Judgment:
S.S. PARKAR, J.
1. By this petition the petitioner has challenged the order of detention of the detenu by name Smt. Dilshad Salim Mamdani under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as 'COFEPOSA ACT'.
2. The detenu, a lady, was detained on 7-4-2003 under the provisions of COFEPOSA Act pursuant to the order issued under Section 3(1) of the said Act on 5-4-2003. As per the order of detention it was necessary to issue the order of detention with a view to prevent the detenu from smuggling goods in future.
3. The detenu and her husband by name Salim Mohammed Ali Mamdani were apprehended at the Mumbai Airport while departing for Dubai via Baharain by the Gulf Air Flight GF 057. After verifying her travel documents suspicion arose that she along with her husband was carrying some contraband goods. On their personal search they were found carrying US $ 4000 which they had acquired officially under the Basic Travel Quota. Thereafter their two checked in baggages, which were two zipper hand bags, where also searched in which Indian currency notes to the extent of Rs. 36,00,000 were concealed in the chilly powder packets. The statements of the detenu as well as her husband were recorded on the same day under Section 108 of the Customs Act. As per their statements they had visited Dubai twice earlier and their travel was arranged by one Raja who secured visa, ticket and the Basic Travel Quota of US $ 2000 for each of them. As per the statement of her husband the said Raja had offered him monetary gain of Rs. 5000/- for taking the bags which were delivered to him at the Airport.
4. Mr. Khan appearing for the petitioner challenged the order of detention on two grounds mentioned in para 4(i) and (ii) of the petition. As per the said grounds the detenu in her statement had stated that she did not know about the contents of the two bags which were given to them by Raja to carry to Dubai and she did not know about the money which were found in the said bags. According to her statement her husband had told her that they would get about Rs. 5000/-for the said trip. It is further stated that in the statement of her husband it is nowhere stated that the detenu was in any manner aware of the contents of the said bags in which the Indian currency was found. It is the case of the detenu that she had merely accompanied her husband and was not in the know of the alleged facts pertaining to the seized currency. It is, therefore, submitted that there was no material for the detaining authority to rationally arrive at subjective satisfaction that the detenu was in any way involved in the seized currency and that she had any mens rea or guilty mind in the alleged contravention of the provisions of the Customs Act and, therefore, there was no necessity for clamping down preventive detention on her and the order is thus mala fide, null and void. It is further submitted that no case is made out to show the detenu's culpability in the alleged crime and, therefore, the impugned order of detention issued against the detenu deserves to be quashed. It is also pointed out that the US $ 2000 were allotted to the detenu under Basic Travel Quota and not Business Travel Quota as erroneously mentioned by the detaining authority in the grounds of detention. It is further pointed out that undisputedly the detenu's husband Salim Mohammed AH Mamdani is also detained by a separate order of detention issued against him under Section 3(1) of COFEPOSA Act and that the passports of the detenu as well as of her husband were seized by the Customs Authorities and the same are in their custody.
5. In support of his submissions, Mr. Khan referred us to the two recent decisions of the Supreme Court. Firstly, he relied on the Judgment of the Supreme Court in the case of V.C. Mohan v. Onion of India and Ors. reported in 2002 SCC 648. In para 13 of the said Judgment the Supreme Court has observed that merely because a statute has been engrafted in the statute-book empowering the officer to exercise power of detention that does not mean and imply that the official concerned would be at liberty to whittle down the liberty of the citizens of the country. The constitutional sanction for preventive detention, according to the said Judgment, cannot be said to be without any limitation and the governmental authority ought to be fair and reasonable. It was further observed that the accepted methodology of governmental working should always be in tune with the concept of fairness and not de hors the same. When a person is being placed under detention without trial there is no scope for overzealous action or for acting without due and proper application of mind and in either situation law courts should be able to protect the individual from the administrative ipse dixit. It was further observed that the draconian concept of law has had its departure and rule of law is the order of the day and it is this rule of law which should prompt the law courts to act in a fair and reasonable manner, having due regard to the nature of the offences, vis-a-vis the liberty of the citizens.
6. Secondly in the case of Chowdarapu Raghunandan v. State of Tamil Nadu and Ors. reported in : 2002CriLJ1836 , the Supreme Court observed in para 14 of the judgment that though in appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent him it was necessary to detain him. It was also pointed out that it is settled law that an order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts but it must be of such a nature that an inference can reasonable be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non-application of mind by the authority on this aspect, then the court is required and is bound to protect the citizen's personal liberty which is guaranteed under the Constitution. It is further observed that subjective satisfaction of the authority under the law is not absolute and should not be unreasonable.
7. Applying the ratio of aforesaid two recent decisions of the Supreme Court to this case we are of the view that the detaining authority has not applied its mind to the fact that the detenu, who is a lady, was accompanying her husband on his tour to Dubai from Mumbai. Even on previous two occasions the detenu-lady had been to Dubai in the company of her husband, who is also under detention and she had never gone to Dubai all alone or with any other person in the past. If these facts were taken into consideration by the detaining authority, it would have been at once clear to him that detention of her husband with a view to prevent him from indulging in similar activities would have ipso facto prevented the detenu from undertaking such journey abroad in future for the purpose for which the visit to Dubai on 23-12-2002 was undertaken. From the background and the circumstances of the detenu and from her previous visits abroad it does not appear that the detenu-lady was likely to undertake such journey of her own without the company of her husband or in the company of some other person, especially after her arrest before the start of the aforesaid journey. The detaining authority has also not considered the fact that neither in her statement nor in the statement of her husband there is anything to show that the detenu was aware of the contents of the bags which were found containing Indian currency notes and are stated to be delivered to her husband at the Airport.
8. In our view in the above circumstances there was no compelling necessity for the detaining authority to exercise the power under Section 3(1) of COFEPOSA Act merely because the statute vests him with such power. The relevant circumstances have not been considered by the detaining authority as is evident from the contents of paragraphs 2 to 4 of the grounds of detention and the reply affidavit dated 10th October, 2003 filed by the detaining authority.
9. In view of the above, in our opinion, it was totally unreasonable for the detaining authority to arrive at the prognosis that the detenu was likely to indulge in any such prejudicial activities and, therefore, the order of detention is without any legal basis and thus unlawful and cannot be sustained.
10. In the result, this petition is allowed. The impugned order of detention is quashed and set aside and the detenu - Smt. Dilshad Salim Mamdani is directed to be released forthwith if not required in any other case. The rule is thus made absolute in terms of prayer Clause (a) of the petition.