KARAT KRISHANA DAS Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeks issuance of writ of Habeas corpus or any other appropriate writ, order or direction for the immediate release of the petitioner and quashing the order of detention dated 7th December, 1987 passed by Sh. M. Mohan Kumar, Secretary to Govt. (Home) State of Kerala, Trivandrum.

(2.) The brief facts relevant for the decision of this writ petition are that on 1-4-1987 the petitioner holder of Indian Passport No. M5510190 landed at Trivandrum Airport from Jeddah via Bombay by Air India flight No. AI-965. He gave a declaration of having brought with him dutiable articles worth Rs. 11,850 and after having paid Rs. 13,000 as duty when he was about to leave the baggage Hall, he was intercepted because his movements were found to be suspicious. It was then found that he had two excess baggage tickets. On examining them 8 gold biscuits were found from each of those baggages. Their weight was 1856 grams of the total value of Rs. 4,64,000. It led to the recording of his statement under Section 108 of the Customs Act in which he gave details of the circumstances in which he brought those gold biscuits. Taking all the circumstances into consideration, Sh. M. Mohan Kumar, Secretary to Govt. (Home) State of Kerala passed the impugned order of detention.

(3.) I have heard arguments advanced by Sh. Harjinder Singh, Advocate for the petitioner and Sh. G. Parkash, counsel for respondent No. 2 i.e. State of Kerala. Although the detention order has been challenged for a number of reasons but only one ground has been pressed before me. Therefore, only that ground may be noticed. It is urged that after the seizure of the passport of the petitioner by the Customs Officers, it was impossible for the petitioner to travel abroad and indulge in any nefarious activities much less smuggling of gold. Thus, there was complete non- application of the mind on the part of the detaming Authority in passing the detention order with a view to preventing the petitioner from smuggling gold. The detention order shows that it was passed only with a view to preventing the petitioner from smuggling gold. In reply to the above arguments, it was submitted by Mr. G. Parkash, learned counsel for respondent No. 2 that the Customs department had come across a number of instances where person involved in smuggling possessed more than one passport and therefore it was likely that petitioner can again indulge in smuggling and as such it was necessary to pass a detention order in order to effectively prevent him from smuggling. Learned counsel for the petitioner drew my attention to the grounds of detention on the basis of which the detention order was passed against the petitioner. I have carefully gone through all thoses grounds. It is nowhere mentioned in the grounds of detention that the Customs department had come across a number of instances where persons involved in smuggling possessed more than one passport and as such it was apprehended that the petitioner will continue to smuggle gold unless he is prevented from smuggling by passing a detention order against him. Therefore, what is now being pleaded before the Court as a ground of detention does not find any mention in the grounds of detention served upon the petitioner. In order to come to a conclusion whether the detention order actually conveyed the right perspective of the subjective satisfaction of the detaining Authority, no doubt the Court is not entitied to substitute its own subjective satisfaction to revoke or rescind the order of detention. But the Court certainly has jurisdiction to see whether the grounds on which the detention order is sought to be supported were actually conveyed to the petitioner or not. To that extent the Court has a right to find out whether the basic facts and materials which influenced the detaining Authority in arriving at its satisfaction were conveyed to the detenu or not. From a bare reading of the grounds of detention, I do not find if the detaining Authority conveyed to the petitioner that the Customs department had come across a number of instances where persons involved in smuggling possessed more than one passport. Otherwise it is to be seen when once the passport of the person is seized by the Customs department that person is effectively prevented from smuggling any articles into this country. To go abroad, it is a matter of common sense, one has to have a passport and if that passport is seized from him then naturally it amounts to effectively preventing such a person from smuggling because in the absence of passport, he is unable to go abroad. Therefore, I am of the view that in the present case when the petitioner's passport was seized by the Customs Officers, he was effectively prevented from smuggling gold and as such the detention order passed against him is vitiated and suffers from vice of non-application of mind.