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2015 (7) TMI 749 - BOMBAY HIGH COURT

2015 (7) TMI 749 - BOMBAY HIGH COURT - TMI - Validity of detention order - Order under COFEPOSA - Violative of constitution of India - Held that:- The constitutionality of COFEPOSA has been already upheld by a nine Judge Bench of this Court. Its constitutionality is again sought to be assailed by the petitioners in the present matter on the ground that with the change of legal regime by repeal of FERA and enactment of FEMA (the provisions contained in FEMA did not regard its violation a criminal .....

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Constitution has adopted preventive detention to prevent the greater evil of elements imperiling the security, the safety of State and the welfare of the Nation.

On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not pr .....

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order of detention. The Authority is obliged while passing order of detention and taking away liberty of the citizen of this country to exercise due care and caution and ensure that the person detained is so detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of detention should show that such care and caution was exercised and reflects sense of responsibility while depriving citizen of his liberty with .....

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ould have prevented departure from India, but that by itself does not mean that the detaining authority in any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thu .....

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not enough to nullify the subjective satisfaction and which is recorded in the present case.

This is not a case where the material or the grounds were not supplied. Rather this is a case where the detenu desired to have better and further particulars about the documents and their contents. The documents speak for themselves. They were supplied and some of them were clearly referred in the representation. The particulars thereof and as sought were not necessary to make a meaningful rep .....

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tion or torn out of context. The subjective satisfaction is based on the detaining authority's opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future. - detenu's rights guaranteed by Article 22 of the Constitution of India are in no way infringed nor is the mandate of the said Article in any way violated. There is ample opportunity given to him and to make an effective and meaningful representation. Even on that count, we do not fi .....

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en lodged at Nasik Road Central Prison in pursuance of an detention order dated 16.4.2015. That order passed by the second respondent is under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (for short 'COFEPOSA'). 3. The petitioner has stated that the detenu was scheduled to depart for Singapore by Jet Airways Flight No.9W 012 and hence arrived at the Mumbai International Air Port. Because of his alleged suspicious movement, the officer of the third .....

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ore the Competent Magistrate's Court and enlarged on bail. While being enlarged, a bail bond was directed to be furnished. It is the case of the detenu that the bail bond incorporated an undertaking by the detenu not to leave the country without prior written permission of the concerned officer or the Court as the case may be. 4. It is then alleged that there was a self incriminating statement recorded and the detenu's signature was obtained thereon forcibly. This statement was retracted .....

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ccording to the detenu, was submitted on 14.5.2015 to the Jail Superintendent, Nashik Road Central Prison, Nashik, for forwarding the same to Advisory Board and the Detaining Authority, "Annexure E" is the copy of the same. 6. It is after setting out the above facts and the circumstances that the detention order is challenged on several grounds. Mr.S.Agarwal, learned Counsel appearing on behalf of the petitioner contended before us that the impugned detention order is vitiated in law. .....

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ents and it is common ground that an adjudication order under the relevant statute was passed and that was challenged in an appeal. This is a solitary instance alleged, based on which the detaining authority has recorded his subjective satisfaction. However, the bond and which was executed and to which our attention has been invited incorporating the condition of the detenu not being able to leave India without prior permission of the competent Officer or the Competent Court, takes care of the a .....

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er, in the grounds of the detention order at paragraph 12, a subjective satisfaction is recorded by referring to the prior cases and the detenu booked therein. The detenu is termed as a repeated offender. Then, it is stated that in all probability, he may indulge in such prejudicial activities in future and, therefore, he is required to be detained under COFEPOSA and preventive detention is considered necessary to subserve the larger public interest of preventing smuggling and conserving and aug .....

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pecifically pointed out in the representation, but same has been rejected on 28.5.2015. 7. A faint attempt is also made to suggest that the detenu could not exercise his right to make representation effectively and meaningfully because he was not supplied the particulars as sought by him. The documents were also not supplied and that is why the representation could not be said to be complete. For all these reasons, it is submitted that the detention order must be quashed and set aside. 8. A comp .....

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(II) Ekta Satish Choudhary Vs. State of Maharashtra & Ors., (Judgment dated 17.1.2005 in Writ Petition No.2518 of 2014) (III) State of Bombay Vs. Atmaram Shridhar Vidya, (AIR 1951 SC 157); (IV) Bhawarlal Ganeshmalji Vs. State of Tamil Nadu & Anr., ((1979)1 SCC 465); (V) Nafisa Sayed Ali Vs. State of Maharashtra & Ors., (2013(4) Bom.C.R.(Cri) 284); (VI) Prithvi Sovern Kuntal Vs. State of Maharashtra & Ors., (2002 (Supp.1) Bom.C.R.(Cri.) 692); (VII) Vijay Kumar Dharna alias Koka Vs .....

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ng would reveal that the subjective satisfaction is based on the gravity of the offence and the well organized manner in which the detenu engaged in prejudicial activities. That with a view to prevent him from indulging in smuggling activities in future that he is required to be detained. The subjective satisfaction is, thus, recorded in paragraph 15 of the detention order. There is absolutely no variance inasmuch as in prior paragraphs a mere reference is made to the earlier cases in which the .....

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ere is conscious and proper application of mind. There is absolutely no substance in the contention that there is variance between the grounds of detention and the subjective satisfaction recorded in the detention order. It is submitted that there is absolutely no denial of right to make representation as all the necessary materials were supplied. Thus, the attempt to read one paragraph in isolation and torn out of context should not result in detention order being set aside. The detention order .....

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. The detention order, a copy of which is annexed at page 20 of the paper book 'Annexure A', states that the detaining authority is satisfied that the detenu is required to be detained with a view to prevent him in future in smuggling goods. In the reasons recorded and which commence from page 21, there is a reference made to the suspicious movement of the detenu and who holds an Indian passport. He was to depart to Singapore by Jet Airways Flight. He was carrying on red coloured strolle .....

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ign currency was seized under the panchanama and the detenu's statement under Section 108 of the Customs Act,1962 was recorded. The detenu admitted of being booked in similar cases of foreign currency smuggling during the years 2007 and 2009. Thereafter, a reference is made to the admissions in the statement and the Authority in paragraph 6 holds that the detenu attempted to smuggle the foreign currency not constituting bonafide baggage out of India in a clandestine manner. The detenu admitt .....

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re, have been referred with a view to reinforce the conclusion that the preventive detention order is required to be passed to prevent smuggling activities being indulged in by the detenu and in future. 13. We agree on perusal of the entire material with Mr.Yagnik that this is not a case of any variance between the order of detention and the subjective satisfaction recorded therein, so also the grounds or reasons in support thereof. The subjective satisfaction is clearly based on the ingredients .....

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d 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 …. …. ….. …." 14. In a recent judgment delivered by the Hon'ble Supreme Court of India in the case "Dropti Devi & Anr. Vs. Union of In .....

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ion 3 of COFEPOSA is construed accordingly, it would be unconstitutional. Negativing this challenge and holding that the same is constitutional, valid and legal, the Hon'ble Supreme Court traced the entire history of the legislation and object and purpose sought to be achieved by enacting it. This is what the Hon'ble Supreme Court held: "47. The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. Preventive detentio .....

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itimate goal, this Court has upheld the power of the Parliament and State Legislatures to enact laws of preventive detention. The Court has time and again given the expression personal liberty its full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of state security. "48. The power of Parliament t .....

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Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of the State as well as the maintenance of supplies and services essential to the community besides Entry 9 of List I. In the words of this Court (para 23 pg. 73 of the Report): "…COFEPOSA is clearly relatable to Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of the State as well as the maintenance of supplies and s .....

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ian economy was a sheltered one. At the time of Independence, India did not have an industrial base worth the name. A firm industrial base had to be laid. Heavy industry was the crying need. All this required foreign exchange. The sterling balances built up during World War II were fast dissipating. Foreign exchange had to be conserved, which meant prohibition of import of several unessential items and close regulation of other imports. It was also found necessary to raise protective walls to nu .....

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port (Control) Order, 1955 to place the policy regarding imports on a surer footing. In the year 1962, a new Customs Act replaced the antiquated Sea Customs Act, 1878. The menace of smuggling and foreign exchange violations, however, continued to rise unabated. Parliament then came forward with the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). It provided for preventive detention of these antisocial elements". The Court in paragraphs 3 to 7 re .....

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was levelled in the writ petitions on the ground that the said Amendments - effected after the decision in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225) : (AIR 1973 SC 1461)- infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the bas .....

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19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31-B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14. .....

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ct propositions and do not relate to abstract units and are not to be measured by abstract symmetry ; that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience . Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible .....

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it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the general .....

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not competent to enact COFEPOSA and SAFEMA in paragraph 23 (pgs. 7374 of the Report) as follows: "23. It is argued for the petitioners that COFEPOSA is not relatable to Entry 9 of List I of the Seventh Schedule to the Constitution inasmuch as the preventive detention provided therefor is not for reasons connected with defence, foreign affairs or security of India. Even Entry 3 of List III, it is submitted, does not warrant the said enactment. So far as SAFEMA is concerned, it is argued, it .....

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India". Evidently, they are two distinct and different expressions. "Security of a State" is a much wider expression. A State with a weak and vulnerable economy cannot guard its security well. It will be an easy prey to economic colonisers. We know of countries where the economic policies are not dictated by the interest of that State but by the interest of multinationals and/or other powerful countries. A country with a weak economy is very often obliged to borrow from Internati .....

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ty of the State. Indeed in the very preamble to the Act, Parliament states that the violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy thereby casting serious adverse effect on the security of the State. Be that as it may, it is not necessary to pursue this line of reasoning since we are in total agreement with the approach evolved in Union of India v. H.S. Dhillon, (1971) 2 SCC 779 : (AIR 1972 SC 1061) - a de .....

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is competent to enact that statute whether by virtue of the entries in List I and List III or by virtue of Article 248 read with Entry 97 of List I. In this case, it is not even suggested that either of the two enactments in question are relatable to any of the entries in List II. If so, we need not go further and enquire to which entry or entries do these Acts relate. It should be held that Parliament did have the competence to enact them." The Court concluded that Parliament did have the .....

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exist and continuation of impugned provision in COFEPOSA was violative of Article 21 read with Articles 14 and 19 of the Constitution. 52. Para 151(v) in I.R. Coelho (AIR 2007 SC 861 : 2007 AIR SCW 611) leaves no manner of doubt that where the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by the judgment. The constitutional validity of COFEPOSA has already been upheld by this Court in Amratlal .....

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t be made the basis for preventive detention and any law declaring it to be prejudicial to the interest of the State so as to invoke the power of preventive detention is violative of Articles 14, 19 and 21 of the Constitution and must be struckdown. 58. The importance of foreign exchange in the development of a country needs no emphasis. FEMA regulates the foreign exchange. The conservation and augmentation of foreign exchange continues to be its important theme. Although contravention of its pr .....

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phical invasion may be difficult but it is easy to imperil the security of a State by disturbing its economy. The smugglers and foreign exchange manipulators by flouting the regulations and restrictions imposed by FEMA - by their misdeeds and misdemeanours - directly affect the national economy and thereby endanger the security of the country. In this situation, the distinction between acts where punishments are provided and the acts where arrest and prosecution are not contemplated pales into i .....

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gn exchange violations has to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperiling the security, the safety of State and the welfare of the Nation. 60. On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we d .....

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to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State. Strictly speaking, preventive detention is not regulation (many people call it that way), it is something much more serious as it takes away the liberty of a person but it is accepted as a necessary evil to prevent danger to the community. The law of preventative detention arms the State with precautionary action and must be seen as such. Of course, the safeguards t .....

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challenge to the constitutional validity of impugned part of Section 3(1) of COFEPOSA." 15. It is no doubt true that the detention order can be set aside, if it is vitiated by non application of mind. The variance between subjective satisfaction based on which the order of detention is passed and the grounds in support thereof, is but one facet of the submission of the order being vitiated by non application of mind. 16. In the case of "Jagannath Misra" (supra) the Hon'ble Su .....

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nd the order of detention should show that such care and caution was exercised and reflects sense of responsibility while depriving citizen of his liberty without trial. In the matter before the Hon'ble Supreme court, it was found that the order of detention refers to six out of eight possible grounds on which a person can be detained under Section 3(2)(15) of the Defence of India Act. All these eight grounds refers to foreigners i.e. of being of hostile origin. The order really mentions six .....

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unds before passing the order, then, a conclusion can be reached that there is non application of mind and to the real necessity of detention. Thus, there is no warrant for any possibility. Further, in that case the Supreme Court concluded that the Authority was unaware of even clear language of the provision, the order was vitiated by non application of mind. A specific contention as mentioned in paragraph 4 of the judgment of the Supreme Court has been, therefore, accepted. The distinction bet .....

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ment in the case of "Ekta Satish Choudhary" (supra) is misplaced. There as well the Division Bench found that, there was complete variance inasmuch as the facts related to acts of smuggling and not the act of abetment of smuggling. This fundamental and basic distinction having been not adhered to and the order not reflecting application of mind to same that it was quashed and set aside by the Division Bench. 18. That in the matters of preventive detention and in detaining a person with .....

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d later, in the case of "Abubakar Suleman Vs. State of Maharashtra & Ors." (2013 All M.R.(Cri.) 29) (Criminal Writ Petition No.2614 of 2012 decided on 25.10.2012.) The Division Bench applied the ratio of the Supreme Court Judgment in the case of "Gimik Piotr Vs. State of Tamil Nadu & Ors., ((2010)1 SCC 609). In the "Gimik Piotr" case, it was apparent that the passport was not returned to the detenu but was seized by the authority. This was a crucial and relevant .....

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set out. The detention order in those matters reflected total non application of mind because the detaining Authority demonstrated total ignorance of the seizure and surrender of passport. That is how the ruling in "Gimik Piotr" case was followed and applied by the Division Bench of this Court. 19. In the present case the argument of the learned counsel appearing on behalf of the detenu is that there is a bond executed and furnished and which records an undertaking of the detenu that h .....

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n any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thus, there was an application of mind to germane and relevant factors necessary to invoke Section 3(1)(i) o .....

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be. This is not enough to nullify the subjective satisfaction and which is recorded in the present case. 21. We cannot in our limited jurisdiction probe further as to whether the material on which the satisfaction is recorded in this case was enough and adequate to make an order of detention. That is a province in which we cannot enter in writ jurisdiction. Suffice it to note that the subjective satisfaction is recorded with reference to the past activities of smuggling carried out by the deten .....

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support thereof. The order reflects non application of mind to the surrender and seizure of the passport and that being in the custody of the passport authority or the competent authority investigating the crime. Once on facts the situation is different, then, none of these decisions can be of any assistance to the detenu. 23. We also do not find any substance in the other contention that the right of the detenu to make representation being hampered. He was provided with all materials that requi .....

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