MEENAKSHI AGARWAL Vs. UOI

JUDGEMENT

(1.) The W.P. (Crl.) No. 2183/2005 seeks to challenge the order of detention dated 9th March, 2004 of the Joint Secretary, Government of India in exercise of his powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) detaining the petitioner's husband (detenu) in Central Jail, Tihar on account of preventing him from smuggling goods in future.

(2.) The facts of the case as stated in the counter affidavit are as follows:

(3.) The detaining authority on the basis of the aforesaid facts came to the conclusion that in order to prevent the detenu from indulging in further smuggling activities passed the aforesaid detention order dated 9th March, 2004. The detenu before us has challenged the aforesaid detention order primarily on the ground that the same has been made without application of mind. The Counsel for the detenu submits that in the counter affidavit of the department, the department admits that the nature of activities undertaken by the detenu were those of abetment to smuggle as defined under Section 3(1)(ii) of the COFEPOSA. He submits that the department's own stand is that the detenu is abetting smuggling activities. His detention could not be justified under Section 3(1)(i) of COFEPOSA. The Counsel submits that even the adjudicatory authority under the Customs Act have clearly held that the activities of the detenu are abetment to smuggle and not smugglingper se. Consequently, the order is bad for non-application of mind. He has drawn our attention to various judgments where this aspect has been thrashed out. We may refer to the judgment of the Delhi High Court in Criminal Writ Petition No. 1797 2002 titled 'Shri Rajesh Kumar Jain v. Union of India & Ors.' where this Court has held that there is a distinction between the activities mentioned in Sections 3(1)(i) of the COFEPOSA and 3(1)(ii) thereof. Distinction being clear and unambiguous, any order made under wrong provision would suffer from non application of mind. Reference has also been made by the learned Counsel to the judgment reported as 'Daya Shankar Kapoorv. Union of India and Others', 1975 CRI.L.J.1376 where this aspect has been highlighted in paragraphs 25 and 26 which we may quote for the benefit of this judgment: