SATYANARAYAN KOTHARI Vs. THE SUPERINTENDENT, PRESIDENCY JAIL

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India for a writ and/or order, or orders, and/or directions in the nature of a Writ of Habeas Corpus in the matter of an order bearing No. F. No. 673/20/80 -Cus. VIII passed by Shri B.B. Gujral, Additional Secretary to the Government of India, Ministry of Finance, (Department of Revenue), New Delhi on 28th October, 1980 in purported exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The said order was passed on the basis of which the petitioner Shri Satyanarayan Kothari has been detained in Presidency Jail, Calcutta. It is the case of the petitioner that he carries on bona fide business in Textiles and Hosiery goods in Barabazar at Calcutta. That on 9th Nov., 1980 some officers of the Custom came to his house and enquired of him. The petitioner at that time was asleep and could not attend the officers who came there. The house of the petitioner was surrounded and kept on guard throughout the night. On the next morning the petitioner was arrested and taken to the Custom House. At the Custom House, the petitioner was served with a copy of the order of detention and also with a copy of the grounds on which the petitioner has been detained. It appears from the order of detention that the petitioner has been detained with a view to prevent him from smuggling goods. It has been stated in the application that the grounds have been expressed in a language and in a manner which is absolutely ununderstandable to a person of ordinary prudence. The materials as expressed in the grounds clearly show that there has not been any valid satisfaction. A reading of the document mentioned as grounds clearly indicate that materials which are not germane to smuggling of goods have been stated in detail. It is difficult to find out which fact in the grounds really amounts to smuggling. Since a number of facts and incidents have been put together in the document enumerated as grounds the satisfaction becomes totally invalid as based on various extraneous materials. The first paragraph refers to an intelligence report. It is stated that the intelligence report is vague, indefinite and does not amount to smuggling. The paras. 2 (a), 2 (b) and 2 (c) are enumeration as to what had happened when the intelligence report earlier mentioned had been worked out. The facts stated therein do not amount to smuggling and as such those facts constituting the grounds are irrelevant. In paragraph 2 (b) of the grounds all that had happened as a result of search at the Airport of the petitioner and his wife on 8th September, 1980 have been stated. The facts stated therein do not amount to smuggling at all. Seizure on the basis of a reasonable belief may or may not ultimately lead to confiscation but that is no index of smuggling. The statements in paragraph 2 (c) do not amount to smuggling. Zirconium stones are not diamond and their importation is not necessarily smuggling. It is of no consequence that those may be liable to confiscation. It is further stated that the facts alleged in paragraph 2 and its sub -paragraphs (a), (b) and (c) related to one occurrence of 8th September, 1980. In that incident the Custom Officer on a reasonable belief that the stones were liable to be confiscated had seized them. The ground is vague and has no proximate connection with the purpose of detention. The allegations are irrelevant and those do not come within the mischief and scope of Section 3 of the Act. In Ground No. 3 the steps that had been taken in connection with the seizure have been mentioned. The allegations have no bearing on smuggling. The statements of facts in paragraph 4 only show that the petitioner had been to different parts of the world. It does not disclose smuggling or anything to do with smuggling. Even then the facts stated therein have been relied for the purpose of detaining the petitioner. Such reliance, according to the petitioner, has vitiated the order of detention. Reliance has also been made on the statements made by the petitioner and his wife in their examination under Section 108 of the Customs Act. Such reliance has been wrongly made. It has furl her been stated that the grounds are vague, indefinite and the petitioner has been prevented from making any effective representation against the said grounds. The grounds, as such, are irrelevant and no satisfaction is liable to be based on the same. Moreover, such a single incident does not amount to course of conduct which may be prevented by ordering detention of the petitioner. It appears from the statements made in paragraph 8 that the satisfaction is based on the alleged smuggling of 8th September, 1980 and similar activities prior to 8th September, 1980. Neither the nature of the activities nor the date or time of such act is known. There is no proximity of alleged smuggling activity prior to 8th September, 1980 to the order of detention. As such the order of detention is based on irrelevant and extraneous consideration.

(2.) MR . Roy, with much emphasis contends that various facts have been mentioned in the grounds from which ultimately two grounds have been deduced. Many of the facts are extraneous and not germane. This shows total non -application of mind on the part of the detaining authority. In the first place, Mr. Roy contends that it was not in the mind of the detaining authority, that a criminal prosecution had already been started against the petitioner for the alleged smuggling and that the said criminal prosecution would have been sufficient and there was no necessity for detention, Mr. Roy next contends that an irrelevant fact has been introduced namely, that the petitioner's wife also participated in. the fact of smuggling. The next submission of Mr. Roy is that the second ground is vague, not proximate and extraneous and if that be so then the detention rests on a single ground, namely, on. the incident which took place on 8 -9 -1980. In the second ground, it has simply been stated that prior to 8 -9 -1980 the petitioner was engaged in similar smuggling activities. The ground does not give any particular act of smuggling. The periods of smuggling have also not been mentioned. We will discuss subsequently whether the second ground is vague. Even assuming that the second ground is vague the order of detention can be held as valid if the first ground suffers from no irregularity or illegality. There was an amendment of the Act in 1975 by which Section 5 -A was added. Section 5 -A reads as follows:

(3.) MR . Shankerdas Banerji, learned Advocate appearing on behalf of the Authority, contends that none of the grounds is vague. The diamonds which were found with the petitioner and his wife were completely forbidden articles and those could not have been imported without paying duty. Zirconium was found with the petitioner and his wife. On Zirconium duty was required to be paid. No duty was paid on such articles and in the Baggage Declaration Form the articles which were found with the petitioner and his wife were not declared. Again, Mr. Banerji submits that the articles were found very much concealed in the person of the petitioner and his wife. Details of the petitioner prior to visit to foreign countries and the act of smuggling have been referred to. So, the ground No. 1 cannot be said to be a single instance of smuggling. That has very much connection and relevancy with ground No. 2. Mr. Banerji relies on a decision reported in : 1974CriLJ702 , (Anil Dey v. State of West Bengal). It has been held that 'the veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention'. In this case, it cannot be said that the opinion of the officer is not honest and real and is fanciful or imaginary. Mr. Banerji next relies on a decision reported in : 1975CriLJ585 , (Babulal v. State of West Bengal). In this case, it has been laid down that 'the Supreme Court has been vigilant to see that isolated offences are not exploited by executive authorities for clamping down preventive detention insouciantly to by -pass the normal judicial processes. But, an action which is so manifestly suggestive of desperate daring, organized ganging and habitual proclivity of violence that it cannot be held unreasonable to infer therefrom a trendy course of criminal conduct..