Narendra Purshotam Umrao Vs. B. B.
Gujral & Ors [1978] INSC 230 (17 November 1978)
SEN, A.P. (J) SEN, A.P. (J) SARKARIA, RANJIT
SINGH TULZAPURKAR, V.D.
CITATION: 1979 AIR 420 1979 SCR (2) 315 1979
SCC (2) 637
CITATOR INFO :
F 1980 SC 798 (1) E 1980 SC 849 (4,6) R 1981
SC 510 (18) R 1981 SC1077 (1) R 1981 SC2069 (4) R 1981 SC2166 (13) R 1984
SC1334 (16) R 1987 SC 217 (6) F 1987 SC1748 (13) R 1987 SC1977 (7) R 1988
SC1256 (7) R 1988 SC2090 (29) RF 1990 SC 321 (23)
ACT:
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 -S- 3(1) Scope of,`- S. 8(b)- Constitutional
safeguards embodied in Art, 22(5) must be read into S. 8(b).
HEADNOTE:
The appellant was detained under s. 3(1) of
the Conservation of Foreign Exchange an(1) Prevention of Smuggling Activities
Act, 1974 with a view to prevent him from smuggling goods. Two representations
made by him against his detention were forwarded by the Government to the
Advisory Board with its comments. He was later produced before the Advisory
Board. On receipt of the Advisory Board's report that there was sufficient
cause for detention, the order of detention was confirmed by the Government.
The High Court dismissed his petition under
Art. 226 of the Constitution. In appeal the appellant challenged the order of
detention on the ground that (1) it was in violation of the right guaranteed under
Art. 22(5) inasmuch as the Government withheld consideration of the
representations made by him till after the hearing by the Advisory Board, and
(2) the impugned order of detention was bad due to non-application of mind of
the detaining authority inasmuch as the facts alleged clearly and distinctly
showed that the appellant did not himself smuggle the goods.
Dismissing the appeal, ^
HELD: (1)(a) There was no warrant for the
submission that the disposal of the representations made by the Government was
not in conformity with Art. 22(5) of the Constitution. [319H] (b) It is well
settled that in case of preventive detention of a citizen, Art 22(5) of the
Constitution enjoins that the obligation of the appropriate Government to
afford the detenu an opportunity to make a representation and to consider that
representation is distinct from the Government s obligation to constitute a
Board and to communicate the representation, amongst other material, to the
Board to. enable it to form its opinion and to obtain such opinion. [321E]
Abdul Karim & ors. v. State of West Bengal, [1969] 3 SCR 479; Pankaj Kumar
Cluakrabarly & ors. v. State of West Bengal, [1970] 1 SCR 543, Khuairul
Haque v. The State of West Bengal W. P. No. 246 of 1969, decided on September
10, 1969, Jayanarayan sukul v. State of West Bengal, [1970] 3 SCR 225. Dhurus
Kanu v. State of West Bengal, AIR 1975 SC 571; referred to.
(c) The constitutional safeguards embodied in
Art.
22(5) must be read into the provisions of s.
8(b) of the Conservation of Foreign Exchange and Preventional of Smuggling
Activities Act, 1974 to prevent any arbitrary executive action. Merely because
there is no express provision in s. 8(b) of the Act placing an obligation to
forward the representation made by the detenu along- 316 with the reference to
the Advisory Board unlike the provisions contained in s. 9 of the Preventive
Detention Act, 1950 and s. 10 of the Maintenance of Internal Security Act, 1971,
it cannot be said that there is no obligation cast on the Government to
consider the representation made by the detenu before forwarding it to the
Advisory Board.
[325C; 322D-E] Thaneshwar Singh v. The Union
of India & ors., Cr. W. No. 6 of 197 decided on September 25, 1978 (Delhi
High Court); over-ruled.
(d) When the liberty of the subject is
involved, whether it is under the Preventive Detention Act or the Maintenance
of Internal Security Act or the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, it is the bounden duty of the Court to satisfy
itself that all the safeguards provided by the law had been scrupulously
observed and that the subject was not deprived of his personal liberty
otherwise than in accordance with his.
[322-G] (e) When any person is detained in
pursuance of an order made under any law providing for preventive detention the
authority making the order shall, as soon as may be, communicate to such person
the ground on which the order had been made and shall afford him the earliest
opportunity of making representations against the order. These procedural
safeguards are ingrained in our system of judicial interpretation. The power of
preventive detention by the Government under the Act is necessarily subject to the
limitations enjoined on the exercise of such power by Art.
22(5) of the Constitution. [323A] Khudiram
Das v. The State of West Bengal & ors. AIR 1975 SC 550 referred to.
In the instant case there was no infraction
of constitutional safeguards enshrined under Art. 22(5) and there was no
failure on the part of the Government to discharge its obligations under that
article. Quite clearly the Government had forwarded the appellant's two
representations alongwith its comments to the Advisory Board. A perusal of the
comments of the Government make it clear that the Government had already formed
an opinion that the order of detention was in conformity with its powers under
the law. It cannot be said that in rejecting the appellant's representations
the Government was influenced by the views expressed by the Board. At the
hearing the Board had not indicated its mind as to whether there was sufficient
cause for detention. It is, therefore, irrefutable that the Government had
taken a decision uninfluenced by what transpired at the hearing before the
Board. The matter was dealt with by the Government all: all levels, and the
detaining authority had come to an independent conclusion of its own by
applying its mind to the facts and circumstances of the case. [325D-H] (2)(a)
The intention of the legislature in enacting s.
3(1) was to treat the smuggling of goods and
abetting the smuggling of goods as grounds separate and distinct and both are
separate grounds for detention i.e. to take in all such activities which result
in accomplishment of smuggling of contraband goods. 'the term 'smuggling' as
defined in s.
2(e) of the Act read with s. 2(39) and s 111
of the Customs Act, is wide enough to include and make liable not only the
actual smugglers but also persons abetting the smugglers, of contraband goods
as well as all persons dealing with any such goods. A wider meaning is given to
the term 'smuggling' in s. 2(e) of the Act with a view to broaden the scope of
Preventive detention. In a case like the present where a wide 317 spread
network is employed by a person, it cannot be said that he was not Engaged in
the act of smuggling. The appellant was not only the person who instigated,
organised and facilitated the smuggling of the contraband goods but he was
really a person to whom the goods belonged. The facts set out in the ground of
detention make it clear that the appellant was the person who was actually
engaged in the act of smuggling of contraband goods into the Indian Customs
waters For all intents and purposes the appellant was the actual smuggler and
not a mere abettor His " activities were such that his case would be
covered by both clauses (i) and (ii) of s. 3(1) of the Act. [326G-H; 327A-B]
(b) Assuming that the appellant was merely an abettor in the smuggling of
contraband goods on this occasion, still his activities in this transaction
afforded sufficient grounds for the prognosis that he would have himself
included in actual smuggling of the balance of contraband goods by remaining
behind in the foreign country. [329D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 451 of 1978.
Appeal by Special leave from the Judgment AND
order dated S-G-78 of the Bombay High Court in Criminal Application No. 15 of
1978.
Ram Jethmalani Ashok Desai, S. J. Thakore, K.
R. Krishnamurthy, Sri Narain for M/s J. B. Dadachanji and Co.
for the Appellants.
H. R. Khanna and M. N. Shroff for the State
of Maharashtra.
P. N. Lekhi, Girish Chandra and Miss A.
Subhashini for Union of India.
The judgment of the Court was delivered by
SEN, J.-This appeal by special leave directed against a judgment of the Bombay
High Court dated 5th June, 1978, dismissing a petition filed by the appellant
under Article 226 of the Constitution, by which he prayed for the issue of a
writ of habeas corpus, and the connected petition under Article 32 of the
Constitution by his wife for the issuance of a writ of habeas corpus for his
release raise a common question and therefore they are disposed of by this
common judgment.
A vessel known as 'Jamnaprasad' BLS-61 valued
at one lac of rupees was found grounded in a creek off the coast near village
KimKhadi on the 20th August, 1977. On receipt of information regarding the
grounding of the vessel the Customs officers, Hansot, visited the spot and
examined the contents of the cargo aboard the aforesaid grounded vessel.
It was laden with 12 rolls of stainless steel
sheets each weighing one tonne, valued at Rs. 15,44,400/-. The aforesaid vessel
and the contraband goods found aboard it were seized by the 318 Customs
officers for action under the Customs Act, 1962.
They made inquiries about the whereabouts of
the crew members of the aforesaid vessel 'Jamnaprasad' and were successful in
apprehending them and the others involved.
Intelligence gathered by the Customs officers
clearly indicate that the appellant was the main person connected with the
smuggling of the aforesaid cargo of contraband goods, namely 12 stainless steel
sheets recovered from vessel 'Jamnaprasad' BLS-61.
The appellant, who ostensibly carries on the
business of manufacturing, sale and export of Umrao brand wick stoves, spray
pumps, cash and jewellery metal boxes, in the name and style of "Umrao
Industries" and has his factory for the manufacture of the aforesaid items
at village Kim, has been detained by an order of the Addl. Secretary to the
Government of India, Ministry of Finance (Department of Revenue), New Delhi,
dated the 1st of February, 1978 under sub s. (1) of s. 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view
to prevent him from smuggling goods. He was arrested and placed under detention
on the 5th of February, 1978, and is at present detained in the Central Prison,
Bombay. At the time of his arrest, the appellant was served with the order of
detention together with the grounds of detention with full particulars on which
the order of detention was based.
On 15th February, 1978 the case was referred
by the Government to the Advisory Board as required under s. 8(b) of the Act to
enable the Board to make its report under sub- cl. (a) of cl. (4) of Article 22
of the. Constitution.
The appellant made two representations
against his detention to the Government, one dated the 4th and the other dated
the 6th of March, 1978, which were received by the Government on the 7th and
8th March, 1978, respectively. The Advisory Board had, in the meanwhile
addressed a letter dated 21st of February, 1978, to the Government intimating
that the case would be taken up on the 13th March, asking that the detenu be
produced at the hearing and the Government should also forward the
representation, if any, made by the appellant, together with the
comments/decision of the Government, if any. On the 13th of March, the
appellant was accordingly produced before the Advisory Board. The Government placed
before the Board the two representations made by the appellant together with
its comments. The appellant was heard in person; the Government's point of view
was placed before the Advisory Board by the Deputy Secretary to the Government,
Ministry of Finance, Department of Revenue, who was accompanied by the
Assistant Collector. Customs, 319 Bulsar. On the 16th of March, 1978, the
appellant sent a telegram to the Advisory Board supplementing his oral
submissions. The detaining authority rejected the representations made by the
appellant on 1 8th of March, 1978. On 10th of April, 1978 the Advisory Board
submitted its report giving its opinion that there was sufficient cause for the
detention. The Government accordingly confirmed the order B, of detention.
In the light of the circumstances appearing,
it was conceded that the grounds for detention set out the facts with
sufficient degree of particularity and that it did furnish sufficient nexus for
forming the subjective satisfaction of the detaining authority. The order of
detention was, therefore, not challenged on the ground that the grounds
furnished were vague or indefinite or lacking in particulars or were not
adequate or sufficient for the satisfaction of the detaining authority, or for
the making of any effective representation.
It is argued that the detention of the
appellant was, however, bad for two reasons namely, (1) the detention was in
violation of the constitutional right guaranteed under Article 22(5), inasmuch
as the Government withheld consideration of the representations made by the
appellant till after the hearing before the Advisory Board, and (2) the
impugned order of detention is bad due to non- application of mind inasmuch as
the facts alleged clearly and distinctly show that the appellant did not
himself smuggle the contraband goods. Both the contentions are, in our opinion,
wholly devoid of substance.
It is urged that the Government was under a
constitutional obligation to consider the representations before the hearing
before the Advisory Board. There is no quarrel with the principle but the
difficulty is about the application of the principle on the facts and
circumstances of the present case.
In fact, the Government has to reach its
decision uninfluenced by the opinion of the Advisory Board. It is, however,
urged that the Government; in This particular case, had not made up its mind
till the hearing before the Advisory Board on 13th March, 1978, and therefore,
its decision reached on the 18th March was not that independent application of
mind that the law requires, because by then the proceedings had: begun before
the Board and the Government must have been influenced in its decision.
There is no warrant for the submission that
the disposal of the 1 representations made by the Government, in the instant
case, was not in conformity with Article 22(5) of the Constitution. First, we
shall 320 deal with the law on the subject before dealing with the factual
aspect. Article 22(5) of the Constitution enacts:
"When any person is detained in
pursuance of an order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order." In
Abdul Karim & ors. v. State of West Bengal(t) this Court interpreted the
language of Article 22(5) and observed:
"Article 22(5) does not expressly say to
whom the representation is to be made and how the detaining authority is to
deal with the representation. But it is necessarily implicit in the language of
Art. 22(5) that the State Government to whom the representation is made should
properly consider the representation as expeditiously as possible. The constitution
of an Advisory Board under section 8 of the Act does not relieve the State
Government from the legal obligation to consider the representation of the
detenu as soon as it is received by it." It was further observed:
"In our opinion, the constitutional
right to make a representation guaranteed by Art. 22(5) must be taken to in
elude by necessary implication the constitutional right to a proper
consideration of the representation by the authority to whom it is made. The
right of representation under Art. 22(5) is a valuable constitutional right and
is not a mere formality. It is, therefore, not possible to accept the argument
of the respondent that the State Government is not under a legal obligation to
consider the representation of the detenu or that the representation must be
kept in cold storage in the archives! of the Secretariat till the time or
occasion for sending it to the Advisory Board is reached. If the view point
contended for by the respondent is correct, the constitutional right under Art.
22(5) would be rendered illusory." Thus the two obligations of the
Government to refer the case of the detenu to the Advisory Board and to obtain
its report on the one hand and to give an earliest opportunity to him to make a
representation and consider the representation on the other, are two distinct
obligations independent of each other.
(1) [1969] 3 SCR 479, 321 In Pankaj Kumar
Chakrabarty & ors. v. State of West Bengal(1), this Court again considered
cl. (5) of Art. 22 and enunciate the Following principle:
"In our view, it is clear from cls. 4
and S of Art. 22 that there is a dual obligation on the appropriate Government
and a dual right in favour of the detenu, namely, (1) to have his
representation irrespective of the length of detention considered by the
appropriate Government and (2) to have once again that representation in the
light of the circumstances of the case considered by the board before it gives
its opinion. If in the light of that representation the board finds that there
is no sufficient cause for detention the Government has to revoke the order of
detention and set at liberty the detenu. Thus, whereas the Government considers
the re presentation to ascertain whether the order is in conformity with its
power under the relevant law, the board considers such representation from the
point of view of arriving at its opinion whether there is sufficient cause for
detention." It is, therefore, well settled that in case of preventive
detention of a citizen, the Constitution by Art.
22(5) as interpreted by this Court, enjoins
that the obligation of the appropriate Government to afford the detenu the
opportunity to make a representation and to consider that representation is
distinct from the Government's obligation to constitute a Board and to
communicate the representation, amongst other materials, to the Board to enable
it to form its opinion and to obtain such opinion.
The nature of the dual obligation of the
Government and the corresponding dual right in favour of the detenu under Art.
22(5) was reiterated by this Court in Khairul Haque v.
The State of West Bengal(2) in these words:
"It is implicit in the language of Art.
22 that the appropriate Government, while discharging its duty to consider the
representation, cannot depend upon the views of the Board on such
representation. It has to consider the representation on its own without being
influenced by any such view of the Board. There was, therefore, no reason for
the Government to wait for considering the petitioner's representation until it
had received the report of the Advisory Board. As laid down in Sk. Abdul Karim
& ors. v.. State of West Bengal (supra), the obligation of the appropriate
(1) [1970] I SCR 543.
(2) W.P. No. 246 of 1969, decided on
September 10, 1969.
322 Government under Art. 22(5) is to
consider the representation made by the detenu as expeditiously as possible.
The consideration by the Government of such representation has to be, as
aforesaid, independent of any opinion which may be expressed by the Advisory
Board.
The fact that Art. 22(5) enjoins upon the
detaining authority to afford to the detenu the earliest opportunity to make a
representation must implicitly mean That such representation must, when made,
be considered and disposed of as expeditiously as possible, otherwise, it is
obvious that the obligation to furnish the earliest opportunity to make a
representation loses both its purpose and meaning." The same procedural
safeguards were reaffirmed by this Court in Jayanarayan Sukul v. State of West
Bengal (1) and Dhurus Kanu v. State of West Bengal.(2) The High Court in this
case, and the Delhi High Court in Thaneshwar Singh v. The Union of India &
ors.(3) appear to be labouring under misconception that merely because there is
no express provision in s.8(b) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act placing an obligation to forward the
representation made by the detenu along with the reference to the Advisory
Board, unlike those contained in s.9 of the Preventive Detention Act, 1950 and
s.10 of the Maintenance of Intemal Security Act, 1971 there is no obligation
cast on the Government to consider the representation made by the detenu before
forwarding it to the Advisory Board.
We have no doubt in our mind that when
liberty of the subject is involved, whether be it under the Preventive Detention
Act or the Maintenance of Internal Security Act or the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, it is the bounden duty of
the court to satisfy itself that all the safeguards provided by the law have
been scrupulously observed and that the subject is not deprived of his personal
liberty otherwise than in accordance with law.
The relevant Articles of the Constitution
having a bearing on this question is Art. 22. Two of these safeguards, which
relate to the observance of the principle of natural justice and which a
fortiori are intended to act as a check on the arbitrary exercise of power, are
tor be found in Art. 22(5) of the Constitution.
(1) [1970] 3 SCR 225.
(2) AIR 1975 SC 571.
(3) Cr W. No 6 of 1978 decided on September
25, 1978 (Delhi High Court) 323 When any person is detained in pursuance of an
order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such person the
'grounds' on which the order has been made and shall afford him the earliest
opportunity of making representation against the order, These procedural
safeguards are ingrained in our system by judicial interpretation. The power of
preventive detention by the Government under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, is necessarily
subject to the limitations enjoined on the exercise of such power by Art 22(5)
of the Constitution. as constructed by this Court. Thus, this Court in Khudiram
Das v. The State of West Bengal & ors (1) observed:
"The constitutional imperatives enacted
in this article are two-fold: (1) the detaining authority must, as soon as may
be, that is, as soon as practicable after the detention, communicate to the
detenu the grounds on which the order of detention has been made, and (2) the
detaining authority must afford the detenu the earliest opportunity of making a
representation against the order of detention. These are the barest minimum
safeguards which must be abserved before an executive authority can be permitted
to preventively detain a person and thereby drown his right of personal liberty
in the name of public good and social security." This has always been the
view consistently taken by this Court in a series of decision. It is not
necessary to burden this judgment with citations of these decisions. The view
to the contrary taken by the Bombay and the Delhi High Courts that these
procedural safe- guards are not available to a person detained under the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act is clearly
wrong.
The Constitution is all pervasive. All laws
made by a State must, therefore, yield to constitutional limitations and
restrictions. The citizen's right to personal liberty is guaranteed by Article
22 irrespective of his political beliefs, class, creed or religion. This Court
has forged certain procedural safeguards in the case of preventive detention of
citizens. These safeguards might be designated as a regulative 'Postulate of
Respect', that is, respect for the intrinsic dignity of the human person.
(1) AIR 1975 SC 550.
324 In pursuit of the idealistic
considerations as to the inherent worth and dignity of men, the Parliament, in
the light of the experience gained recently, repealed the Maintenance of
Internal Security Act. The repeal of that Act is necessitated to promote the
citizen's right to personal liberty, which is a fundamental and pervasive theme
of the Constitution, to guard against the preventive detention of a person for
political beliefs. This was also in accord with the recommendation of the Law
Commission in its Forty- seventh Report, p. 2, para 1.4, that preventive
detention should be retained only for preventing anti social and economic
offences. The repeal of the Maintenance of Internal Security Act and the
retention of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, however, does not imply that preventive detention, which is an
anachronism in a democratic society like ours, can be freely used, without any
power of judicial review and without any checks and balances, against persons
engaged in anti-social and economic offences. This assumption by the two High
Courts ignores centuries of judicial lawmaking when it denies the competence of
courts to weigh competing social interests. The courts have always viewed with
disfavour the detention without trial whatever be the nature of offence.
The detention of individuals without trial
for any length of time, howsoever short, is wholly inconsistent with the basic
ideas of our Government.
To put it less euphemistically, the
alternative is the renunciation of judicial review itself, and acceptance of
the intolerable principle that the Government is the judge of its own powers.
So, this Court observed in Prabhu Dayal Deorah v. District Magistrate, Kamrup:
"We say and we think it is necessary to
repeat, that the gravity of the evil to the community resulting from antisocial
activities can never furnish an adequate reason for invading, the personal
liberty of a citizen, except in accordance with the procedure established by
the constitution and the laws. The history of personal liberty is largely the
history of insistence on observance of procedure. Observance of procedure has
been the bastion against wanton assaults on personal liberty over the years.
Under our Constitution, the only guarantee of personal liberty for person is
that he shall not be deprived of it except in accordance with the procedure
established by law. The need today for maintenance of supplies and services
essential to the community cannot be over- emphasized. There will be no social
security without maintenance of adequate supplies (1) [1974] 2 S.C.R. 12 at
22-23.
325 and services essential to the community.
But social security is not the only goal of a good society. There are other
values in a society. Our country is taking singular pride in the democratic
ideals enshrined in its Constitution and the most cherished of these ideals is
personal liberty. It would indeed be ironic if, in the name of social security,
we would sanction the subversion of this liberty." The constitutional
safeguards embodied in Art. 22(5) of the Constitution, as construed by this
Court, must, therefore, be read into the provisions of s. 8(b) of Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to prevent
any arbitrary executive action.
In the instant case, however, there was no
infraction or the constitutional safeguards enshrined in Art. 22(5). We are
satisfied that there was no failure on the part of the Government to discharge
its obligation under Art. 22(5). The records of the Government as well as of
Advisory Board have been placed before us It clearly shows that the Government
had forwarded the two representations made by the appellant on the 4th and 6th
of March, 1978, alongwith its comments in writing together with a forwarding
letter on the 9th of March, 1978. From a bare perusal of the forwarding letter
and the accompanying para-wise comments in writing, it is amply clear that the
Government had already formed an opinion that the order of detention was in
conformity with its powers under the law. It cannot, therefore, be said that
the Government in rejecting the representations made by the appellant by its
order dated 18th March, 1978 was, in any way, influenced by the views expressed
by the Board. Though, the Government was represented at the hearing by the
Deputy Secretary, Ministry of Finance, Revenue Department, and the Assistant
Collector, Customs, Bulsar, it is nobody's case that the Advisory Board had at
the hearing indicated its mind as to whether there was sufficient cause for detention.
On the contrary, the telegram sent by the
appellant on the 16th March, 1978 ex facie shows that the Board had not
expressed its mind at the hearing. It is, therefore, irrefutable that the
Government had taken a decision uninfluenced by what transpired at the hearing
before the Board. The matter was dealt with by the Government at all levels,
and the detaining authority had come to an independent conclusion of his own by
applying his mind to the facts and circumstances of the case. Here, similarly the
Board by its report dated the 10th April, 1978 independently arrived at its
opinion that there was sufficient cause for detention .
326 Learned counsel for the appellant next
strenuously contends that there was non-application of mind on the part of the detaining
authority. It was submitted that though the order for detention was made with a
view to preventing the appellant from smuggling goods, i.e., under cl. (i) of
sub- s. (1) of s. 3 of the Act, his case on the facts revealed in the grounds
for detention clearly fell under cl.(ii) of sub- s.(1) of s. 3, as he could
not, by any stretch of imagination, be treated to be a smuggler but he was only
an abettor. May be, he instigated, organised and facilitated the act of
smuggling, but it is said, the actual smuggling of the contraband goods, was by
others. His act, therefore, constituted abetment of smuggling for which there
is a separate clause under s. 3(i)(ii). The order of detention cannot,
therefore, be justified under s.3(1) (i). Applying a wrong clause, it is urged,
shows non-application of mind. We are afraid, the learned counsel is stretching
the argument too fine.
Section 3(1) of the Act, so far material
reads:
The Central Government or the State
Government or any officer of the Central Government, not below the rank of a
Joint Secretary to that Government, specially em powered for the purposes of
this section by that Government, or any officer of a State Government, not
below the rank of a Secretary to that Government, specially em powered for the
purposes of this section by that Government, may, if satisfied, with respect to
any person (including a foreigner), that, with a view to preventing him from
acting in any manner prejudicial to the conservation or augmentation of foreign
exchange or with a view to preventing him from- (i) smuggling goods, or (ii)
abetting the smuggling of goods, or;" There is, no doubt, a distinction
between an act of smuggling and abetting the smuggling of goods for purposes of
preventive detention under s. 3 (1) of the Act.
Nonetheless, the term "smuggling' as
defined in s. 2(e) of the Act has the same meaning as in s. 2(39) the Customs
Act, 1962, which, when read with s. 111 of that Act, is wide enough to include
and make liable not only the actual smuggler but also persons abetting the
smuggling or contraband goods as well as all persons dealing in such goods,
etc. Though the provisions of cls. (i) and (ii) of sub-s(1) of s. 3 of the Act
may operate on different fields, which may sometimes, as here, overlap, still a
wider meaning is given 327 to the term 'smuggling in s. 2(e) of the Act, with a
view to broaden the scope of preventive detention. Sub-section (1) of s. 3 of
the Act provides for the different grounds of detention. Clause (i) relates lo
smuggling of goods, clause (ii) relates to abetting the smuggling of goods,
clause (iii) relates to engaging in transporting or concealing or keeping
smuggled goods, clause (v) relates to harbouring persons engaged in smuggling
goods or in abetting the smuggling of goods. It must, therefore, be assumed
that the intention of the legislature was to treat the smuggling of goods and
abetting the smuggling of goods as grounds separate and distinct, and both are
separate grounds for detention i.e., to take in all such activities which
result in accomplishment of smuggling of contraband goods.
In a case like the present, where there is a
widespread network employed by a person, it cannot be said that he is not
engaged in the act of smuggling. It is accepted before us that the appellant.
instigated, organised and facilitated the smuggling of the contraband goods in
question. Not only that but he is really the person to whom the goods belonged.
The appellant went to the extent of going to
Dubai for purchasing the contraband goods, had thereafter taken delivery of the
same at Dubai and had them loaded into the vessel; the vessel actually belonged
to the appellant and the crew members were engaged by his agent Siddiq Hussain,
who was sent from Bombay to Dubai to bring the vessel. He took charge of the
vessel as a tindel and but for the fact that the rudder of the vessel failed,
the contraband stainless steel rolls would have landed in the creek near The
factory of the appellant.
It is clear that Kunji Mohmed, in whose name
the vessel 'Jamnaprasad' BLS-61 was registered, was merely a dummy but the
vessel actually belonged to the appellant, who had purchased it from one Kasam
Jamal for a sum of Rs. 40,000/-.
It was he who got the vessel repaired at
Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup,
engaged the members of the crew. It appears that the appellant left for Dubai
on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977.
He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine
of 100 Dirhams per day for his over-stay.
During his period of stay at Dubai, he
purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also
appears that the appellant and Kunji Mohmed wanted to load the whole of the
contraband good into the vessel but the driver Ali and Amad Mamad, the tindel,
refused to carry such a heavy cargo. The appellant told them that 328 he would
go to Bombay and send Siddiq Hussain Sup. It further appears that the oil
engine in the vessel was replaced, with his concurrence, with a new diesel
engine.
After his departure, only 12 rolls of
stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad
Mamad. Thereafter, while the vessel was on its voyage to India it developed
engine trouble and had to remain at sea for about ten days whereafter, it
returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had
reached there from Bombay, on instructions from the appellant, and took charge
of the vessel as tindel. The vessel again left Sarjah port but had W remain in
the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage
of about 6 to 7 days, the vessel reached near the coast of India outside the
creek where it was found grounded. It had to be anchored at a place known to
Siddiq Hussain Sup, that is, near about the factory of Umrao Industries
belonging to the appellant in village Kim, but the crew members lost the track
and had to move around the creek for about 4 days because the rudder had
failed. Then lt entered the aforesaid creek, some 20 kms. away from the
factory, where it ran aground due to damage to the rudder.
During a search of the house of Kunji Mohmed,
certain documents relating to the repairs of vessel No. BLS-61 and a dairy
containing telephone Nos. 395279, 375943 and 361973 and also one postal receipt
No. 55955 issued by Jamnagar Post office showing looking of a trunk call to
telephone No. 395279 or 375943 were found. The first two telephone numbers have
been installed at the Bombay office of the appellant, while the third is at his
residence at Bombay.
The postal receipt No. 55955 showed that this
trunk call from Jamnagar was booked for Bombay in the name of the appellant.
Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed
that the former trunk call was booked by him to Okha telephone No. 91 with
Siddiq Hussain Sup as P.P., while the latter was in respect of the return call
(lightening) made by the appellant to the aforesaid okha telephone. The trunk
call booked from telephone No. 91 okha was to the appellant's office telephone
No. 395279 in Bombay with P. P. Babubhai.
Obviously, the over-stay of the appellant at
Dubai was in connection with the loading of the contraband stainless steel
sheet rolls, which have been valued at Rs. 15,44,400/- . The synchronising of
the visit with the taking of the vessel to Dubai, and then loading of the
stainless steel rolls for the purpose of transportation to India, are very
significant and unimpeachable circumstances to show the smuggling pro pensities
of the appellant.
329 It is quite clear from the facts set out
in the grounds of detention, that the appellant was the person who was actually
engaged in the act of smuggling of the contraband stainless steel rolls into
the Indian customs waters. It is, therefore, clear that for all intents and
purposes the appellant was the actual smuggler and not a mere abettor.
Furthermore, the activities of the appellant
were such that his case would be covered by both clauses (i) and (ii) of s. 3(1)
of the Act. Thus, there was due application of mind.
It is manifest that the appellant could in
the instant case be detained under sub-s.(1) of s. 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under
clauses (i) and (ii) thereof. In any case, even assuming that the appellant was
merely an abettor of the smuggling of 12 rolls of stainless steel sheets on
this occasion, still his activities in this transaction afforded sufficient
grounds for the prognosis that he would have himself indulged in actual
smuggling of the balance lot of 8 rolls of stainless steel sheets remaining
behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was
properly invoked.
In the result, both the appeal as well as the
writ petition must fail and are dismissed. There shall be no order as to cost
P.B.R. Appeal and Petition dismissed.
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