CHARANDIP KAUR INDERJEET Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition has been filed by the wife of the detenue, after he was ordered to be detained by the detaining authority in terms of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act"), on 15th November 2007 Detention order was served on 24th of November 2007 and conveyed the notice. Counter has been filed by the detaining authority. The foremost ground for the attack of the order of detention by the learned counsel for the petitioner was that in terms of section 3 of COFEPOSA Act there are various categories of persons who can be detained in terms of the said Act and these categories includes - (i) Smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.

(2.) THE learned counsel for the petitioner submits that a person can engage himself in such activities or in some of such activities. She submitted that under section 3(1)(iii) of said Act, a person can be prevented from engaging in transporting or concealing or keeping smuggled goods by detaining him under the provisions of the Act. She further states that the person who is detained under section 3(1)(iii) can be a person who does all the three activities, namely transporting, concealing or keeping smuggled goods. He can also engage in two or three activities or any one such activity. Where such a person is involved in one, two or all the three activities, he can be detained under section 3(1)(iii), but the detaining authority should be conscious of the fact that whether a person whom he detains was engaged in transporting or concealing or keeping smuggled goods or he was engaging himself for all three activities. In this context, she refers to the order of detention passed by the detaining authority. While recording her satisfaction to detain the detenue the detaining authority said that, "with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods, it is necessary to make the following order".

(3.) THE learned counsel for the petitioner submits that it is a case of clear non -application of mind where the detaining authority was not even aware whether the detenue was transporting, concealing or keeping smuggled goods. Learned counsel for petitioner submits that detaining authority picked up these lines from section 3(1)(iii) of the Act without applying her mind to the material before her to come to the conclusion whether the detenue was really transporting or selling or keeping smuggled goods or was continuing in all such activities. If detenue was doing all such activities, then the the disjunctive word "or" would not have been used. We have no doubt in our mind that this is a case of non application of mind. It is not stated only in detention order but also in the grounds of detention and in paragraph 37 same thing was repeated. Learned APP submits that in the background of this case, the facts and the material available before the detaining authority would disclose that the detenue was engaging himself in transporting of smuggled goods and material would show that his activity of transporting the smuggled goods was known to the detaining authority when she passed the order. The law is settled that when detaining authority arrives to his subjective satisfaction, he must apply his mind to the facts and material before him. Particularly to the material on the basis of which he states that a person needs to be detained. The detention laws are very sad, people are detained and deprived of their right of liberty without charges and trial, therefore, keeping in view that the mandate of the Article 21 and 22 of the Constitution of India, the courts have construed the detention laws very strictly so as to ensure that the safe good remedies under Article 22 are not diluted." The argument made at the Bar is covered by three judgments of the Supreme Court Kishori Mohan Bera v. State of West Bengal, AIR 1972 SC 1749. As the expressions "acts prejudicial to the maintenance of public order" and acts prejudicial to the security of the State have not been seperately defined but have been put together in the same definition with the disjunctive "or" in between them. It is further observed in paragraph 10 that - "it is, therefore, clear that before the authority invokes its power under Section 3, it must be satisfied and must expressly say in its order that the alleged activities of the person concerned were such that they endangered or were likely to endanger either the security of the State or public order or both. If the activities are of such potentially or impact so as to affect both of them, the conjunctive "and" and not disjunctive "or" would be the appropriate word. There is therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made."