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Bittu Choith Harchandani Versus State of Maharashtra And Others

2015 (7) TMI 749 - BOMBAY HIGH COURT

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 offence) the intent and object behind the en .....

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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 provide for punishment. An act may not be decla .....

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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 without trial. - there is a bond executed and fur .....

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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. Thus, there was an application of mind to german .....

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tion 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 representation. Apart therefrom, the complaint i .....

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atisfaction 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 find that the detention order suffers from any .....

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suance 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 respondent informed others and a discreet wat .....

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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 on 23.11.2014. The Sponsoring Authority issu .....

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.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. The precise submission of the learned Counsel .....

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tion 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 apprehension and particularly within the meani .....

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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 augmenting foreign exchange. Thus, the submissio .....

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, 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 compilation of judgments was submitted by Mr.Agar .....

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ashtra & 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. Union of India & Ors. ((1990) 1 SCC 606 .....

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ion 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 detenu has been booked. It is to highlight as .....

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nd. 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 being in accordance with law, deserves to be .....

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exed 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 strolley bag of gold star band as check-in-baggage a .....

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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 admitted carriage, possession, knowledge, recovery .....

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ce 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 of clause (i) of Subsection (1) of Section 3 .....

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vernment, 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 India & Ors., (AIR 2012 SC 2550) ", th .....

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t 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 detention results in negation of personal liberty of .....

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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 to enact a law of preventive detention for rea .....

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or 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 services essential to the community besides En .....

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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 nurture and encourage the nascent industries. T .....

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y 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 referred to COFEPOSA, SAFEMA and FERA, the amen .....

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ound 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 basic structure. This simplistic argument overlo .....

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onstitution. 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." Then, in paragraph 21, the Court obser .....

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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 abuses. There may be crudities and inequitie .....

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ticipate 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 generality of its provisions and not by its cruditie .....

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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 is not relatable to any of the Entries 1 to 9 .....

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t 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 International Financial Institutions who in turn seek .....

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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 decision by a Constitution Bench of seven Judge .....

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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 competence to enact COFEPOSA and SAFEMA. 50. .....

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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 Prajivandas14 and, therefore, it is not open .....

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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 provisions is not regarded as a criminal offenc .....

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sy 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 insignificance. We must remember : the person .....

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ithstanding 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 do not think that the impugned provision is re .....

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o 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 that the Constitution and preventive detention .....

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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 Supreme Court found that there is certain degre .....

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ch 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 out of seven possible grounds which can appl .....

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sion 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 between the safety of India and which may be ass .....

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ry" (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 without trial, the constitutional mandate must be .....

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n 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 aspect. If the passport was surrendered and w .....

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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 he would not leave India without prior permiss .....

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er 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) of the COFEPOSA. 20. In the present case, read .....

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tive 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 detenu and in order to prevent him from indulging .....

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cation 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 requires him to make effective and proper represen .....

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