Om Prakash v. State Of Bihar — 1990 DIGILAW 161 (PAT)

Judgment S.C.Mookherji, J. 1. The petitioner Om Prakash has questioned the legality and of the order of detention made on 21st August, 1989 by Home (Special) of the State Government under Sec. 3 (i)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act), the order of confirmation dated 19.12.1989, communicated to the petitioner on 15.12.1989 whereby and whereunder, he has been ordered to be detained from 19.9.1989 to 18.9.1990 and accordingly, the petitioner seeks a writ of hebeas corpus. 2. It is stated, inter alia, that the petitioner, a co-owner of a truck, gone to Siliguri, left the truck in the custody of the driver Sukhbir Singh and had gone to Mering for sight seeing. The driver was directed to book another cargo for return journey, who accordingly contacted Transport agent for another cargo and truck was loaded with the bundles of empty gunny bags for Bombay. On his return from sight seeing he found his truck loaded and the consignment papers were received by the driver. The petitioner had at that stage no knowledge about the mischief having been done by the loading agent. On way, the truck was intercepted on 7.1.1989 and checked by the Custom officials of Khagaria when only he could know that in the guise of bundles of gunny bags, contraband materials of polyster texterise yarn worth Rs, 5,70,000 were loaded in the truck. The petitioner was accordingly arrested and taken to custom office, Khagaria where he was made to sign on several blank papers and thereafter, forwarded to judicial custody on 9.2.1989 and he was remanded to Central Jail, Muzaffarpur by the order of the Chief Judicial Magistrate, Muzaffarpur. 3. Subsequently, a criminal proceculion was started against him in the special court (Economic Offence) Muzaffarpur in Custom case No. 13 of 1989 and his prayer for bail was rejected by the Special Court, whereupon he tiled another bail application in the court of Sessions Judge, Muzaffarpur which also received the same fate. The petitioner against that order, moved this Court in Cr. Misc. No. 6877 of 1989 and the same was dismissed on 17.7.1989 with some observations. 4. The petitioner against that order, moved this Court in Cr. Misc. No. 6877 of 1989 and the same was dismissed on 17.7.1989 with some observations. 4. The petitioner further stated that the sanction for his prosecution under Sec. 135 (i)(b) of the Customs Act was accorded, by the Collector, Customs on 22.5.1989 and the trial (No. 2027 of 1989) proceeded, wherein two witnesses were examined. On 19.9.1989 he was served with detention order dated 21.8.1989 passed by the State Government in the department of Home (Special), both in English and Hindi along with the grounds of detention and some other documents namely, the seizure report dated 7.2.1989, the brief facts of the substantive case and the alleged confessioal statement of the petitioner as contained in annexure-1. On 3.11.1989 he was supplied with an order dated 2.11.1989 passed by the State Government whereby he was in formed that his case had been referred to Advisory Board under Sec. 8(c) of the COFEPOSA Act. On 15.12.1989 he was served with another order passed by the State Government in exercise of the power under Sec. 8(f) and 10 of the COFEPOSA Act, whereunder he was informed that he was detained under Sec. 3(i) of the COFEPOSA Act for one year till 18.9.90. By this order although he was detained by an order dated 21.8.89, the detention was counted with effect from 19.9.89 till 18.9.90 (Annexure-3). 5. The petitioner filed another bail application in Custom Case No. 13 of 1989 in this Court being Cr. Misc. No. 11692 of 1989 and he was granted bail on 13.11.89 (Annexure-4). On these grounds, the detention order has been challenged as being against the provisions of law and in violation of his fundamental rights. 6. In the counter-affidavit filed on behalf of Collector, Custom Indo Nepal Border, Patna it is stated inter alia, that the truck of which the petitioner was the co-owner was intercepted by the Custom Department and a large number of foreign goods while in the process of smuggling, were found in it and thereafter, a substantive case was instituted against him. The order of detention under COFEPOSA Act although passed against him on 21.8.89, it was in fact served upon him on 19.9.89 and therefore, one years time for his detention has rightly been counted from 19.9.89. The legality of the order of detention questioned by the petitioner has been seriously challenged. 7. The order of detention under COFEPOSA Act although passed against him on 21.8.89, it was in fact served upon him on 19.9.89 and therefore, one years time for his detention has rightly been counted from 19.9.89. The legality of the order of detention questioned by the petitioner has been seriously challenged. 7. In the counter-affidavit filed on behalf of the State of Bihar in the department of Home (Special, it is stated that the petitioner was present in the truck when it was intercepted and on search, the custom authorities detected polyster texterise yarn worth Rs. 5,70,000 kept concealed in bundles of gunny bags. Some other facts have also been stated but they are not very relevant for the purpose of deciding this case. The Custom Department by its letter dated 3.7.89 informed the State Government that the petitioner was likely to be released on bail and on a consideration of the modus operand of the petitioner, it was felt that if he was left free the would indulge himself in any manner prejudical to the maintenance of smuggling activities and accordingly, detention order along with grounds and relevant documents were served upon him in jail while he was in detention in connection with the custom case instituted earlier. The petitioner by virtue of the detention order was detained with effect from 19.9.89 and not with effect from 21.8.89 and hence, his period of detention should be counted from that date. There was no bar to detain a person while he was already in jail custody as the detaining authority was satisfied that the was likely to be released on bail and will again indulge in sumggling activities. 8. Sec. 3 of the COFEPOSA Act does not say that the grounds of detention should be served on the very day on which it was passed. The detention order no doubt, was passed and 21.8.89, but the said grounds of detention and other relevant papers were served on him on 19.9.89 while he was in jail custody and therefore, the validity of the detention order cannot be questioned on this score. The confirmation order was passed under Sub-sec. (f) of Sec. 8 read with Sec. 10 of the COFEPOSA Act and not under Sec. 3(i) of the Act and as such question of non-application of mind does not arise. The confirmation order was passed under Sub-sec. (f) of Sec. 8 read with Sec. 10 of the COFEPOSA Act and not under Sec. 3(i) of the Act and as such question of non-application of mind does not arise. A chart showing the time consumed from the date of recommendation till the issue of detention order has been annexed to this application. 9. The order of detention has been questioned mainly on the ground that although it was passed on 21.8.89 it was served on the petitioner after 27 days i.e. 19.9.89 and therefore, this order is illegal in view of Sec. 3(iii) of COFEPOSA Act read with Article 22(5) of the Constitution, because it is mandatory that it must be served within 5 days and not exceeding 15 days. There is some difficulty in accepting this argument. In this connection, it is relevant to quote Clause (3) to Sec. 3 of the COFEPOSA Act which is as follows: For the purpose of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. Constitutional imperative indicated in Article 22(5) the Constitution are that the detening authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu grounds on which the order of detention has been made (underline is mine). It is thus manifest that after the detention and from the date of detention, the grounds on which the order of detention has been made, shall be made available to the detenu not later than five days and in exceptional circumstances not later than fifteen days from the date of detention. 10. It is not in controversy that the petitioner was already detained in jail. It is true that the order of detention was passed on 21.8.89 but it was not served on that date. 10. It is not in controversy that the petitioner was already detained in jail. It is true that the order of detention was passed on 21.8.89 but it was not served on that date. In fact, the order of detention dated 21.8.89 came in force with effect from 19.9.89, on the day it was served on the petitioner together with the grounds and other relevant papers and therefore, the first point raised challenging the order of detention must fail. 11. The second branch of agreement is that there is only a solitary incident which has been made to be a ground of detention and therefore, from that solitary incident it cannot be presumed/inferred that the petitioner in the event of his release on bail, will repeat in smuggling activities. According to learned Counsel, the petitioner was duped by the Transport Company of Siliguri who surreptiously in the guise of empty gunny bags loaded foreign goods in the truck and in good faith he had agreed to transport the same from Siliguri to Bombay. Be that as it may, the facts remains that he is admittedly a co-owner and was carrying foreign goods of third country origin worth Rs. 5 lacs and odd and that truck was intercepted while it was going alongwith the petitioner in it. 12. The question of all questions is whether a single solitary act attributed to a person is sufficient to warrant an interference that he will repeat his activities in future also. These matters depend on the nature of the fact, attending and surrounding circumstance as has been held by the Supreme Court in Mrs. Saraswati V/s. State of Kerala and Anr. . That case was however in respect of an attempt to illegal export of Indian Currency but the principle laid down therein, squarely covers this case. In the instant case, there cannot be any controversy that foreign goods worth Rs. 5, lacs and odd were being smuggled which were kept concealed in the empty gunny bags. The explanation offered by the petitioner that he was duped by the sender on the face of it is untenable. It appears that in spite of singal by the Customs officials to stop the truck, the driver of the truck accelerated its speed and after a hot chase of four kilometre, the officials could intercept it alongwith two persons i.e. the petitioner and the driver. It appears that in spite of singal by the Customs officials to stop the truck, the driver of the truck accelerated its speed and after a hot chase of four kilometre, the officials could intercept it alongwith two persons i.e. the petitioner and the driver. It is thus manifest that the petitioner was fully aware that smuggled goods were being carried in his truck otherwise, he would have asked the driver to stop it to satisfy the officers of his bonafide. In his voluntary statement also the petitioner admitted the recovery of the foreign goods from his truck. The department referred the matter to the State Government and on a consideration of the same, Government passed the order of detention. The Advisory Board also opined that there was sufficient cause for detention of the detenu and thereafter, the State Government confirmed the order of detention and fixed the period of detention for one year with effect from 19.9.1989. 13. From the aforesaid facts and circumstances, an inference can safely be drawn that the petitioner detenu tried to take away the smuggled goods in a planned and premedicated manner by claverly concealing the smuggled goods in the bundless of gunny bags. This, therefore, fully justified the authority in coming to the conclusion that he might repeat his illegall activities in future also and therefore, his detention was necessary to preventing him from repeating the same activities in future as the petitioner, though in jail custody, was likely to be released on bail and that his past act in the circumstances might be an index of his future conduct. This contention, thus, also must fail. 14. This contention, thus, also must fail. 14. The third point that has been raised is that the order of detention is bad in law as it was passed by an Under Secretary of Home (Special) Department of the COFEPOSA Act has been referred which is as follows: The Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that 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 the Government, specially empowered for the purposes of this section by that Government person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation of augmentation of foreign exchange or with a view to preventing him from. This argument is wholly misconceived, in view of the fact, that the order of detention as contained in Annexure-1 passed by the order of the Governor of Bihar, is an authenticated one. Article 166 of the Constitution of India deals with the conduct of the Government Business. Clause (2) says that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall net be called in question on the ground that it is not an order or instrument made or executed by the Governor. There is no merit in this contention also. 15 Another branch of argument raised on behalf of the petitioner is that the detening authorities were not made aware at the time of passing of the detention order that the detenu was already in jail and no fresh grounds were disclosed to show that detenu if released on bail will repeat his acts prejudicial to the maintenance of smuggling activities. It is, accordingly, stated that there was a total absence of application of mind on the part of the datening authority while passing the order. In support of this, a decision of the Supreme Court reported in AIR 1989 SC 2265 (Abdul Razzaque Abdul Wahab Sheikh V/s. S.N. Sinha Commissioner of Police Ahmadabad) has been relied upon. It is, accordingly, stated that there was a total absence of application of mind on the part of the datening authority while passing the order. In support of this, a decision of the Supreme Court reported in AIR 1989 SC 2265 (Abdul Razzaque Abdul Wahab Sheikh V/s. S.N. Sinha Commissioner of Police Ahmadabad) has been relied upon. On the other hand, the learned Counsel for the State has submitted that the authorities were aware of the fact that the petitioner was detained in jail in the substantive case filed against him under the provisions of Customs Act and as the authorities were satisfied that he was likely to be released on bail and might again indulge is smuggling activities, the order under challenged was passed. In this connection, that order of detention served on the petitioner on 19.9.89 has been referred to, show that the authorities were quite aware of the fact that the petitioner was in jail custody in connection with the substantive case under the Customs Act. 8ut as he was likely to be released and in that event, might repeat his past acts, it was felt necessary to detain him. It is further stated that in fact the petitioner was granted bail on 13.11.89 in Cr. Misc. No. 11692 of 1989, who had earlier made several attempts for his bail in different courts. In the circumstances, it cannot be said that there was no application of mind on the part of the concerned authority while dealing with, the detention order of the petitioner. This contention also must fail. 16. Finally, it has been contended that a person may be prosecuted for having committed an offence, but he could not be detained as well as prosecuted on the same ground. The Supreme Court in a decision reported in -- Haradhn Saha V/s. State of West Bengal and Ors. observed that "the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of the liklihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The basis of detention is the satisfaction of the Executive of a reasonable probability of the liklihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for the reasons mentioned in Sec. 3 of the Act to prevent." It has further been observed that "Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security the safety of a State and the welfare of the Nation." There is no merit is this contention also. 17. For the reasons stated, I am satisfied that in the facts and circumstances of the case, the detention order was passed after due consideration of relevant grounds I, accordingly, uphold the same and dismiss this petition.