TMI Blog1992 (10) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... uard vessel O.G. 'VIGRAH' in the sea off Karwar for a suspect Arab Dhow carrying foreign silver to smuggle into India. During surveillance around 23.00 hours on 25.9.90, the officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour. On suspicion the officers signalled with loud speakers and search lights to stop the said Dhow, but instead of stopping, the Dhow started speeding away in the opposite direction. Seeing this, the officers fired in the air and warned the crew on the Arab Dhow to bring it alongside the ship. Thereafter the Dhow stopped and came alongside the coast guard ship and the officers from the coast' guard ship boarded the Dhow. On examination, the officers found 150 packages containing contraband silver ingots on board. There were nine persons on board. The silver ingots were seized and those nine persons were escorted by the coast guard ship to Mole Station, Ballard Pier, Bombay. The silver packages were unloaded in the presence of 2 panchas and the 9 persons were arrested. The total quantity of the contrabands was weighing 4738,901 kgs. and valued at ₹ 3,31,72,507/-. Besides the contrabands on a rummage the officers rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order. The detenu was unsuccessful in getting the bail order. However, the detaining authority observing that persons who were charged with smuggling are generally granted bail, decided to pass the order of detention in spite of the fact that the detenu, to his knowledge, was in judicial custody. The detention order was served on the detenu on 26.10.1990 while he was in judicial custody. On 19.11.1990 a declaration under Section 9(1) of the Act was made and the same was served on the detenu on 8.12.90. 5. The wife of the detenu, appellant herein challenged the validity and legality of the order of detention raising several contentions, but the High Court dismissed the Writ Petition by the impugned order. Hence the present appeal. 6. Though several contentions arc raised in the grounds of appeal, Mr. R.K. Jain, the learned senior counsel appearing on behalf of the appellant pressed only the followings by way of challenging the detention order: (1) Though the declaration under Section 9(1) of the Act has been made on the ground that the detenu is likely to smuggle goods into and through the Indian coastal waters, contiguous to the State of Karnataka which is highly vuln ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in judicial custody. That is to say that Section 3(3) of the Act which requires the order of detention 10 be communicated to the detenu ordinarily not later than 5 days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention, has been strictly complied with. In fact, the validity of the initial order of detention is not under serious challenge. As in Section 3(3) no statutory period is fixed for the communication of the declaration made under Section 9(1) to the detenu except that the period of 5 weeks as a maximum limit for making a declaration. 8. Save as otherwise provided in Section 9 of Act the appropriate Government which has passed the order of detention under Section 3 of the Act should make a reference in respect of the detention order to the Advisory Board within 5 weeks from the date of detention of the detenu as contemplated under Section 8(b) of the Act. Section 8(c) requires the Advisory Board to which the reference has been made, after complying with the requirements of that provision should prepare its report specifying its opinion as to whether or not there is sufficient cause for the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 19.11.90 and also by a delay of 8 days beyond the period of 5 weeks has caused much prejudice to the detenu in showing cause against the legality of the order before the Advisory Board. This submission, in our view, does not merit any consideration because the Advisory Board has its meeting only on 19.12.1990, that is 11 days after the communication of the declaration and the detenu himself was personally heard. 12. Whilst the first respondent has passed the detention order with a view to preventing the detenu from smuggling goods within the State of Maharashtra the declaration has been made on a different ground that the detenu is likely to smuggle goods into and through the Indian coastal waters, contiguous to the State of Karnataka. Therefore, there was no territorial nexus providing jurisdiction to the detaining authority to pass the impugned order and that the second respondent has passed the declaration with application of mind. 13. It is seen from the affidavit filed by the respondent before the High Court as well as from paragraph 22 of the impugned judgment of the High Court that the declaration which was made by the Central Government was received by the sponsorin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of Customs Waters has given sufficient and detailed reasons in paragraphs 15-21 of its judgment. In paragraph 3 of the declaration the reason for making the declaration is given as follows: Now, therefore, I, the undersigned, hereby declare that I am satisfied that the aforesaid Shri Sayed Arif Sayed Hanif is likely to smuggle goods into and through the Indian coastal waters contiguous to the State of Karnataka which is highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 18. As pointed out by the High Court Section 2(d) defines Indian Customs Waters as having the same meaning as in Clause 28 of Section 2 of the Customs Act, 1962 (as substituted for certain words by Act 25 of 1978) which defines Indian Customs Waters as waters extending into sea up to the limit of contiguous zone of India under Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (in short 'Territorial Waters Act of 1976') and includes any bay, gulf, harbour, creek or tidal river. Section 3 of the Territorial Waters Act sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. In sub-para (vii) of paragraph 7 of the counter the respondents have attempted to explain this expression by stating that the word 'Coastal' in place of 'Customs' is a typographical error which does not vitiate the order on any ground inclusive of one that there was no application of mind. 21. After carefully analysing the submission with reference to the explanation given by the respondents, we are in full agreement with the High Court that this typographical mistake has in no way prejudiced the detenu in making his representation. It is not the case of the detenu that he was in any way deprived of making his effective representation before the Advisory Board nor he has made any complaint before the Advisory Board. 22. In the present case, the apprehended activities of smuggling by the detenu have a territorial nexus with the State of Maharashtra. Indisputably the detenu is a resident of Bombay. The grounds of detention refer to a conspiracy hatched by the detenu in Bombay to smuggle silver ingots from Dubai to India. The detenu had engaged some of the crew members of the vessel which brought the contraband silver ingots into India, in Bombay. Their a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son that the detenu was likely to be released from custody in the near future. 26. The reason given by the detaining authority in the grounds of detention reads as follows: You are likely to continue to indulge in smuggling activities in future unless you are detained. You are still in judicial custody as bail has to been granted to you in spite of your applications. However the persons who are charged with smuggling are generally granted bail. I am therefore satisfied that there is a compelling necessity to issue your Detention Order under the COFEPOSA Act to prevent you from indulging in such prejudicial activities in future, though you are at present in judicial custody. 27. As to what are the compelling reasons in the context of making the order of detention this Court in D.S. Chelawat v. Union of India after making reference to a number of decisions of this Court on this point has made the following observation: The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely unjustifiable and unwarranted and as such it has to be strongly condemned. But the question whether there was any compelling reason to draw an inference that the detenu was likely to be released from the custody in the near future has to be examined. 30. In Sanjay Kumar Aggarwal's case to which one of us (S. Ratnavel Pandian, J) was a party, it has held that it is not the law that no order of detention can validly be passed against a person in custody under any circumstances. In Kamarunissa v. Union of India Another 1990(4) Judgments Today 7 while the detaining authority has stated the offence with which the detenu therein had been charged was bailable, the Joint Secretary who filed the counter explained it saying that he passed the detention order on his past experience in such cases normally and almost as a matter of rule the court grants bail after the investigation is completed. While dealing with that explanation, Ahmadi, J speaking for the Bench observed. ...having regard to the background in which this expression is used in paragraph 15 of the grounds of detention and bearing in mind the explanation and the fact that in such cases courts normally grant b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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