TMI Blog2005 (3) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... 244. 50 ps. The same was seized under panchnama under the provisions of the CUSTOMS ACT, 1962 and in the statement recorded under section 108 of the Customs Act, the detenu claimed that the seized currency was brought by him from Singapore after necessary declaration and the same was being carried back to Singapore. The impugned order of detention came to be passed on 3-11-2004 and it was actually executed by arrest and detention of the detenu on 2-12-2004. (3) IT is the case of the petitioner that the impugned order of detention has been based on two heads of detention as available under section 3 (1) (i) and (iii) of the COFEPOSA. While Clause (i) relates to preventing the detenu from smuggling goods in future, the Clause (iii) relates to preventing the detenu from engaging in transporting or concealing or keeping smuggled goods in future. It is the case of the petitioner that the records before the Detaining authority nowhere disclosed any material which could reveal that the detenu was engaged in transporting or concealing or keeping smuggled goods and therefore there was no occasion for the Detaining Authority to get herself subjectively satisfied about the need for issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order can be issued under the different heads enumerated thereunder but when the order is issued under more than one head, the grounds in support of such order should disclose the materials in support of each of the heads on which such order is issued and in case of absence of such materials and grounds in support of any one head on which such composite order is issued, would render the entire order to be bad in law. Referring to the grounds in support of the detention order, the learned Advocate for the petitioner has submitted that the same apparently disclose that the materials which were placed before the Detaining Authority did not include any material which could reveal that the detenu was ever engaged in the activity of transporting or concealing or keeping smuggled goods as such. In the absence of iota of evidence regarding the involvement of the detenu in transporting or concealing or keeping of smuggled goods, there was no occasion for the Detaining Authority to arrive at the subjective satisfaction about the need for issuance of the detention order against the detenu in terms of the provision comprised under section 3 (1) (iii) of the COFEPOSA and as the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n currency which was handed over to the detenu by Navin Tanna was undisputedly the currency which was purchased by the detenu from Navin Tanna and that the detenu for the purpose of business of tours and travel used to frequently travel to Hong Kong, Singapore, Philippines etc. , and the investigation has revealed that the detenu had been engaging in such activities without necessary declaration regarding the possession of such foreign currency with him to the Government authorities as well as without declaration in that regard in the income-tax returns. Besides, his engagement in such activities is also revealed from his admission that he used to keep the foreign currency with his girlfriend by name Sharda. In any case, according to the learned A. P. P. , the challenge being restricted to only one head of detention even assuming that there are no sufficient materials to justify the detention under the said head, the entire order cannot be said to be bad in law as the order of detention based on each ground is an independent order and the same principle would apply to the order under different heads and therefore, according to the learned a. P. P. , there is no case for interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do, make an order directing that such person be detained. The proviso thereto provides that no order of detention shall be made on any of the grounds specified in the said sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J and K Ordinance 1 of 1988 ). The sub-section (2) of section 3 provides that when any order of detention, is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central government a report in respect of the order. The sub-section (3) of section 3 provides that for the purpose of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion in this regard is two-fold. Firstly, that the provisions of section 5-A of the cofeposa are not attracted in such cases, and secondly, such an order would disclose non-application of mind by the Detaining Authority while arriving at the subjective satisfaction regarding the need for issuance of the detention order on the relevant heads. (11) AS regards the non-applicability of section 5-A of the COFEPOSA, it can hardly be disputed that section 5-A specifically relates to the grounds in support of the detention order and it does not relate to the heads which are enumerated under section 3. Besides it is well-settled that an order of detention, even though issued under one head, when supported by more than one ground, it is equivalent to number of grounds and the order would be construed as consisting of as many orders as the grounds are. Section 5-A is essentially in relation to the grounds in support of the detention. The question than arises, merely because section 5-A refers to the grounds in support of detention, can it be said that once the order passed under different heads is found to be defective in relation to one of the heads, irrespective of the grounds supportin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has not pointed out a single judgment directly on the point either of the Apex Court or of any High Court in this regard. All the judgments which have been cited are in relation to different issues based on which inference is sought to be drawn that moment the order based on more than two heads is found to be unsustainable on one head, when challenged before the Court, then the entire order should be held to be defective and invalid. Such a proposition cannot be accepted. (13) IN the unreported decision in the matter of (Smt. Padmavati Jayantilal soni v. Union of India and others), Cri. W. P. No. 200 of 1986 delivered by the division Bench of this Court on 11-6-1986, which is relied upon by the petitioner, the order of detention was issued to prevent the detenu from smuggling goods, abetting the smuggling of goods and engaging in transporting smuggled goods. The decision is on the point about the absence of material before the Detaining Authority to hold that the hashish which was seized was smuggled goods within the meaning of the said expression under the cofeposa read with the Customs Act. The decision is not on the issue regarding the point canvassed on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who were the main financiers and organisers of the smuggling activities. The nexus between the detenu and the said persons was sought to be established based on the documents recovered from the premises searched by the investigating agencies. Besides, the affidavit filed by the detaming Authority in support of the detention order disclosed a statement contrary to the contents of the grounds in support of the detention order. (16) IN the unreported decision in the matter of Hajarimal Veerchand Jain v. State of Maharashtra and others Criminal Writ Petition No. 329 of 1984 delivered on 12-11-1984, which was relied upon by the Division Bench in Babulal dhanji Makwana's case, the Division Bench referring to the facts of that case had observed that merely purchasing from seamen, may be unknown, the goods which were already smuggled goods, would neither amount to smuggling nor abetment thereof, and therefore, there can be no justification for concluding that the person purchasing such goods was smuggling such goods or was abetting smuggling of goods and therefore the detention of such person on the ground that it is necessary to prevent him from doing so in future, would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e details of the document which is being relied on but factually, the detention order is based on one ground, which is revealed by ground (1) (xvi) of the grounds of detention which we have already quoted hereinbefore. Thus on the facts of this case section 5-A has no application in the present case . (20) IN (Dharamdas Shamlal Agarwal v. Police Commissioner and another), reported in 1989 (2) S. C. C. 370, which is a decision in relation to the detention under the Gujarat Prevention of Anti-Social Activities Act, 1985 and where the detenu was sought to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order and dealing with the contention regarding the non-placement of the material fact before the Detaining Authority before issuance of the order of detention, it was held that the same amounted to non-application of mind by the Detaining Authority which resulted in vitiating the subjective satisfaction of the Detaining Authority rendering the order of detention to be invalid. (21) IT is thus seen that none of the above decisions sought to be relied upon are on the point which is sought to be canvassed. Being so, none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations by the Apex Court in Amratlal prajivandas case (supra) which reads thus : though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft or signal material, theft of telegraph copper wires in huge quantity and removal of railway, fish-plates were held sufficient. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order obviously fails. Nevertheless, considering the fact that it is a detention order which imposes restraint on the free movement of the detenu, it would be appropriate to consider whether the grounds in support of the detention makes out the case for subjective satisfaction of the Detaining Authority for issuance of the detention order under the head enumerated under section 3(1)(i) of the COFEPOSA. 25. The grounds in support of the detention clearly refer to the fact that the detenu while he was about to leave for Singapore via Flight No.AI-480, scheduled to leave CSI Airport, Sahar, Mumbai at 01:50 hours on 20-8-2004, the detenu was found carrying USD and Euro currencies concealed in his hand-bag without declaring the same to the customs authorities. In fact, the detenu was intercepted after he had cleared the A, B, C procedure and had proceeded towards the escalator leading to the security check area and on search, he was found carrying USD 81,000.00, Euro 7,600.00 and some Singapore dollars in his hand-bag. A detail examination of the baggage led to the seizure of the foreign currency of USD 81,000.00, Euro 7,600.00 and 366 Singapore dollars, totally equivalent to India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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