ORDER
Shivashankar Bhat, J.
1. Petitioner challenges his detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the Act' for short) made on 7th November, 1988. He is detained ever since 17th November, 1988.
2. On 6-10-1988, the Officers of the Department of Revenue Intelligence, Government of India, tried to stop the car at Nelamangala by-pass road, in which the petitioner was seated along with Shivaji Rao Padaki (petitioner in W.P.HC.14/89); the latter was driving the car towards Bangalore, Since the car did not stop, the Officers chased it and finally stopped it. After the search of the persons, the car was searched. At the office of the Department (to which place, the car and its occupants were brought), the door panel board of the front side door was opened and examined. Two heavy packets were discovered in each of which 25 gold biscuits with foreign markings were found. A certified gold dealer, opined the gold to be of foreign origin, having regard to their quality etc.
3. In the statement recorded under Section 108 of the Indian Customs Act, the petitioner and his co-occupant of the car stated that these gold biscuits were given to Shivaji Rao Padaki through one Jayanthilal Vimaichand with Instructions to conceal the gold biscuits in the car, to transport them to Bangalore and dispose off the same. These gold biscuits valued at Rs. 19,00,000/-were therefore seized under a mahazar.
4. It is unnecessary to detail the further facts. The usual proceedings such as the arrest of the petitioner, his release on bail, recording of the statements of one Prithviraj and Vasantharaj, whose names were disclosed in the statements of the petitioner and Shivaji Rao, followed.
5. The Joint Secretary to the Government of India, made the impugned order of detention on 7th November 1988. Petitioner was served with the grounds of detention and the documents listed in the said grounds.
6. Though the Order does not refer to the particular sub-clause in respect of which the requisite satisfaction was arrived at by the Detaining Authority, the grounds explicitly relies upon Section 3(1)(ii) as the one under which, the order was made. But, the impugned order states that the authority was satisfied with respect to the petitioner that 'with a view to preventing him from engaging in abetting the smuggling of goods, it is necessary to make the' order of detention - (underlining is ours). The grounds of detention, in paras 1 to 9 summarise the materials leading to the satisfaction of the Detaining Authority to make the order. The satisfaction arrived at is stated thus, in para-10:
'On the basis of the above seizure, result of follow up action and the depositions made by you and others concerned and after duly considering the documents including the retractions as detailed in the annexed list, I am satisfied that you were engaged in abetting the smuggling of goods. Therefore, without prejudice to the action that may be taken against you under the Customs Act, 1962 and the Gold Control Act, 1968 in course of adjudication and prosecution proceedings by the local Customs Authorities, I am satisfied that it is necessary to detain under the COFEPOSA Act 1974 (as amended) with a view to preventing from engaging in abetting the smuggling of goods.'
7. On behalf of the first respondent, the Detaining Authority has filed an 'affidavit in opposition' traversing the averments in the Writ Petition.
7A. Sri B. Kumar, the learned Counsel for the petitioner, advanced the following contentions, in support of the Writ Petition:
1(a): Order of detention is not in terms of the power under which it is purported to have been issued. Therefore, there is no legal justification for the detention.
(b): There is no material to infer that the detenu was 'engaging in abetting smuggling of goods' and therefore detention order under Section 3(1)(ii) of the Act is based on no material.
II. In making the order of detention, reliance is placed on the statements of Vasantharaj and Prithviraj (referred here as co-accused); however, the retractions were not placed before the Detaining Authority and considered by him.
III. Retraction letter of the detenu was not forwarded to the Concerned Authority and therefore the procedure followed was unfair.
IV. The assistance of the Lawyer sought by the detenu to prepare his representation was denied to him.
V. Grounds of detention say that 'retractions' were considered, copies of which were not furnished to the detenu.
VI. Representations of the detenu were not considered by the Competent Authority, but by the Detaining Authority who had no such power to consider them.
RE. CONTENTION NO.I.
8. The Order of detention states that with a view to prevent the petitioner 'from engaging in abetting the smuggling of goods' it was necessary to make the order. Thereafter, the power under Section 3(1) of the Act was invoked (without specifying any of its sub-clauses), to detain the petitioner. In the grounds of detention, the first para refers to Section 3(1)(ii) as the provision under which the order was made. In para-10 of the grounds of detention, again, the Authority says that it was satisfied that the petitioner was 'engaged in abetting the smuggling of goods.' The earlier paragraphs of the grounds of detention show that the petitioner was inside the car driven by another (i.e., SHIVAJI RAO - Petitioner in WP.HC.No. 14/89), and the contraband gold, i.e., 50 gold biscuits, were found in the car concealed. The statement attributed to the petitioner was that the said gold biscuits were given to Shivaji Rao by one Vimalchand for transportation to Bangalore. The statement of the petitioner referred in para-3 of the grounds of detention, says that, petitioner was aware of the fact that his brother Jayanthilal Vimalchand and Shivaji Rao were doing the business in gold biscuits of foreign origin and that the petitioner accompanied Shivaji Rao in the car for disposing the gold at Bangalore as instructed by Jayanthilal; the supply of gold to Jayanthilal was stated to be by Vasantharaj and Prithviraj. The facts referred in para-5 of the grounds of detention also imply that the petitioner was assisting his brother Jayanthilal sometimes, in the business of disposing off the gold supplied by Vasantharaj and Prithviraj.
9. The plea is found in paras 22 and 27 of the Writ Petition, which are traversed in paras 24 and 29 of the 'affidavit in opposition' of the first respondent. In para-24 of the 'affidavit in opposition' it is stated that 'the Detaining Authority has clearly mentioned the appropriate clause of the Act against the detenu in passing the detention order', and therefore, the Order was not bad in law. This averment, on the face of it is incorrect, when read in conjunction with the detention order, which does not refer to any of the relevant clauses of Section 3(1) of the Act. Para-27 of this affidavit points out to the grounds of detention as referring to Section 3(1)(ii) and asserts that, in view of this specific reference to Sub-clause (ii) of Section 3(1) there cannot be any confusion.
10. The core of the petitioner's contention Is, that being 'engaged' in abetting the smuggling of goods is qualitatively different and is graver in nature than 'abetting the smuggling of goods'. It was argued that, a solitary instance of abetting is different in its content and impact on the mind of the Detaining Authority, than, indulging habitually or frequently in the act of abetting the smuggling of goods. When Section 3(1)(ii) applies to prevent a person from 'abetting smuggling of goods', it cannot be attracted to prevent a person from 'engaging in abetting smuggling of goods.' Therefore the petitioner wants us to infer that the user of the word 'engaging' in the order of detention, by itself, indicates the casual manner in which the Detaining Authority exercised his mind to arrive at the satisfaction, under Section 3(1) of the Act.
11. Para-5 of the grounds of detention shows that, the petitioner had indulged in assisting his brother Jayanthilal 'sometimes', - that means, he had been engaging himself in the offence on earlier occasions also. From this, the Detaining Authority could have inferred that the petitioner may repeat the committing of the offence again and again and therefore it is not possible to hold that there was no material at all for the satisfaction arrived at, by the Detaining Authority to the effect that the petitioner is likely to engage in the alleged offence.
12. Further, a solitary instance of having committed the offence may be a valid basis for arriving at the satisfaction that It is necessary to prevent the delinquent from engaging in indulging in the offence in future (vide SHIVAJI v. STATE OF KARNATAKA) : ILR1987KAR2011 .
13. The next part of the contention refers to the language of Section 3(1)(ii) which does not refer to the word 'engaging', as in Section 3(1)(iii). It is contended that the essence of Section 3(1)(ii) is altered by adding the word 'engaging' to the offence and therefore the purported exercise of the power under Section 3(1)(ii) was bad.
14. The learned Advocate General sought to justify the wording of the detention order by referring to Section 107 of the Indian Penal Code and contended that the word 'engaging' is an ingredient of the definition of 'abetment' under the said provision and hence user of the word 'engaging' to describe the activity or the action of abetment is only to emphasise the nature of the act attributed to the detenu. Reference was made to the decision of the Supreme Court in RAJENDRA-KUMAR NATVARLAL SHAH v. STATE OF GUJARAT AND ORS. : 1988CriLJ1775 , wherein a certain sentence added to emphasise the purpose of the detention order made under Gujarat Prevention of Anti-social Activities Act was held by the Supreme Court as an unnecessary superscription, but sustained the order. The Supreme Court held that, the sentence was wholly unnecessary, but, did not vitiate the order of detention.
15. In this context, the learned Standing Counsel for the Central Government cited PRAKASH CHANDRA MEHTA v. COMMISSIONER & SECRETARY, GOVERNMENT OF KERALA AND ORS. : 1986CriLJ786 and commended the need to apply a broader approach while construing the detention order in the background of the Act. That was a case where the detenu was furnished with the grounds of detention in English language and he contended that he was not supplied with the grounds of detention in the language known to him. On facts, Supreme Court found that the detenu was feigning ignorance of English language and therefore his contention was negatived. While considering the concept of 'grounds' under Article 22(5) of the Constitution, Supreme Court held that, the concept has to mean an interpretation which will keep It meaningfully in tune with the contemporary notions. Para-81 of the said decision was also referred. The learned Counsel for the Central Government contends that this Court should not nullify the detention order, only because, the impugned order uses the word 'engaging' while purporting to invoke Section 3(1)(ii) of the Act. If a single act can be prevented, it implies the prevention of plurality of such acts.
16. The learned Counsel for the petitioner, however, placed before us several decisions of the Supreme Court which emphasises the need to safeguard the personal liberty for which purpose, the procedural requirements of 'law are to be strictly construed and applied in the matter of preventive detention. In particular the decision in Mrs. TSERING DOLKAR v. THE ADMINISTRATOR, UNION TERRITORY OF DELHI AND ORS. : 1987CriLJ988 and AYYA alias AYUB v. STATE, OF U.P. AND ANR. : 1989CriLJ991 were, cited.
17. When Section 3(1)(ii) says that a person may be detained to prevent him from 'abetting in smuggling of goods', i.e., even a single act of smuggling, it cannot be said that the said provision of law does not permit the detention of a person from habitually or repeatedly abetting in smuggling of goods. Therefore, assuming that the word 'engaging' connotes a habitual, frequent or repeated indulging in the offence, Its user in the order of the detention under Section 3(1)(ii) cannot be said to be beyond its scope.
18. But, a reading of the grounds of detention, here, can lead only to the Inference that the act attributed to the petitioner was, that he was assisting in the disposal of the smuggled gold. This assistance in the disposal of the gold is after the act of smuggling is complete.
19. Section 3(1) has four sub-clauses. These sub-clauses clearly classify the different activities in connection with the smuggled goods. Sub-clause (i) pertains to the smuggling of goods; Sub-clause (ii) pertains to the abetting of the smuggling of goods; Sub-clause (iii) refers to the transportation etc., of the smuggled goods and Sub-clause (iv) pertains to harbouring the persons engaged in smuggling of goods or harbouring persons engaged in abetting the smuggling of goods. The distinction between smuggling goods and the subsequent act of transporting the said goods is very clearly brought out by Sub-clauses (i) and (iii). The smuggling of goods is complete when the goods are brought inside the border of the Country. The subsequent activities such as transporting the said goods and disposing the same may be the purpose behind the scheme of smuggling; but these acts are not part of the act of smuggling the goods. As observed by the Division Bench of the Calcutta High Court in SUKAT ALI BISWAS v. STATE OF WEST BENGAL AND ORS. 1976(1) Crl.L.J. 28 there is a clear distinction between the earlier act of smuggling and the subsequent actpertaining to the transportation of the goods within the Country and disposing the same. We respectfully agree with the observation made by the Calcutta High Court at para-5:
'The question of engaging in transporting smuggled goods cannot arise unless the smuggling aspect is complete, i.e., it has already become a smuggled goods. Only after the goods have become smuggled goods, the question of engaging in transporting of those goods arises. The movement involved in smuggling the goods cannot be said to be engaging in transporting smuggled goods. There is some kind of movement involved in smuggling the goods. But that is not engaging in transporting smuggled goods because unless the goods are smuggled the question of engagement in transportation of the same cannot and does not arise. In this context we may also refer to Section 3(1) of the said Act. This is divided into several sub-clauses. Clause (i) relates to smuggling of goods, Clause (iii) deals with amongst others, engaging in transporting of smuggled goods. Therefore it must be assumed that the intention of the legislature was to treat the transporting of smuggled goods as a ground separate from smuggling of goods as such. It is true that some kind of transportation is involved in smuggling of goods but as already stated that cannot amount to engagement in transporting of smuggled goods. The intention of the legislature is also made clear by making separate provisions regarding the same. Therefore, smuggling of goods cannot by itself amount to engagement in transporting the smuggled goods.'
20. The allegations against the petitioner are that he was found in the car driven by Shivaji Rao in which smuggled gold biscuits were found and the petitioner made a statement that he was accompanying Shivaji Rao to assist him for the disposal of the said smuggled gold. Nowhere it has been found, nor attributed to the petitioner that he was a party to the act of smuggling or abetted or aided any one in the act of smuggling. His knowledge of the smuggled goods if at all is only after his brother Jayanthilal asked him to assist the disposal of the smuggled gold in India. It has not come out anywhere that the petitioner assisted or aided the act of smuggling; nowhere It is even suggested that the petitioner knew of the particular activity of smuggling the gold into India and the persons connected with it, and that, the petitioner had contributed his services at any stage of smuggling the gold. The grounds made out against the petitioner in the grounds of detention would have been, most probably, sufficient to make an order of detention either under Section 3(1)(iii) of the Act or under Section 3(1)(iv), but not under Section 3(1)(ii) of the Act.
21. Mr. Shylendrakumar, learned Standing Counsel for the Central Government tried to sustain the Order under Section 3(1)(ii) by referring to Section 2(e) of the Act read with Section 2(39) and Section 111 of the Indian Customs Act. According to the learned Counsel the smuggling of goods has a very wide meaning in the light of the aforesaid provisions and any activity touching contraband goods resulting in its liability to confiscation is an act of smuggling and whoever aids such an act abets the smuggling of goods. It is not possible to accept this line of reasoning of the learned Counsel for the Central Government. If the contention reflects the real approach of the Parliament in enacting Section 3(1), Section 3(1)(i) alone would be sufficient to cover all the situations stated in Sub-clauses (i) to Civ) of the said section. The very fact that the Parliament has chosen to divide the different activities into several categories under Section 3(1)(i) to 3(1)(iv) shows that they are different concepts against which the taw aims to strike at. In this regard, we accept the interpretation of Section 3(1) of the Act, by the Calcutta High Court, extracted above.
22. The Detaining Authority, has certainly not applied his mind to the statutory provisions and to the facts of the case properly, resulting in a total misdirection in arriving at his satisfaction. The impugned order is the result of non-application of the mind. Consequently the order has to be set aside
RE. CONTENTION NO. II
23. In the grounds of detention reference is made to the statements of one Vasantharaj and another Prithviraj, the alleged suppliers of gold biscuits to Jayanthilal and Shivaji Rao. Vasantharaj in his statement dated 6-10-1988 recorded at Bangalore, stated that he had given 50 foreign marked gold biscuits to Jayanthilal on 3-10-1988, in his cold drink shop at Bombay with Instructions to keep them with Shivaji Rao and then dispose it off. Prithviraj was referred by Vasantharaj as his partner in procuring and distributing the gold biscuits; Vasantharaj, further said that on six or seven occasions he had handed over gold biscuits of foreign origin to Jayanthilal. Vasantharaj also gave some more details pertaining to his activities in connection with his dealings in foreign. marked gold biscuits. Prithviraj in his statement, substantially corroborated the facts stated by Vasantharaj. Both these statements in effect state that those two persons used to handover the gold biscuits to Jayanthilal. According to the petitioner, those two persons had retracted from their original statements and those retractions were not placed before the Detaining Authority and were not considered by the said Authority. The learned Counsel for the petitioner contended that failure to consider these retractions, when the Detaining Authority has referred to the earlier statements, resulted in the failure to consider relevant materials.
24. In the 'Affidavit in opposition' filed on behalf of the 1st respondent, it is averred that, the alleged retractions were in a different case bearing No. S/IV/ 121/88. According to the first respondent, these retractions pertain to different statements, other than the one relevant to the present case. The Bail applications filed by Vasantharaj and Prithviraj in the said case refer to the seizure of gold from one Laxmi U. Balse; those ball applications were in a case, arising out of a complaint lodged before the Special Court for Economic Offences, Bangalore, filed against Laxmi U. Balse and four others (wherein those two persons - Vasantharaj and Prithviraj were accused Nos. 4 and 5); but, the petitioner herein was not an accused in the said case. At paras 3 and 4 of the remand application in the said case, the statements made by Vasantharaj and Prithviraj, about the supply of gold biscuits to Vikramkumar and Ramesh, were referred, which was the subject matter of the case. There is a reference to the petitioner in this remand application pointing out to his another statement wherein he had admitted having supplied gold biscuits to Shivaji Rao and Deelip Telisara, which were seized on 6-10-1988. But the real emphasis of the remand application was on Laxmi Balse's case. In the bail application filed in the case, the petitioner generally and mechanically denied having made any statement to the D.R.I, officials voluntarily. Vasantharaj and Prithviraj averred that they had not made any confessional statement before the officers voluntarily and that their statements were obtained under threat, duress and coercion. This averment does not specify the statements regarding which the denial was made in the bail application. The denial referred is too vague and bald to be credited with any value to the contention urged by the petitioner here.
25. In the circumstances of this case, we find it not possible to accept the contention of the petitioner that the alleged retractions cover the statements of those two persons made in connection with the present case pertaining to the petitioner; hence the contention of the petitioner is rejected.
RE. CONTENTION NOS. III & V
26. According to the petitioner, he had given a letter of retraction with the jailor for onward transmission to the D.R.I. Officers and that the same was not considered. Para 15 of the Writ Petition raises this plea. The 1st respondent asserts that this was received only after the passing of the detention order and hence question of considering it does not arise.
27. Para-14 of the Writ Petition raises another plea that, the grounds of detention refer to 'retractions' having been considered by the Detaining Authority as is clear from para-10 of the grounds of detention, but copies of such retractions were not furnished to the petitioner. In reply, the first respondent stated that this reference to 'retractions' is a typographical error.
28. Again, these pleas of the petitioner have no merit. The bail application of the petitioner, in which petitioner resiled from his statement, resulting in the retraction from the earlier statement, is referred in the grounds of detention and considered by the Detaining Authority. Law does not require the Detaining Authority, to refer to each and every document containing the retraction of the petitioner, when, he has considered the retractions found in the bail application. The substance of the matter is whether the Detaining Authority had before it the fact that the petitioner had retracted from his statement, which has been relied upon for making the detention order.
29. In the circumstances of the case, non-filing of any affidavit, traversing the plea of the petitioner by the second respondent regarding the factum of the delivery of the letter, would not help the petitioner's case.
RE. CONTENTION NO. IV.
30. It is alleged by the petitioner that he was denied legal assistance sought by him to prepare his case i.e., to prepare his representation; the petitioner asserts having sought such an assistance on 18-11-1988 by handing over the request to the jailor. The 1st respondent has denied having received any representation dated 18-11-1988, A perusal of para-12 of the Writ Petition shows that the grievance of the petitioner was not that there was a total denial of the legal assistance, but, that there was a belated consideration of his request for legal assistance. The records placed before us show that the representation of the petitioner was on 19-11-1988 and the same was granted immediately it was received by the Competent Authority. Since there was no representation dated 18-11-1988 question of its consideration did not arise.
We reject this contention of the petitioner also.
RE. CONTENTION NO.V1.
31. The contention that the representation sent by the petitioner was not considered by the Concerned Authority has no foundation in the Writ Petition. The learned Counsel for the petitioner, therefore, did not pursue the question further.
32. In view of our conclusion on the first question, the petition has to be allowed and the Order of detention has to be quashed.
In the result, for the reasons stated above, this petition is allowed, the Order of detention dated 7-11-1988 bearing No. F. 673/588/88-CUS.VIII passed by the first respondent is quashed and the respondents are directed to release the petitioner (Deelip V. Telisra) from detention forthwith.