PRATAP JEEVANLAL JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) On 28th July 1984 the petitioner arrived in India from Dubai with a luggage which was found to contain gold valued at Rs. 3,29,918. His statement was recorded under S. 108, Customs Act, 1962. Subsequently other material relating to the said incident came into possession of the Customs authorities. Several documents connected with the incident were placed before the officer of the Government of Maharashtra who is entrusted with the power of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the "COFEPOSA Act". On 2nd Nov. 1984, the detaining authority passed the order of detention wherein it has been stated that with a view to prevent the petitioner from smuggling goods, it was necessary to detain him under the COFEPOSA Act. Accordingly he was being detained by that order. Simultaneously the grounds of detention were formulated and were made ready for being delivered to the detenu along with the order of detention. However, the detention order itself was ultimately executed on 11th Jan. 1985.

(2.) In the meantime the detenu, namely the petitioner, was produced before the learned Metropolitan Magistrate at Bombay and was remanded from time to time into custody to be released on bail on 8th Oct. 1985 in the sum of Rs. 30,000. After the petitioner was detained on 11th Jan. 1985 pursuant to the order of detention passed on 2nd Nov. 1984, a representation on his behalf was sent by an A dvocatt to the jail authorities, who received the same on 18th Oct. (February?) 1985. Thereafter the said representation was forwarded by the jail authorities on the very next day, namely on 19th Feb. 1985. The representation made by the petitioner was rejected by the Central Government on 27th Feb. 1985, while it was so rejected by the State Government on 6th Mar. 1985. It has been stated before us by Mr. Gupte, the learned Advocate appearing for the petitioner, that on 20th Oct. 1985 the petitioner has been ultimately convicted for the offence of having smuggled gold into India.

(3.) The order of detention has been challenged by the petitioner on several grounds. Mr. Gupte has in the first place challenged the order of detention on the ground that the subjective satisfaction on the part of the detaining authority could not have been properly arrived at in view of the fact which, according to him, is undisputed, that the incident of smuggling on the part of the petitioner was a solitary incident. One single incident of the type in which the petitioner is alleged to have indulged in could not legitimately lead to the subjective satisfaction that the petitioner is likely to indulge in similar activities in future, which activities ought to be prevented by an order of detention under the COFEPOSA Act. As far as this question is concerned, one must proceed on the basis that there was before the detaining authority the instance of a single incident The question is whether a single incident of smuggling could never lead to the satisfaction of the detaining authority that a particular person was likely to indulge in similar activities in future. Mr. Gupte says that it cannot, but we think that this question is conclusively decided by a judgment of a Division Bench of this Court in Yahya Ali Ahmed Fahem v. State of Maharashtra, (1983) 85 Bom LR 188. An argument that a single incident of smuggling could not form the basis of a subjective satisfaction that similar activities would be repeated in future was advanced before different Courts and probably before some other Division Benches of this Court also. The Division Bench in Yahya Ali's case had an occasion to consider different judgments in the field and pointed out that no Division Bench has held that a single incident cannot form the basis of a subjective satisfaction that similar attempt would not be made in future. On the other hand, there was authority for the proposition, which proposition was endorsed by the Division Bench in Yahya Ali's case, that a single incident can, in the context of the facts of that particular case, lead legitimately to the conclusion that an attempt of the type involved in that solitary or single incident could be repeated. It was not unreasonable to detain a person for one single incident if that incident demonstrates its potentiality for continuing the criminality and indicates previous practice and expertise. Proceeding further the Division Bench held as follows :-