnecessary for us to decide the other points on merits. 9. In the result, this writ petition is allowed. The impugned order of detention is set aside and the detenu is directed to be set at free, provided he is not required in any other case. B.S. ----- Petition allowed.