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1999 DIGILAW 1247 (PAT)

Chitta Ranjan Roy v. Union of India

1999-11-25

NAGENDRA RAI, S.K.CHATTOPADHYAYA

body1999
ORDER The petitioner has filed the present writ application for quashing the order dated 1.4.1999, issued by the Special Secretary to the Government, Special Home Department, Government of Bihar, Patna, by which he has directed the Inspector General of Police, Crime Investigation Department (for short C.I.D) to serve the order and grounds of detention on the petitioner and, thereafter, to detain him under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short 'COFEPOSA') as well as the order dated 3.4.1999, issued by the Deputy Inspector General of Police (Prevention), C.I.D., Bihar, Patna, to the Superintendent of Police, Jamshedpur, to carry out the direction given by the Special Secretary, Home Department. Copies of the said orders have been appended as Annexures 1 and 2, respectively. 2. Later on, the detention order dated 1.4.1999 as well as the grounds of detention were also annexed as Annexure 'B' to the rejoinder to the reply of the counter affidavit filed on behalf of respondents no.3 and 5 and, thereafter, the learned counsel for the petitioner prayed for quashing of the aforesaid order. 3. The facts necessary for disposal of the present writ application are that Jugsalai (Jamshedpur) P.S. Case No. 144 of 1998 was registered with regard to the theft of gold. During investigation, it was found that the said gold was lying with the petitioner, who is a jeweller of Golmuri and is also indulged in smuggling of gold. The officer incharge of Jugsalai P.S. was asked to contact the petitioner as customer and he approached the petitioner for the purchase of gold and after series of sittings, the deal was finalised and the petitioner agreed to sell four gold bars on payment of Rs. 3.5.lacs on 23.9.1998 at 11.30 P.M. at his residence in Golmuri. The Incharge of Jugsalai Police Station, along with Sergeant Major visited the house of the petitioner on the appointed date and the petitioner gave four gold bars and took cash and after that a raid was conducted under the leadership of the Superintendent of Police, Jamshedpur and four more gold bars lying in a fridge were recovered from the house of the petitioner. A seizure list was prepared in presence of the two independent witnesses and on the next date, the petitioner, his son and the seized eight gold bars were handed over to the officers of the custom Department. A seizure list was prepared in presence of the two independent witnesses and on the next date, the petitioner, his son and the seized eight gold bars were handed over to the officers of the custom Department. The petitioner is also alleged to have made statement before the Custom Department that he was doing illegal trading of purchase and sale of gold of foreign origin and he did not produce any document before the Custom Department in support of possession of the gold bars. 4. Thereafter, the Custom Department recommended for detention of the petitioner under the COFEPOSA Act and the matter was screened at the stage of the State Government and, thereafter, an order of detention was passed on 1.4.1999 under section 3(i) (iii) of the COFEPOSA by the State Government with a view to prevent him from smuggling gold of the foreign origin. Thereafter, the order of detention and the grounds of detention were ordered to be served upon the petitioner both in Hindi and English by the Special Secretary vide his letter dated 1.4.1999, which has been annexed as Annexure 1 to this petition. It further appears that the case of the petitioner was placed before the Advisory board and the Advisory board found the order of detention valid and on the basis of the opinion of the Advisory Board, the Government has confirmed the order of detention by order dated 9.7.1999, a copy of which has been annexed as Annexure 9 to the writ petition. 5. Learned counsel for the petitioner urged two points for quashing the order of detention. Firstly, he submitted that the order of detention as well as the grounds of in support of the order of detention were never served upon the petitioner, as a result of which he has been deprived of an opportunity to make an effective representation against the order of detention and, thus, there was violation of Article 22(5) of the Constitution of India as well as the statutory right under the Act. Secondly, he submitted that the order of detention has been passed only on a solitary incident, which could not form the basis of subjective satisfaction of the detaining authority for, passing an order of detention. 6. Secondly, he submitted that the order of detention has been passed only on a solitary incident, which could not form the basis of subjective satisfaction of the detaining authority for, passing an order of detention. 6. Learned counsel appearing for the State combated both the submissions and submitted that the order of detention and the grounds of detention, both, were served upon the petitioner and in token of having received the same, he has made an endorsement and signed on the forwarding letter. He also submitted that even a solitary incident of smuggling can be basis of preventive detention. 7. Coming to the first point, it is to be stated that the State in its counter-affidavit, supplementary counter-affidavit and rejoinder to the reply filed by the petitioner, has cleary stated that the order of detention as well as the grounds of detention were served upon the petitioner and Annexure 'B' appended to the rejoinder to the reply of the petitioner clearly shows that the detention order as well as the grounds of detention, both in Hindi and English, were served on the petitioner and they were also read and explained to him and in token of the same, he made an endorsement to that effect and has put his signature on the forwarding letter. Thus, it is clear from the averments made in the counter-affidavit and the documents produced before this court that the order of detention as well as the grounds of detention were served on the petitioner and as such the requirements of Article 22(5) of the Constitution of India, which casts an obligation on the detaining authority to communicate the order and grounds of detention to the detenu so as to afford him an opportunity of making a representation against the order of detention, have been fulfilled and the assertion made on behalf of the petitioner regarding non-service of the order of detention and grounds of detention cannot be accepted. 8. Coming to the second point, the order of detention shows that the petitioner has been detained with a view to prevent him from smuggling gold of foreign origin. Learned counsel for the petitioner in support of his submission that the solitary incident cannot form a basis of detention order, relied upon a judgment of the Supreme court in Debu Mahto VS. State of West Bengal, reported in AIR 1974 Supreme Court 816. 9. Learned counsel for the petitioner in support of his submission that the solitary incident cannot form a basis of detention order, relied upon a judgment of the Supreme court in Debu Mahto VS. State of West Bengal, reported in AIR 1974 Supreme Court 816. 9. In the case of Debu Mahto (supra), the order of detention was passed under the Maintenance of Internal Security Act and it was held that in a given case, even a single act of wagon breaking by an individual may be regarded in a different light and conceivably afford justification for reaching a satisfaction that such individual may be detained in order to prevent him from acting in a prejudicial manner. However, on consideration of facts the order of detention was quashed. 10. Learned counsel for the petitioner also relied upon the case of Haru Sarkar vs. State of West Bengal, reported in AIR 1974 Supreme Court 2240. 11. In the case of Haru Sarkar (supra), the order of detention was also passed under the Maintenance of Internal Security Act and the ground of detention was only one incident of theft of Railway goods. In that case, it was submitted that though the order of detention was passed on one or solitary incident, but the detaining authority in arriving at his subjective satisfaction took into consideration other fact that the petitioner was notorious Railway criminal. The apex court did not accept the aforesaid stand and upheld the order of detention on the solitary ground. 12. Thus, in none of the cases relied upon by the petitioner it has been held that the solitary incident cannot form a basis for detention order. 13. The detaining authority has to be satisfied that an order has to be passed under section 3 of the COFEPOSA with a view to preventing a person from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling of goods or engaged in any other acts as mentioned in the said section. Once the detaining authority is satisfied on the basis of the incident, which may be one only, that the person is engaged in smuggling goods of foreign origin, then with a view to preventing him from doing such act, he can pass an order of detention and such order cannot be assailed only on the ground that the incident was solitary one. The single act would be sufficient to form a basis of subjective satisfaction. 14. The apex court had occasion to consider this question with regard to a case arising out of COFEPOSA in the case of Shiv Ratan Hakim VS. Union of India, reported in AIR 1986 Supreme Court 610. In that case, the detenu was found in possession of two pieces of foreign-marked gold. In his statement, he admitted that as per the agreement he contacted certain persons on telephone in Kathmandu. Those persons to whom he had a talk on telephone, came to the lodge where he was staying along with the requisite quantity of gold and, thereafter, he took the delivery and paid him the price. The apex court in Paragraph 4 of the said judgment held as follows: "Having regard to the nature of the activity of smuggling, an inference could legitimately be drawn even from a single incident of smuggling that the petitioner was indulging in smuggling of gold. Moreover the written statement given by the petitioner clearly indicated that the petitioner was engaged in the business of purchase and sale of foreign marked gold and this incident in which he was caught was not a solitary incident." 15. Thus, it depends upon the facts of each case and it cannot be laid down as a rule of law that the solitary incident cannot form a basis for detaining a person. Even on a solitary incident, an inference can be drawn that the person is indulged in smuggling and it is necessary to pass an order to prevent him from doing so. 16. Even on a solitary incident, an inference can be drawn that the person is indulged in smuggling and it is necessary to pass an order to prevent him from doing so. 16. Adverting to the facts of this case, it is clear that the Incharge of Jugsulai Police Station contacted the petitioner as a customer and, thereafter, after several meetings, the petitioner agreed to sell the gold bars and on the day and time fixed, he sold four gold bars to the Incharge of Jugsalai Police Station on payment of money and, thereafter, the money was recovered and four more gold bars were recovered from the fridge kept in the house of the petitioner. In his statement before the custom authority, which has been mentioned in the grounds of detention, he has admitted that he was doing illegal trading of purchase and sale of gold of foreign origin. The aforesaid circumstances clearly lead to an inference that he was indulged in smuggling of gold of foreign origin and a reasonable person on the basis of the materials would form an opinion that the detenu was smuggling gold of foreign origin. 17. Thus, we find that there were enough materials before the detaining authority for his satisfaction to pass an order under section 3 of the COFEPOSA and as such the order of detention is not vitiated on the grounds urged on behalf of the petitioner. 18. In the result, we find no merit in this application and it is, accordingly, dismissed.