TMI Blog2004 (5) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... llectively valued at Rs.13,71,700/- in Indian rupee were recovered from the person of the petitioner, the foreign currency notes having been concealed by him in two capsules concealed in his rectum. A case under the provisions of the Customs Act, 1962 was registered. Statement of the petitioner recorded by the authorities under Section 108 of the Customs Act disclosed that he (petitioner) along with one Iqbal had engaged in the illegal business of exporting foreign currency to Dubai. Later, a search of the residential house of the petitioner located at M-28, Second floor, Kalkaji, New Delhi was conducted and a demand notice No. 118/1996 bearing F. No. VIII(b)48(4)84/Cus/PR/95 dated 28th May, 1996 issued by the Assistant Commissioner of Customs, Penalty and Recovery Cell, Marine and Preventive Wing, Bombay and a letter dated 11th June, 1996 addressed to the Assistant Commissioner of Customs, Penalty and Recovery Cell, Marine and Preventive Wing, Mumbai were seized from his house. On further inquiry, it was revealed that an adjudication order No. CCP/ADJ/MGV/52/95 dated 16th October, 1995 was passed by the Commissioner of Customs, Preventive in regard to the seizure of 2329.700 gms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the adjudication order passed in 1995 against the petitioner, a copy of which has been supplied to him and, Therefore, there was nothing wrong or objectionable. On a thorough reading of the various grounds of detention and more particularly those contained in paragraphs 12 to 15, it is difficult to accept the above Explanation of the detaining authority with regard to the `statements of others' being relatable to the statement of Harbhajan Singh and another recorded in the 1995 adjudication proceedings. It appears to us that this phrase as well as the statements of others referred to above in this case was totally irrelevant as admittedly statement of no other person, except that of the petitioner was recorded by the Customs Authorities in the present case. 6. Yet another reason which would fortify our aforesaid conclusion is that in his representation to the detaining authority, the Central Government and the Central Advisory Board (COFEPOSA), the petitioner had specifically submitted that the statements of no other person except that of the petitioner as referred to in paragraph 15 of the grounds of detention finds mention in the list of documents and material `Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Division Bench judgment of the Bombay High Court in Crl.W.P. No. 246/1988 wherein the detention order was held to have been vitiated on the ground of certain typographical error appearing in the detention order and the Court observed that the liberty of an individual is important and sacrosanct and the detaining authority must take all precautions and should not take shield behind the alleged typographical errors. 9. There is no denial of the legal position that to avoid infraction of Article 22(5) of the Constitution, the entire material which constitute the grounds for detention and which has been considered by the detaining authority for arriving at his subjective satisfaction, should invariably be furnished to the detenu. Failure to do so will deprive the detenu of his valuable right of making an effective representation against the detention order. 10. In the case in hand, we have found the Explanation furnished by the detaining authority in his counter affidavit as untenable and, consequently, the impugned detention order when it refers to `statements of others' in para No. 15 of the grounds of detention, in absence of any such statements on record, passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or one inadmissible ground had been taken into consideration that would not make the detention order bad. 73. As has been siad by Benjamin Cardozo, A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future . The concept of grounds , Therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of the realities of the society and the purpose of the Act in question in the light of concepts of liberty and fundamental freedoms guaranteed by Articles 19(1), 21 and 22 of the Constitution. Reviewing several decisions in the case of Hansmukh v. State of Gujarat, 1980CriLJ1286 , this Court held that a democratic Constitution is not to be interpreted merely from a lexicographer's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people. The concept of grounds used in the context of detention in Art.22(5) of the Constitution and in sub-section (3) of S.3 of COFEPOSA, Therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions. While the expression grounds for that matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, Therefore, cannot be accepted. If that is the position then in view of S. 5A of the Act there was sufficient material to sustain this ground of detention. 12. Mr.K.K.Sud, the learned Additional Solicitor General has then referred to a recent judgment of the Supreme Court in the case of Union of India vs. Paul Manickam and Anr. JT 2003 (Supp 2 SC 503 wherein His Lordship Justice Arijit Pasayat speaking for the Court has fully considered the scope of writ of habeas corpus in relation to the fundamental right conferred by Article 22 of the Constitution. Mr.Sud has in particular relied on the following observations from the said judgment:- Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 2003 regarding which the statement of the petitioner alone was recorded by the customs authorities and placed before the detaining authority. Statement of no other person was recorded or constituted the material on the basis of which such satisfaction could be reached. Infact, the statement of the petitioner and other persons (though there existed none) constituted one and only one ground and not separate grounds. Therefore, it is not possible to hold that the impugned order which is vitiated on account of non-application of mind by the detaining authority, can be saved on the strength of Section 5-A of the Act. We, Therefore, hold that the impugned order is vitiated and is liable to be quashed on this ground alone. 14. Mr.Bagai then urged that the reply filed by the detaining authority would itself show that the detaining authority did not apply his own mind while passing the detention order and he has simply approved the draft detention order put to him by the lower functionaries in his departments. The reply reads as under:- It is further respectfully submitted that it is wrong on the part of the Petitioner herein to assume that the Detaining Authority had only one da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a procedure/practice as has been adopted in the case can be said to be in accordance with law or established procedure and practice which is followed in such like matters? We must remember that Section 3 of the Act provides for power to make detention order. Sub-section (1) of Section 3 of the Act speaks of the authorities who are competent to make detention orders. In the case of Central Government, an officer not below the rank of a Joint Secretary and in the case of State Government, not below the rank of a Secretary to that Government, who have been specially empowered for the purposes of Section 3, can only make detention orders. This clearly depicts the legislative intent that the task of passing a detention order can only be entrusted to high/senior functionaries of the State. Only such functionaries who are specially empowered in this behalf are entitled to pass the detention order if they are satisfied that the detention of any person is required 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 smuggling of goods etc. Therefore, the satisfaction envisaged in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as without application of mind by the detaining authority himself and the satisfaction recorded in the case in hand was not solely of the detaining authority. The impugned order is vitiated on this count as well. 15. The next ground pressed for by Mr.Bagai is also relatable to the non-application of mind or passing of the detention order in haste because of the shortage of time at the disposal of the detaining authority to consider the matter in an effective manner. In this connection, it is pointed out that a reply dated 6th May, 2003 filed by the Customs Authorities in the Court of learned Additional Sessions Judge to the bail application dated 28th April, 2003, moved by the petitioner is also stated to have been considered by the detaining authority. Mr.Bagai contended that if the said reply dated 6th May, 2003 was considered by the detaining authority, then there was hardly enough time at the disposal of the detaining authority to consider the voluminous material as appearing in annexure P-3 of the list of relied upon documents because only one day was available for considering the material, the detention order having been passed on 8th May, 2003. 16. To buttress his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indulging in smuggling activities was effectively foreclosed by the retention of his passport by the Customs Department. The Court held that the conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was pure speculation on the part of the detaining authority which was sufficient to invalidate the impugned detention order amongst other grounds. On the other hand, Mr.K.K.Sud, learned Additional Solicitor General has cited a later judgment of the Supreme Court in the case of Sitthi Zuraina Begum vs. Union of India Ors. 2002 (8) SCALE 561, wherein the above question was again considered and the Court observed as under:- .....it is urged on behalf of the detenu that on a solitary instance without any propensity to evade duty should not be made a ground for detention and particularly when his passport had been seized on the same day of his arrest, there is no chance of his committing further acts of smuggling for which he has now been detained. In the present case, it is stated that detenu's passport disclosed that he had made several trips abroad and he was not a man of such affluence as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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