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1981 (6) TMI 131 - High Court Of Madras

1981 (6) TMI 131 - High Court Of Madras - TMI - W.P. No. 2856 of 1981 - Dated:- 2-6-1981 - V.Balasubrahmanyan And M.N.Moorthy, JJ. JUDGEMENT Balasubrahmanya V, ( 1. ) This is a petition for the issue of a writ of habeas corpus. The petitioner is an Austrian national aged about 51 years. He arrived at Madras by Air from Singapore on the 13th January, of this year. On 15th and 16th January, a number of smuggled foreign wrist watches and metal watch straps were recovered from unaccompanied baggage .....

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ps were dispatched from Singapore to India by Air. On the 18th January, at the instance of a Preventive Officer of the Customs, the Chief Metropolitan Magistrate reminded the petitioner to judicial custody in the Central Prison, Madras. On the 31st January while the petitioner was still under remand in the Central Prison, the State Government ordered his preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to by it .....

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ntral Jail, Madras, which is presently executing the detention order. The petitioner-s contention is that the detention by the State Government is illegal and he must be set at liberty. ( 2. ) The order of detention was passed under section 3(1) of the COFEPOSA Act. The Order states that the petitioner was being detained, because the State Government was satisfied that it was necessary to detain him with a view to preventing him from smuggling goods and from engaging himself in keeping or concea .....

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the Act pro. vides in express terms for preventive detention in individuals in such cases. Under the Act, an order of preventive detention can be passed by the State Government or other detaining authority both against Indian citizens and against foreigners, if other requirements of section are present. Section 8 (3) of the Act indicates that sounds must exist in order to enable the detention. For, under this provision, it is incumbent on the detaining authority to deliver a copy of the grounds .....

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to be detained to prevent him from being engaged in one or the other of the apprehended acts or conduct, then the satisfaction entered by the authority concerned cannot be reviewed by the superior Courts of the land on the score merely that upon the grounds stated, the decision ought not to have been arrieved at. It has, however, been held by the Supreme Court that although the Court cannot entertain any review of the merits of a detention order, yet it is permissible for the Court to took into .....

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correctness or validity of the State Government-s satisfaction as to the necessity for the detention of the petitioner. All that he urged was that this Court should examine the grounds disclosed by the State Government to the petitioner with a view to finding out whether all the facts which had a vital bearing on the question as to whether the petitioner is to be detained or not were in fact made available or were adverted to by State Government before it passed its order of detention. ( 4. ) Th .....

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ment was that the petitioner was under arrest by the Preventive Officers of the Customs Department on the evening of 15th January and thenceforward he was under their custody continually till 4 p. m. on the 18th January, when he was produced before the Chief Metropolitan Magistrate and remanded to judicial custody. According to learned Counsel, the arrest of petitioner and his subsequent custody with the Customs. Department without being produced before the Magistrate for more than 70 hours cons .....

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ware of the peculiar circumstances in which these statements were obtained from the petitioner. Learned Counsel further pointed out that subsequent to his remand by the Chief Metropolitan Magistrate under judicial custody on the evening of the 18th January, the petitioner had written a letter in his own hand addressed to the Collector of Customs retracting the previous three statements taken from him by the Customs Officials on the 16th and 17th January. This retracted statement was made on the .....

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by Mr. Rangavajjula concerning the retraction statement sent by the petitioner on the 28th January, it is stated by the learned Public Prosecutor that the petitioner-s retraction was addressed to the Collector of Customs, who himself did not come to know of it before 31st January. The delay, however, was not due to the postal department. In the counter-affidavit filed in this Court by the Joint Secretary, Public Department, Government of Tamil Nadu, it is stated that the said petition written on .....

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etraction statement, when it hadnot seen the light of day till the moment of issue of the detention order. But, whose fault was it that no one knew about this statement of retraction no one who mattered" The counteraffidavit of the Joint Secretary makes it clear that the petitioner-s letter had got stuck in the office of the Prison Superintendent for five precious, but wasted days. WE dare say that in the ordinary course of postage there was just a chance that the petitioner-s communication .....

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to the addressee, namely, the Collector of Customs. WE feel that there cannot be any lawful excuse or even pretext for the Superintendent of the Central Prison to have arrested this important communication, for a while on its one ward postal journey. Whatever might be the range of discretion of the Prison Superintendent as respects outward correspondence from the jail from convicts doing their term, so far as communications by under trials and detenus are concerned, he has no role excepting that .....

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als would have had a chance of placing this letter on file as part of the record on the basis of which the State Government might have exercised its personal satisfaction. The principal complaint voiced by the petitioner in his letter, dated 28th January, was that his earlier statements to the Customs Officials were forcibly taken and were not voluntary. In the counter-affidavit sworn to by the Joint Secretary, Public Department, Government of Tamil Nadu, it is asserted that even on a perusal of .....

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n was taken. It may be that even after perusing the retraction the detaining authority might still have felt convinced that the earlier confessions were true and the retraction was an after thought and of no consequence. The whole point of the petitioner-s complaint before us is that the retraction was not placed before the detaining authority sufficiently in time to enable the detaining authority to evaluate the weight of such retraction. It is in this context that we find no words too harsh to .....

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e law is that we have no jurisdiction to Judge the correctness or advisability of the decision of a detaining authority even on the materials which the detaining authority had before it, much less have we the power to declare the decision of that authority as unjustified on the basis of materials which were not before that authority, for some unfortunate reason or other, but which are now being produced before us in these proceedings. ( 8. ) There is, however, considerable force in the other arg .....

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of the petitioner-s custody is an important factor in the context of which the confessional statements deserved to be examined by anyone who was interested in arriving at a proper conclusion and if these facts had been placed before the State Government, whatever might be the ultimate value which the State Government might have attached to these facts it would certainly have taken these matters into consideration. The learned Public Prosecutor submitted that even on the footing that the petition .....

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373 Metal watch straps of a total value of ₹ 2,68,325 must stare anyone in the face, least of all, the detaining authority. The learned Public prosecutor also pointed out the recovery of a duplicate passport from the interstice of one of the baggages which accompanied the petitioner. The learned Public Prosecutor accordingly urged that even granting that the custody of the petitioner by the Customs Officials was illegal, the fact that the State Government was oblivious to it could not be .....

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s only at 11 a.m. on 18th January and within 24 hours of such arrest at 4 P.M. on the very same day he was produced before the Chief Metropolitan Magistrate who made an order for judicial custody. ( 10. ) We are satisfied that the petitioner was placed under arrest by one or other of the preventive Officers of the Customs Department, Madras, on the night of the 15th January. The imputation to the contrary found in the counter-affidavits filed in this case both by the Joint Secretary, public Depa .....

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ling his movements and moving according to his will. Under enlightened modern conditions it seldom becomes necessary for any police officer or other authority empowered to make arrests to actually seize or even touch a person-s body with a view to his restraint. Utterance of a guttural word or sound, a gesture of the index finger or hand, the away of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty. In the present case, .....

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nobodyelse. Two counter-affidavits in this regard have been filed by the Assistant Collector of Customs. The second affidavit was filed after we remarked that the earlier ore was devoid of particulars. Both the affidavits make it clear that the petitioner was "taken" that is, taken into custody, immediately after a haul was made of smuggled watches. That was at 6-15 p.m. on the 15th January, and the venue was the Air Cargo complex at the Meenambakkem Airport. The petitioner was thence .....

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ficer. The petitioner was taken to the Air Cargo Complex in the afternoon and two more items of unaccompanied baggage were examined in his presence, and the contents confiscated. The Customs Officials then took him back to the Custom House at 1-30 p.m At the Custom House, again another statement was taken from him at Custom House. He was in the Custom House during that right. On the next morning i.e., on 17th January, while he was still staying in the Custom House, his personal baggage which he .....

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hat the petitioner was arrested only at 11 a.m., on the 18th January. According to the records of the Customs Officials, the officer who made the arrest was one Vijayaraj. The records entered the arrest as having been made at 11 A.M., on the 18th. This Officer, Vijayaraj, has not filed any independent affidavit in this Court as to how and in what manner he made the arrest and what was the degree of freedom the petitioner had been enjoying in his company or in the company of his brother officer p .....

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s and how it came to pass that the petitioner spent three nights and three days in the Custom House premises. In the supplemental counter-affidavit filed by the Assistant Collector of Customs, it is asserted that the petitioner preferred to have his lodgings at the Custom House rather than in the hotel room which he had earlier booked for his stay in the city and which he vacated on the night of the 15th after the Customs Officials took charge of him. It is also stated that at 12 midnight on 1 5 .....

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llow the story that the petitioner cleared his personal belongings and vacated a starred hotel of his own accord and at dead of night actually-wangled from the Customs authorities a place for rest and sleep in the bosom of the Custom House. It is preposterous to suggest that the petitioner found his situation as a non-paying guest of the Custom House so much to his liking that he did not stir out of the place for nearly three days and nights on end. Irony apart, we have no doubt whatever that th .....

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cles and goods which they discovered from the accompanied baggage of the petitioner were smuggled goods which were liable for confiscation since they contravened the Baggage Rules and other provisions of the Customs Act and in fact were confiscated. The watches as well as the rest of the con tents of this baggages were confiscated by the Officials or the evening of the 15th January. This was the first have they made. They, then and there, knew or must have reason to suspect that the petitioner m .....

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unaccompanied baggage on the 15th January, but also after the subsequent haul of the two baggages on the 15th and the rummaging of his personal baggage on the 17th till the morning of the 18th, the Customs Officials who had been witness to all these happenings had allowed the petitioner to have free and unfettered movement is to ask us to believe the impossible. IT would either mean that they have been grossly negligent of their duties and only by a providential chance that the petitioner was st .....

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on the 18th when he was produced before the Chief Metropolitan Magistrate. There can be no doubt whatever that this period of custody was illegal. Under section 104 of the Customs Act, a proper officer of the Customs Department if he is so empowered by the generator special order of the Customs Collector can arrest a man if he has reason to believe that that person is guilty of an offence punishable under section 135 of the Act. But, the provision insists that the officer making the arrest shal .....

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is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the, authority of a magistrate.- ( 12. ) In a way, the nebulous character of the petitioner-s detention under the Custom House custody is implicitly admit-ted in the affidavit of the A .....

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y of traveller-s cheques, incriminating documents and other items in eluding tool and plywood planks with metal sides. Thereafter he was taken to Customs House for investigation. After completing all investigations the petitioner was actually arrested on 18th January, 1981 and produced before the Chief Metropolitan Magistrate, Madras-. The stand taken by the Joint Secretary as well as the Assis-tant Collector of Customs is that the petitioner was put under arrest only after all investigations we .....

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i-cials did not follow this procedure. On the contrary, they were a procedural law on to themselves. Having kept the petitioner under their grip the customs offi-cials are now asking this Court to believe that the arrest was made only when they said they made the arrest. The question for our consideration in the present proceedings however, is not the arrest or the detention of the petitioner by the Customs Officials or even the Validity of the judicial custody under orders of the Magistrate, bu .....

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tion of his earlier confession, the fact that the confessional statements of the 16th and 17th January were made by the petitioner while he was under illegal custody could have been a matter of high relevance and significance in the appraisal of the facts by the State Government for the purpose of arriving at a decision as to whether the petitioner is to be detained or not. Learned Counsel was quite aware that confession before a Customs Officials was not to be equated to that before a police of .....

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to the petitioners having been in the custody of the Customs Officials and his spending the nights in the Customs House in detention were material facts the withholding of which either by accident or by design rob the detaining authority of part of impor-tant and Vital data essential for coming to a right conclusion one way or the other. ( 13. ) These arguments were met by the learned Public Prosecutor by saying that in the events that happened on the 15th to 18th January, there was scope for ar .....

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secutor, the Court-s jurisdiction in a matter of preventive detention under the COFEPOSA Act and other allied enactments is to see whether the basic facts which had a relevance to" the case were before the detaining authority and not whether those who provided the facts to the detaining authority desisted from providing the said authority also with relevant inference from those facts. According to the learned Public Prosecutor it is no part of those who purvey information to the detaining a .....

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aise a point of some subtlety. On the one hand this Court has undoubtedly a jurisdiction to probe the record and find out if an facts which are worth attention were placed before the detaining authority On the other it is quite clear that this Court cannot go into the correctness or otherwise of the process of judging or evaluating or interpreting the basic facts. In given cases, it may be quite a matter of nicety to find out if any given factual consideration amounts to a primary fact or whethe .....

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e by him while he was under constraint of the Customs Officials. It may be a matter for a trained legal mind to decide whether on the given facts there was or there was no an arrest of a person, But, in the present case there is nothing whatever indicate that the State Government was appraised of the fact that all the while the petitioner was making statements and was being moved from the Airport to the hotel and from there to the Customs House, he was solely under the charge of the Customs Offi .....

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. But apart from these indications, the grounds of detention drawn up by the detaining authority do not show that it was aware that the petitioner was produced before the Magistrate for judicial custody only on the 18th January even though right from 15th night he never could call his time or his liberty his own. Having regard to the purpose and scheme of the COFEPOSA Act and the im-portant function and good results its provisions are expected to bring about especially in the matter of preventio .....

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ority to the petitioner runs into as many as ten closely typed pages. As we earlier pointed out, the Customs Officials had the petitioner brought under their heel as early as on the 18th January, it not earlier when they had him detained under judicial custody. From the 18th January, till the 31st January, the State Government had more than ample time to study the facts, sift them and come to a conclusion of their own. Obviously, the better part, if not the whole part, of the materials bearing o .....

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n the counter-affidavit, filed by the Joint Secretary. -The fact that the petitioner was then in judicial custody upto 31st January, 1981 was taken note by all members of the Screening Committee when his name was proposed for a detention urder the COFEPOSA Act- At the hearing we asked the learned Public Prosecutor as to what this body called -Screening Committee- was. We heard him say that it was a body consisting of several officers of the Customs Department.. The learned Public Prosecutor, how .....

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ee, although it has no existence or locus standi in the eye of the law, still had a membership all of whom, in the present case, would seem to have played an important part in the formation of the opinion by the detaining authority when the question arose as to whether the petitioner should be put under preventive detention or not. A Screening Com-mittee, if it is to be true to its name, is not merely a body which feeds but one which sifts them, appraises them, evaluates them and gives its own o .....

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nd the evaluating end of facts, and by all accounts were given a pre-eminent position in the matter of (sic) attesting the effects of facts in the context of decision making on the question of detention or otherwise. ( 15. ) We have searched in vain the COFEPOSA Act for functioning of an opinion shaping body, such as the Screening Committee that has been referred to in the counter-affidavit, as having interposed at least between the facts on the one hand and the final decision-making on the othe .....

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sense in which, and it is a vital sense too the decision of the State Government as a detaining authority under section 3(1) of the COFEPOSA Act might be said to be vitiated for the reason that it had surrendered its prerogative of decision-making under that section to Sundry officials who had no statutory locus standi and had preferred to sign their decisions as its own. This is because under section 3(1) of the Act, the detai-ning authority must be either the Central Government or the State Go .....

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aken note of by all members of the Screening Committee when the petitioners name was proposed for detention is to be told that persons who had no power to make Orders under section 3(1) of the Act had as terrible hand at making it or had influence in the making of it. In a sense it might be said that what passes as the State Government-s Order of detention under section 3(1) of the Act is really the order of a number of persons calling themselves a Screening Body who had no statutory existence, .....

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e could be found an official or officials of the Customs Department. We were not over curious to know the names of the officers of the Customs Department, who played their part as members of the Screening Committee. The ASsistant Collector of Customs who has sworn to affidavits in this care bears the designation of the ASsistant Secretary, COFEPOSA. He is also in some of the documents described as -ASsistent Secretary. Rummaging and Intelligence-. This official had taken the stand in his counter .....

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ould have been pressed home before the detaining authority as the proper view of the facts relating to the detention in custody of the petitioner from the 15th to the 18th January. In such a case, the so-called confessional statements taken from the petitioner would as easily have been put forward as accepted as having been made voluntarily and not while the petitioner was under formal custody or duress. Set against the presence of the Screening Body and the presence of a member or members of th .....

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l statements it appeared quite clear that those statements were made voluntarily. It might well be that where a statement rendered by an individual contains a wealth of details an inference may be drawn, in the absence of any indications to the contrary that such a statement issued forth from him in a free and easy manner with cut any extraneous influence or compulsion. But this may not always be the case. In any event when there is evidence that at the time when statements were made or taken fr .....

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ms Officials. If these facts had been before the detaining authority and if they bad properly taken these fact into account, how those factors would have affected their ultimate decision-making is more than what we can say. But, all that we want to emphasize is that the selective omission or non-disclosure of relevant facts relating to the detention of the petitioner in Customs House is an nondisclo- sure of a material fact and a decision rendered in the absence of such material facts is thereby .....

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of a detenu on the ground that three vital facts which had a material bearing in the case and would have influenced the mind of the detaining authority one way or the other were neither placed before it nor considered by it before it passed the detention order and hence the detention order was liable to be set aside. The Supreme Court while deciding, the point, took the opportunity of restating the law on the subject by observing that the subjective satisfaction requisite on the part of the deta .....

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ll related to the events which happened prior to his detention and while he was being interrogated by the Customs Officials on suspicion of his being implicated in smuggling activities. Those facts were: (1) during his interrogation the Customs Authorities did not permit consultation with an advocate (2) the detenu was not produced before the Magistrate by the Customs Authorities despite their assurance to the Advocate that he would be so produced and (3) that the earlier confessional statements .....

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material and vital facts vitiating the satisfaction thereby rendering the detention order invalid and illegal. Mr. Rangavajjulu for the petitioner submitted that apart from the principle laid down by the Supreme Court in this decision, the facts found in the judgment rendered their relevance to the present case all the greater. Learned Counsel pointed out that one of the Contentions put forward On behalf of the detenu in that case was that the detenu was taken under the custody of the Customs Of .....

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that wherever vital and material facts are not brought before or considered by the detaining authority, the non-disclosure or nonconsideration would vitiate the order of detention. We however, do not accept Mr. Rangavajjulu-s argument that this decision of the Supreme Court is also authority for the point that wherever a detention order under the COFEPOSA Act is preceded by the custody of the detenu by the Customs Officials and that custody is found to be illegal in the sense that the person ar .....

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of the detenue by the Customs Official", much less any omission on the part of the detaining authority to take note of the fact that such custody was illegal nor are we satisfied that the Supreme Court had particularly adverted to this aspect of the case. But, this however does not prevent us from deciding for ourselves on the facts of this particular case whether the non-disclosure of the facts relating to the custody of the petitioner by the Customs Officials does vitiate the order of det .....

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onclusion one way or the other on the question of preventive detention of the petitioner. We are further satisfied that there was no possibility of even a fair chance of all ma terial facts being fully and truly placed before the detaining authority, without any gloss, varnish or screening of any kind, considering the interposition of a Screening Committee consisting of the very Customs Officials whose stand has always been that the petitioner has never been under illegal custody. ( 19. ) There .....

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ls on record, it is not difficult to say that they might have gone the whole hog with those proceedings and sought to obtain a conviction for an offence under section 135 of the Act on the basis of the materials they already had in their possession. The order of preventive detention however, is quite a different cup of tea altogether. It is not punitive in nature nor intended to be a prelude to prosecution. It is quite clear from the preamble as well as the long title to the Act as well as the c .....

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evidence or proof in all cases as to how any given individual is going to act or refrain from acting hereafter. Future behaviour might upto a point be inferred from past patterns of behaviour and past (acts or omissions may therefore, be relevant facts from which some kind of an insight can be got at in regard to a man-s propensities or future tendencies. It is however, important to realise that past acts of a particular kind may not be an indicia of future tendencies of quite a different kind. .....

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rt from his personal baggage. From these exiting materials representing proof of facts and events which had already happened, it would have been quite open to the State Government, as the detaining authority, to have arrived at a subjective satisfaction that if the petitioner were left at large he would cortinue to indulge in smuggling activities and in keeping and concealing whatever he had managed to smuggle. The preamble to the order of "detention of clearly stated that the petitioner Wa .....

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State Government was convinced that if the petitioner was not detained he would leave the country and thereby escape punishment even under the normal laws of the land - vide paragraph 2 of the grounds of detention. IN other words, it seems to be the anxiety and apprehension of the State Government as detaining authority that the petitioner would abscond or escape from custody or jump bail and leave the country somehow in order to escape prosecution and punishment for his earlier contravention o .....

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irst place the belief of the detaining authority that a person who is apprehended in connection with an alleged offence at smuggling is likely to escape the arm of the law and stultify prosecution or conviction and sentence for that offence cannot amount to a belief that the individual would repeat his smuggling act. It is admitted by the Joint Secretary, Public Department Government of Tamil Nadu in his counteraffidavit that the pettioner had not visited India earlier than at present. In this c .....

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uences of the law for a past act of smuggling. This is yet another vice which we have noticed in the present order of detention although this had not been adverted to or stressed by learned Counsel for the petitioner. The distinction between preventing future transgressions of the law on the one hand and preventing a culprit from escaping the consequences of legal process for a past transgression of the law, on the other, is a distinction which must be clear even to the novitiate in criminal law .....

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ready undergoing. This line of thinking finds support from a decision of the Supreme Court in Kanchanlal v. State of Gujarat. ( 21. ) Before parting with this case, we would like to observe that the COFEPOSA Act does not discriminate between a citizen of India and a foreigner. Indeed, section 3(1) expressly mentions, in parenthesis, that the Act applies to a foreigner as well. A reminder of this kind is not out of place in the section, considering that the very object of the Act as to prevent th .....

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OSA Act as well as the Customs Act have laid down equal punishment and equal preventive action irrespective of whether the person involved is a citizen of India or an alien. By the same token we believe that a foreigner is entitled to the same protection of the laws as a local citizen, against unjust detention. Under private international law, which was being observed generally before the Universal Declaration of Human Rights in 1948, an alien was thought to be entitled to treatment according to .....

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