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2001 DIGILAW 205 (ALL)

MAHESH RATHI v. STATE OF UTTAR PRADESH

2001-02-28

G.P.MATHUR, S.K.JAIN

body2001
G. P. MATHUR, J. ( 1 ) THIS petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued commanding the respondents not to arrest and detain the petitioner under the provisions of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) and to restrain the respondents from giving effect to the detention order passed against the petitioner. ( 2 ) THE authorities of Customs Department conducted search of premises bearing No. C. K. 13/48, Pashu Pateshwar, Varanasi on 4-9-1999 and found twelve bags of silk yarn of Chinese origin stored therein. On opening of the bag, a label was found which contained the writing -"blosoms, White Steam Filature China National Silk Import and Export Corp. Made in China. " The wife of the owner-landlord of the premises informed the authorities that the same had been let out to a tenant. Thereafter, the owner of the premises G. N. Mishra was summoned to Customs Office, who informed in writing and also gave an affidavit that the premises had been let out to the petitioner Mahesh Rathi on a rental of Rs. 1000. 00 per month and he carries on business of Banarasi Sarees and whatever goods were found in the premises belonged to him. The petitioner Mahesh Rathi was also summoned in the office of Customs Department, wherein, his statement was recorded on 4-10-1999. He admitted that he was carrying on business of Banarasi Sarees and his godown was situate in premises No. 13/53, Pashu Pateshwar in Varanasi city. He also admitted that Rajesh Singh used to bring Chinese Silk yarn from Bangaladesh and Nepal and used to give him for the purpose of sale. Subsequently, the petitioner gave an application that his statement had been recorded by the Customs authorities under threat and coercion and it was not his voluntary statement. ( 3 ) THE petitioner was taken into custody and was produced before the Magistrate on 5-10-1999. He was granted bail on 30-10-1999. Subsequently, the petitioner gave an application that his statement had been recorded by the Customs authorities under threat and coercion and it was not his voluntary statement. ( 3 ) THE petitioner was taken into custody and was produced before the Magistrate on 5-10-1999. He was granted bail on 30-10-1999. It is averred in paragraph 18 of the writ petition that after a lapse of more than one year, an order under Section 3 (1) of COFEPOSA has been passed against him and he came to know about the said order when some officers of Custom Department and police personnel came to his house to arrest him in the first week of January 2001. It is in these circumstances that the petitioner has filed the present writ petition under Article 226 of the Constitution and the principal parayer is that the detention order Article 226 of the Constitution and the principal prayer is that the detention order passed against the petitioner may be quashed and he should not be arrested or detained in pursuance of the aforesaid order. ( 4 ) THE copy of the detention order passed against the petitioner has not been filed along with the writ petition. It is also noteworthy that the detention order, which the petitioner alleges to have been passed against him, has not been given effect to and he has not been taken into custody so far. The detention order has neither been executed nor the grounds of detention have been served upon him. The extent and scope of power of interference while exercising jurisdiction under Article 226 of the Constitution at pre-execution stage has been considered threadbare by the Supreme Court in Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, (1991) (1) JI (SC) 549 and after dealing with the matter exhaustively the court ruled as follows. ". . . The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz. ". . . The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz. where the courts are prima facie satisfied (i) that the impugned order is not passed under the act under which it is purported to have been passed, (ii) that it sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention order prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. " ( 5 ) THIS decision has been subsequently follwed in N. K. Bapan Union of India (1992) (4) JI (SC) 49, State of Tamil Nadu v. P. K. Shamsuddin, (1992) (4) JI (SC) 179 : (AIR 1992 SC 1237) and Subhash Muljimal Gandhi v. L. Hlmingllana, (1994) (6) SCC 14 : (1994 AIR SOW 4975) Thus, the power under Article 226 of the Constitution can be exercised at the pre-execution stage on very lmited grounds enumerated by the Apex Court and not on all grounds which are avbailable after the detention order has been served and the person has been taken into custody. ( 6 ) IT is not the case of the petitioner that the detention order has not been passed under COFEPOSA or that the authority of the State Government or the officer of the State Government who passed the order had no authority to do so or that the impugned detention order had not been passed against him and it is sought to be executed against a wrong person. It is also not the case of the petitioner that the impugned order is based on vague, extraneous and irrelevant grounds. It is also not the case of the petitioner that the impugned order is based on vague, extraneous and irrelevant grounds. Sri Atul Mehar, learned counsel for the petitioner has submitted that the passing of the detention order after a period of one year makes the order punitive rather than preventive in nature and that it is passed for wrong purpose. ( 7 ) THE main question which requires consideration is that if there is delay in passing a detention order, can it be held that the order has been passed for a wrong purpose. The dictionary meaning of the word "purpose" is - a result, which it is desired to obtain and is kept in mind in performing an action. Section 3 (1) of COFEPOSA provides that the Central Government or the State Government or any officer of the aforesaid governments specially empowered may, if satisfied, with respect to any person with a view to preventing him from sumuggling goods or abetting the smuggling of goods or concealing or keeping smuggled goods or dealing in smuggled goods make an order directing that such person be detained. It has been held in the case of N. K. Bapna (1992 (4) JT (SC) 49) (supra) that as "smuggling" has been defined in the Act, the said definition has to be taken into consideration for the purpose of the Act and not the dictionary meaning of the word. Section 2 (e) of the Act lays down that "smuggling" has the same meaning as in section 2 (39) of the Customs Act, 1962 and all its grammatical variations and cognate expression shall be construed accordingly. Section 2 (39) defines "smuggling" in the following words ;"smuggling", in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113. " ( 8 ) THERE are various clauses namely, clauses (a) to (p) in section 111 which make the goods brought from a place outside India liable to confiscation and that would therefore amount to smuggling within the meaning of section 2 (39) read with section 111 of the Customs Act. " ( 8 ) THERE are various clauses namely, clauses (a) to (p) in section 111 which make the goods brought from a place outside India liable to confiscation and that would therefore amount to smuggling within the meaning of section 2 (39) read with section 111 of the Customs Act. If foreign goods are brought from any place outside India to any place inside India wihtout payment of requisite duty, it will amount to smuggling of goods as mentioned in sub-clause (i) and the goods so brought would be smuggled goods within the meaning of sub-clause (iv) of sub-section (1) of section 3 of the Act. The State Government was satisfied that foreign goods had been brought to India from Nepal or Bangladesh without payment of duty and the same was sold to the petitioner. The case of the petitioner was thus covered by sub-clause (iv) of sub-section (1) of section 3 of the Act. Since the material with the Stategovernment showed that the petitioner was involved in transporting, concealing or dealing in smuggled goods it could very well pass a detention order section 3 (1) of the Act. The object with which the order was passed was to prevent the petitioner from indulging in the aforesaid activities. The preamble of COFEPOSA is -"an Act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. " There can be no doubt that the State Government having been satisfied that the petitioner was engaged in transporting, concealing, keeping or dealing in smuggled goods and in order to achieve the object of the Act namely, prevention of smuggling activities, passed the impugned detention order. Thus, it cannot be held that the order has been passed for a wrong purpose. ( 9 ) THE contention that if a long period has elapsed between the offending activity and passing of a detention order the same would be for a wrong purpose is, in our opinion, wholly fallacious. It has been held in Shelkh Serajul v. State of West Bengal, (1975) 2 SCC 78 and Rabindra Kumar v. State West Bengal, AIR 1975 SC 1408 that where there is delay in passing the detention order it is the subjective satisfaction of the detaining authority which gets vitiated rendering the detention order invalid. It has been held in Shelkh Serajul v. State of West Bengal, (1975) 2 SCC 78 and Rabindra Kumar v. State West Bengal, AIR 1975 SC 1408 that where there is delay in passing the detention order it is the subjective satisfaction of the detaining authority which gets vitiated rendering the detention order invalid. The delay cannot lead to the inference that the detention order has been passed for a wrong purpose. ( 10 ) IT is important to emphasise that there is no inflexible rule that whenever there is a delay in passing a detention order it must necessarily be held that the satisfaction of the detaining authority was vitiated rendering the detention order invalid. It will depend upon the fact and circumstances of each case and if there is satisfactory explanation for passing the order, the same cannot be held to be illegal or invalid. This view has been taken in Rajendra Kumar Natwar Lal Shah v. State of Gujarat, AIR 1988 SC 1255 , Yogendra Morari v. State of U. P. AIR 1988 SC 1835 and K. Aruna Kumari v. Government of Andhra Pradesh, AIR 1988 SC 227 . A conspectus of the authorities cited above would show that if there is a delay in passing the detention order and the same has not been satisfactorily explained, it will vitiate the subjective satisfaction of the detaining authority rendering the detention order invalid but the delay along cannot lead to the inference that the order has been passed for a wrong purpose. The submission that the impugned detention order has been passed for a wrong purpose being based solely upon the alleged delay in passing thereof, has thus no merit and is liable to be rejected. ( 11 ) HAVING given our careful consideration to the submission made by the learned counsel for the petitioner, we are clearly of the opinion that the petitioner has not been able to make out any ground which may justify interfernce with the detention order at the pre-execution stage. ( 12 ) THE writ petition lacks merit and is accordingly dismissed. Petition dismissed .