MEGHJIBHAI P BHANUSHABI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition was filed by a friend of the detenu to challenge order dated February 17, 1992 passed by the Secretary (Preventive Detention) to the Government of Maharashtra, Home department, in exercise of powers conferred under sub-section (1) of Section 3 of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'act') with a view to prevent the detenu from transporting smuggled goods. The petition was heard by Division Bench and judgment dated September 4, 1992 various contentions raised on behalf of the detenu were turned down and the petition was dismissed. The Division Bench noticed that the decision of Division Bench of this High Court in the case of Smt. Shashikala Rane v. Union of India reported in 1987 Cri LJ 1787 required reconsideration, as the observations made by the Division Bench run contrary to the decision of another Division Bench in the case of Shahul Hamid Ismail Shahbendray Patel v. R. D. Pradhan reported in (1978) 80 Bom LR 440 : (1979 Cri LJ 719 ). The Division Bench, therefore, referred the papers to the learned Chief Justice to consider constitution of a larger Bench to examine the correctness of the decision in the case of Smt. Shashikala Rane v. Union of India, reported in 1987 Criminal Law Journal 1787. The learned Chief Justice directed the papers and proceedings to be placed before this Bench.

(2.) AS the petition filed by the detenu to challenge order of detention has already ended in dismissal, it is not necessary to set out the facts which gave rise to passing of order of detention. To appreciate the question which demands consideration by larger Bench, we have formulated the following question with the assistance of the counsel :

(3.) SECTION 3 (1) confers power upon the Central Government or the State Government or any officer of the Central Government or the State Government specially empowered for the purposes of this Section to make an order directing detention of the person with a view to prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from (a) smuggling goods, (b) abetting the smuggling of goods, (c) engaging in transporting or concealing or keeping smuggled goods, (d)dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, and (e) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. The plain reading of Section 3 makes it clear that the powers of detention are to be exercised with a view to prevent a person indulging in prejudicial activities in future and the subjective satisfaction of the detaining authority is to be reached on the basis of prejudicial acts indulged in prior to the date of issuance of the order. The power of detention is preventive in nature and not punitive. The expression 'engaging' in Section 3 (1) (iii) of the Act is to be examined with reference to the object to be achieved by the detaining authority. It is necessary to examine the ambit of clause (iii) of sub-section (1) of Section 3 of the Act before reference to the decisions and the issue as to whether a solitary act is sufficient to exercise powers or series of acts done consistently are necessary before order of detention can be passed. The Parliament enacted the act for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. The parliament felt that violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. With a view to overcome the problems created by large quantity of smuggled articles within the territory, powers are conferred to detain a person in respect of whom there is reasonable apprehension that such person would continue prejudicial acts in future. Clause (iii) of sub-section (1) of Section 3 refers to preventing persons from engaging in transporting or concealing or keeping smuggled goods. The Legislature in its wisdom has used expression 'engaging' and it is necessary to give proper meaning to that expression. The persons who are engaged in actual transport or concealing or keeping smuggled goods can of course be detained by exercise of powers but the Legislature must have realised the need that in large number of cases, the persons who have not directly undertaken transporting or concealing or keeping smuggled goods but are indirectly involved in those functions are also required to be detained. A person may engage a fleet of vehicles to transport smuggled goods and will engage employees to carry out the actual exercise of transporting. Such a person may not be accused of transporting the smuggled goods and, therefore, the Legislature used the expression 'engaging' in transporting goods thereby indicating that every person involved in the act of transporting either directly or indirectly can be detained when the detaining authority reaches subjective satisfaction that it is necessary to do so to prevent such person from engaging in transporting the smuggled goods. The expression 'engaging', therefore, brings in its sweep even those persons who are not directly transporting or concealing or keeping smuggled goods but are instrumental or instigating or indirectly assisting in transport, concealment or keeping of the smuggled goods. The expression 'engaging' in clause (iii) of sub-section (1) of Section 3 of the Act if understood in this light, then the question is as to whether the person engaged, in transporting or concealing or keeping smuggled goods should commit more than one act to warrant detention would unintentionally stand (sic)