TMI Blog1978 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... 833 of 1978 - - - Dated:- 7-11-1978 - For the Appellant : Ram Jethmalani and H. S. Parihar For the Respondent : M. N. Phadke and B. D. Sharma and M. N. Shroff, Girish Chandra, R.B. Datar and Miss A. Subhashini JUDGMENT KAILASAM, J.- After hearing the arguments we allowed the appeal on 5-10-1978 and directed that the detenu be set at liberty forthwith indicating that the detailed judgment would follow. We now proceed to give reasons for our order. This appeal is preferred by the wife of one Virendra Ramniklal Kapadia,, a detenu, by special leave against the judgment of the High Court of Gujarat at Ahmedabad dismissing the writ petition for the issue of a writ of habeas corpus. On 22nd September, 1974 the District Magistrate, Surat, directed the detention of the detenu under section 3(1) (c) (i) and section 3 (2) of the Maintenance of Internal Security Act, 1971. The detenu was supplied with the grounds of detention on 27th September, 1974. The detention order passed under the Maintenance of Internal Security Act A was cancelled on 9th December, 1974 and the detenu was released. On 7th February, 1977 by an order under section 3(1) of the Conservation of Foreign Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing has been disclosed to implicate the detenu in any fresh activity. As the order was based on the activities of the detenu in 1973 and 1974 before the detenu was released, the order of detention cannot be sustained. It was next submitted that the detenu was not furnished important material which must have influenced the detaining authority. Lastly, it was submitted that the grounds given are vague and even after a careful reading of the grounds, it is not clear as to whether the grounds referred to the incidents that took place in 1973 and 1974 only refer to activities subsequent to his release in December, 1974. As we are upholding the challenge of the learned counsel for the appellant on the validity of the order passed under section 9(1) of the COFEPOSAA we refrain from dealing with any of the other contentions. The order dated 2nd August, 1977 passed by B. B. Gujral, Addl. Secretary to the Government of India, the 4th respondent under section 9(1) of th COFEPOSAA is marked as Annexure E'. It runs as follows :- "Whereas Virendra Ramniklal Kapadia @ Kumar has been detained on 4th July, 1977 in pursuance of order No. SB. IV/PSA,2876.87(i) dated the 7th Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the place of landing to the place of storage." (underlying ours). To incidents are given: one relating to an incident on 6th August, 1974 and the other to an incident on 25 August, 1974. It is further stated that the Customs, officers contacted one Karltilal Amratlal Thakkar, who was working as accountant of Mohmed Kutchi. Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated that the detenu was under the employment of the aforesaid Mohmed Kutchi and was getting a salary of Rs. 5,000 p.m. for ar-ranging landing of contraband goods. Kantilal further disclosed that in the year 1973 the detenu had accompanied one Mohmed Bilal with foreign currency. Reference is also made to the statements recorded from one Mohmed Bilal Haji Usmangani on 8th Novemher, 1976 and 9th Novemher, 1976 before the Customs officers wherein it was stated that the detenu was one of the trusted men of the aforesaid Mohmed Kutchi and always remained with him and used to he1p Mohmed Kutchi in managing his smuggling activities. The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery of smuggled fabrics. The statement of one Ramchandra Schedeva Rajbher is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained was scanty and no new material indicating involvement of the detenu as alleged against him came to the light till october, 1976". The case for the State. appears to be that they regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in october, 1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974. This would indicate that for the fresh order of detention the basis was availability of fuller details regarding clients on which the earlier detention was ordered. It is seen that the High Court also proceeded on the basis that further information obtained in october, November 1976 related to the incidents in the years 1973 and 1974. The High Court observed, "It is no doubt true that some of the, activities attributed to the detenu were of August, 1974. However, the ground that the detenu was in regular employment of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention, and which fact has been disclosed from the statement of one Kantilal Amratlal Thakkar recorded on November 7, 1976, clearly indicates the connection of the detenu with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the detenu is likely to continue in his unlawful activities. If the detaining authority in this case had came to the conclusion taking into account the past activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities. In this case, the 4th respondent who passed an order under section 9(1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods. What he has stated is that the detenu "engages and is likely to engage in transporting smuggled goods'. There was no material before the 4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities. The detenu has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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