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2002 DIGILAW 1520 (SC)

M. Kudubdeen v. Union of India

2002-11-27

K.G.BALAKRISHNAN, Y.K.SABHARWAL

body2002
ORDER : Y.K. Sabharwal, K.G. Balakrishnan, JJ. This petition under Article 32 of the Constitution of India has been filed seeking quashing of order of detention dated 9th May, 2002 passed under Section 3(1)(i) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 whereby the petitioner has been ordered to be detained with a view to prevent him from smuggling goods in future. 2. Though various grounds have been taken in the writ petition challenging the order of detention and continued detention of the petitioner, Mr.KK Mani, learned counsel for the petitioner, however, pressed only two grounds. 3. The first ground pressed by learned counsel is about the non-supply of documents in the language known to the petitioner which, it is claimed, has adversely affected detenu's valuable right of making effective representation under Article 22(5) of the Constitution. Detenu claims to have studied upto fifth standard. He does not know to read, write and understand English and claims to know only 2 Tamil language. The documents whereof the English translation has not been supplied to the detenu is a custom declaration. According to the facts noticed in the ground of detention, the petitioner was apprehended at Chennai airport with 140 mobile phones and certain gold ornaments. The total value of the goods were approximately Rs. 7,29,000/-. In the custom declaration the value of the goods was mentioned as Rs. 30,000/-. The details about Rs. 30,000/- are noticed on the reverse of the document in respect of which the complaint has been made that English translation has not been supplied. It is apparent from look at the document, namely custom declaration that the reverse side of it is predominantly in Tamil language. It is written by the petitioner. The grievance made is in respect of the front portion of the custom declaration. That is in English. It is contended that Tamil translation of the front portion has not been supplied. It is a relied upon document. A perusal of the said document (front portion) shows that the material particulars therein are name of the passenger, flight number, numbers of the packages, checked baggage, hand baggage, total value of the dutiable goods being imported and signature. All these particulars have been filled in that document. The name, flight number and number of packages have been mentioned in the document in question. All these particulars have been filled in that document. The name, flight number and number of packages have been mentioned in the document in question. Against the value of the goods 'tick' mark has been made. The document has been signed by the detenu. In face of the above details given by the 3 detenu in the aforesaid declaration, the contention that translation thereof has not been supplied particularly keeping in view that the reverse is in Tamil language, is without any substance. Therefore, there is no merit in the contention that for non supply of the English translation of the document has resulted in depriving the petitioner from making an effective representation under Article 22(5) of the Constitution. The first contention is therefore rejected. The second contention urged by the learned counsel is that there was no compelling necessity to make an order of detention since the detenu was already in custody as a remand prisoner and his three bail applications had been rejected and his passport had been seized. The submission of learned counsel is that there was no compelling necessity since the petitioner could not, even if released on bail, indulge in prejudicial activity of smuggling for the reason that his passport had been seized by the authorities and therefore he could not travel abroad. In support, the reliance has been placed on the decision in the case of Rajesh Gulati v. Government of NCT of Delhi & Anr., 2002 (6) SCALE 143 : (2002) 7 SCC 129 : 2002 SCC (Cri) 1627 in particular to the observations made in para 14 to the effect that the likelihood of the appellant, in that case, indulging in smuggling activities was in any case effectively foreclosed by the retention of his passport by the custom department. It was found that the conclusion that despite the absence of the passport the detenu therein could or would be able 4 to continue his activities is based on no material but was a piece of pure speculation on the part of the detaining authority. 4. It is apparent that on the facts and circumstances of that case, that the Court came to the conclusion that in view of the seizure of the passport there was absence of material for coming to the conclusion that the detenu would continue in his prejudicial activities. 4. It is apparent that on the facts and circumstances of that case, that the Court came to the conclusion that in view of the seizure of the passport there was absence of material for coming to the conclusion that the detenu would continue in his prejudicial activities. The facts of the present case are that the petitioner had an additional booklet attached to his passport. The passport of the petitioner indicated various foreign visits made by him abroad. The further material before the detaining authority was that he was not a big businessman; did not own any immoveable property and was not a person who was holding such a position so as to make frequent trips abroad; was not a person returning to India from a foreign tour or after serving abroad for considerable period of time. The baggage brought by the detenu did not conform to the bonafide passenger baggage as per the relevant provisions of the Export & Import policy for 1997-2002 read with Section 79 of the Customs Act, 1962. We have already noticed the articles which were being attempted to be brought and the value thereof. In view of these facts, in the present case, it is not possible to accept the contention that there was no material before the detaining authority to arrive at a conclusion that there was 5 compelling necessity to detain the petitioner with a view to prevent him in indulging in prejudicial activity, namely smuggling of the goods despite seizure of his passport. Further, making foreign trips was not the only mode of smuggling. Abdul Sathar Ibrahim Manik etc. v. Union of India & Ors., (1992) 1 SCC 1 : 1992 SCC (Cri) 1 was a case where the detenu was in jail, his bail application had been rejected and his passport seized. A similar contention regarding compelling necessity was rejected by this Court. It is within the subjective satisfaction of the detaining authority to come to the conclusion whether there is compelling necessity to make an order of detention in respect of a person who was in jail and whose passport had been seized. The sufficiency of material in arriving at the subjective satisfaction cannot be gone into in exercise of the writ jurisdiction. It is not a case of absence of material altogether. The sufficiency of material in arriving at the subjective satisfaction cannot be gone into in exercise of the writ jurisdiction. It is not a case of absence of material altogether. It cannot, therefore, be held that the subjective satisfaction of the detaining authority about the compelling necessity stands vitiated. No other ground was urged. In view of the aforesaid reasons, the writ petition is dismissed.