TaxTMI 
TaxTMI 
2024 (7) TMI 871
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, we have taken the Petition for final hearing. We have heard Ms. Ansari for the Petitioner and Mr. Sandesh Patil for the Respondent Nos. 1, 2 and 4. 3. The Detaining Authority, being the Joint Secretary to the Government of India, in exercise of powers conferred under Section 3 (1) of COFEPOSA Act, directed detention of the detenu, since he was satisfied that it was necessary to detain him, with a view to prevent him from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. Pursuant to the order of detention being passed, the detenu was communicated the grounds for detention, which comprised of the report forwarded by the Sponsoring Authority i.e. the Directorate of Revenue Intelligence, Mumbai Zonal Unit. By referring to the material, the Detaining Authority arrived at the conclusion that the detenu is habitual offender and the material put forth by DRI, including seizure made and the confessional and corroborative statement, brought about sufficient material about his role as a key player in and being an organiser of smuggling of Areca nuts from Dubai in India. In a systematic manner, he was co-or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list, which are also being served to you along with the Grounds of Detention." 5. The aforesaid detention order is challenged by the Petitioner on various grounds and Ms. Ansari has specifically relied upon the following ground in the Petition. "......The Petitioner says and submits that the detaining authority after considering the material placed before him can issue detention order against such person under various categories or some of the categories mentioned under Section 3 (1) of the Cofeposa Act. The Petitioner says and submit that the detaining authority while issuing the impugned order of detention against the person should be sure for which category he wants to detained the person concern. The Petitioner says and submits that in the present case the detaining authority has issued detention order under Sections 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of the Cofeposa Act. The Petitioner says and submits that U/s. 3 (1) (iii) of Cofeposa Act there are various categories mentioned. The Petitioner says and subm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso placed on record to substantiate her contention. 7. Mr. Sandesh Patil, representing UOI has opposed the ground on which the detention order is assailed and he would place reliance upon a decision of the Madras High Court in the case of Mrignaini Kanwar Vs. State of Tamil Nadu Rep. by the Joint Secretary to Govt., Public (S.C.) Department & Anr. 1984 SCC OnLine Mad 478, where the same point arose for consideration, and somehow similar argument was advanced, that detaining authority was not certain, whether the alleged activities related to one of the acts falling under the clauses stipulated in section 3 (1) of the COFEPOSA Act or that he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other or both and, hence, the order is bad in law. The said argument, according to Mr. Patil, was turned down, by formulating the following issue for consideration:- "18. True, in the abovesaid paragraph, the disjunctive 'or' is used with reference to Cl.(iii) presumably copying down the exact words used in the said clause. The question for consideration is whether the use of the disjunctive 'or' instead of the conjunct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and also perused the impugned order as well as the affidavit in reply placed on record by the respondents authorities. Article 21 of the Constitution of India in clear and explicit terms provide that no one shall be deprived except in accordance with the procedure established by law. In the backdrop of this right being available, when a detenu is detained preventively, by means of preventive detention, the safeguards provided and specifically enumerated in Article 22(4) and (5) must necessarily be adhered to. The burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority, as it is he, who is allowed to form an opinion based on the material placed before him that the detenu has to be detained, as his activities have affected or likely to affect the public order. It is trite position of law the subjective satisfaction reached by the detaining authority must be based upon the material placed before him and burden is cast upon the authority to pass an order, after taking into consideration the relevant material, which is also furnished to the detenu. It is incumbent upon the authority passing an order to act....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ling of goods, it is necessary so to do, make an order directing that such person be detained : Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J. & K. Ordinance 1 of 1988)." 12. A bare reading of the above provision, would clearly reveal that the power to detain a person shall be exercised by an officer of a particular designation and the purpose for which the power is to be exercised is with a view to prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from committing any of the activities specified in clauses (i) to (v), as being separated by disjunctive word 'or'. As far as category (iii) is concerned, it has contemplated three acts; engaging in transporting or concealing or keeping smuggled goods. Even in category (iv) and (v), disjuncti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lies and services essential to the community. We are not concerned with a foreigner, to whom cl. (b) of the section also would apply, and therefore, that clause need not detain us. Section 3 thus clearly lays down that the power of detention conferred thereunder can be exercised on any one or more of the said grounds. Obviously, therefore, if the power is exercised on a ground not enumerated there, or in respect of activities which are not germane to any one of those grounds, such exercise would be beyond the jurisdiction of the detaining authority, and therefore, invalid. 6. As aforesaid, the District Magistrate detained the petitioner, as the impugned order recited, on the ground of preventing him from acting in any manner prejudicial to "the maintenance of public order or the security of the State", here the State of West Bengal. He was satisfied of the necessity of detaining the petitioner from the activities alleged against him in the grounds of detention set out earlier. The Act nowhere defines the expressions 'public order' and 'the security of the State', but by a series of decisions, to some of which only we need recall attention, the connotation a....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., therefore, it is always expected that exercise of the power to detain a person preventively shall be balanced against the injustice to a person, who is detained, and hence, the necessary safeguards contemplated under Article 22 must therefore be ensured to a detenu, one of which include a right to make representation. For making effective representation, it is necessary that the detenu is able to understand the grounds on which he has been detained and it is imperative for the detaining authority to communicate him such grounds. If statute permits detention on the specific grounds and as under the COFEPOSA Act, to prevent a detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, or abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods etc., all the acts being separated and distinct must receive its connotation and the detenu must be tested against the prevented acts, as specified in the COFEPOSA Act. 17. When one keep in mind this objective, the observations of the Apex Court in Kishori Mohan Bera (supra), gain prominence, as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gainst the Petitioner under Rule 30 (1) (b) of the Defence of India Rules. While considering the challenge of the petitioner to the detention order, suffering from non-application of mind, the Apex Court in Paragraph-7 of the said decision has expounded as follows:- "7. There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or" in such a case makes no sense. In the present order however we find that the disjunctive "or" has been used, showing that the order is more or less a copy of S. 3 (2) (15) without any application of the mind of the authority concerned to the grounds which apply in the present case " (Emphasis supplied) 6. It may be useful to advert to the dictum in Paragraph 8 of the same decision which reads thus:- "8. .......... It is the duty of the authority to see that the order of detention is in accordance with what the authority was satisfied about. If it is not so, the inference of casual....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Detaining Authority was on the disjunctive and not on the conjuctive grounds, and, hence, the Detaining Authority was not certain, as to the necessity of exercising his power of detention, on the ground of any one specific and particularised acts enumerated in clause (ii) to (iv) of Section 3 (1) of the Act. The argument was advanced in the wake of the decision in Kishori Mohan Bera (supra), but the observations therein were held not to be applicable, in a situation where the activities mentioned in various clauses of Section 3 (1) of the COFEPOSA Act are the activities, which are so inter-related and inter-connected with each other as they would often overlap and could be carried out in the course of the same transaction. The counter argument that the activities of smuggling of goods have a common thread running through it, being the 'smuggled goods' and the various activities are linked in different clauses of Section 3 (1) of the Act and, therefore, the decision in the case of Kishori Mohan Bera (supra) was held to be not applicable. Reliance was placed upon an earlier decision in the case of H. Askran Gulecha Vs. Union of India (Writ Petition No. 774 of 1978), which ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....goods. Drawing parlance with Section 3 of the Maintenance of Internal Security Act, 1971 (for short, "MISA Act"), where Section 3 is the power conferred to make orders for detaining certain persons on being satisfied with respect to any person, with a view to prevent him from acting in any manner prejudicial to (i) defence of India, the relations of India with foreign powers or the security of India (ii) security of the State or the maintenance of public order, or (iii) maintenance of supplies and services essential to the community. The Apex Court in Kishori Mohan Bera (supra) was confronted with the order of detention, which necessitated the action of detention to prevent the detenu from acting in any manner prejudicial to the security of the State or maintenance of the public order and it was concluded that there was no certainty as to whether the detention was necessary to prevent him from acting in any manner prejudicial to the security of the State or for the maintenance of the public order. In a similar situation, when clause (iii) of Section 3 (1) has clubbed three activities in relation to the smuggled goods i.e. either its transport or its concealment or keeping ....