Judgment:
V.D. Gyani, J.
1. By this petition under Article 226 of the Constitution, the petitioner, who has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short 'the COFEPOSA Act'), in implementation of detention order dt. 8-1-1992 filed as Anns. A and B to the petition, challenges his detention and prays for issuance of a writ of Habeas Corpus.
2. Facts leading to the passing of detention order and filing of this petition have been detailed in the grounds of detention Ann. 'C'. Acting on information the officers of Central Excise, Indore, searched silver Refinery of one Keshav Kumar on 15-10-1991 which yielded 192 slabs of silver weighing 154.012 kg. Keshav Kumar on being questioned could not produce any document in support of his legal acquisition of silver slabs in question. It was, therefore, reasonably believed to be foreign origin and illegally smuggled into the country. Thus liable to confiscation under the provisions of the Cutoms Act, 1962. While this search was going on two officers were keeping watch outside the refinery, intercepted one Maruti Van MP-09-A5273. This Van was also searched which resulted in recovery of 9 silver slabs of foreign origin wrapped in gunny bag weighing 324.539 kg. The occupants of the Van including the petitioner failed to support and account for their possession of the silver slabs. The petitioner had no document in support of his possession of the silver. It was, therefore taken to be of foreign origin and seized under the panchnama. The Maruti Van in question was also seized. Statements of the persons including the petitioner were also recorded under Section 108 of the Customs Act.
3. It is the respondents' case that the petitioner had given his Van to one Ashok for transportation of silver. Placing of 9 silver slabs in the Van is said to have been witnessed by the petitioner. The vehicle admittedly stands registered in the name of Shri Sanjay Neema, who is said to be an employee of the petitioner, who had in fact purchased the Maruti Van in the name of Sanjay Neema, but it was never in his possession nor did he know that the Van in question was being used by him for the alleged illegal purpose.
The petitioner alongwith others were arrested for contravention of the provisions of Customs Act on 16-10-1991 and produced before the judicial magistrate first class, Indore on the same day. Bail applications were moved on their behalf and they were remanded to the judicial custody. The petitioner was granted bail by the Addl. Sessions Judge, Indore. The detaining authority, referring to the above facts has ultimately concluded as under:
'I have no hesitation to arrive at a conclusion that you have been engaged in transporting smuggled goods.
Even though the prosecution and adjudication proceedings under the Customs Act, 1962 and other laws for the time being in force are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from engaging in transporting smuggled goods in future..'
It is in the above background of events that the order of detention under challenge has been passed by the detaining authority the respondent No. 1.
4. The two orders Anns. 'A' and 'B' read as follows :
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F.No.673/12/92-Cus.VIII
Government of India
Ministry of Finance
Department of Revenue.
New Delhi, the January 8,1992.
ORDER
WHEREAS, I, Mahendra Prasad, Joint SEcretary to the Government of India, especially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention to Smuggling Activities Act, 1974 (as amended) am satisfied with respect to the person known as Shri Suresh Neema S/o Mohanlal, 81 Juna Peetha, Indore, that with a view to preventing him from engaging in transporting smuggled goods in future, it is necessary to make the following order:
NOW, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Shri Suresh Neema be detained and kept in custody in the Central Jail, Indore.
Sd. MAHENDRA PRASAD
JOINT SECRETARY TO THE GOVERNMENT OF INDIA.
Shri Suresh Neema, (Aged 30 years)
s/o Mohanlal
81 Juna Peetha,
Indore.
4. Shri Kulshreshtha learned counsel appearing for the petitioner has assailed these orders of detention on the following grounds.
That the order has been passed without any application of mind as is clear from the English version of the order (Ann. 'B') while the Hindi version of the order Ann. 'A' states that the object of detention was to preventing the petitioner from dealing in smuggled goods. The order Ann. 'B' states the object to be to prevent the petitioner from engaging in transportation of smuggled goods in future. It is thus manifestly clear that the detention order has been mechanically passed without any application of mind by the detaining authority. The real purpose of detention itself was not clear to the mind of the detaining authority. The order therefore is liable to be quashed as ab initio void and illegal.
Referring to the return filed by the respondents particularly the last para thereof which reads as follows -
'The respondent No. 1 and 2 therefore humbly pray that this Hon'ble Court may be pleased to
(a) maintain the order of detention dt. 8-1-1992 passed in favour of the petitioner as the inquiry in the instant case is continue and release of the detenu may cause frustration of the inquiry and he may tamper with the records and the evidence which may come up in the course of investigations and there is also likelihood that the detenu may involve himself again in smuggling activities the moment he is set free.
(b) No award as to costs may be given to petitioner.
It was submitted by the learned counsel for the petitioner that the purpose of continued detention is wholly irrelevant to the object of the preventive detention under the COFEPOSA Act.
5. Referring to Anns. E and F applications dated 14-1-1992 and 22-1-1992 moved by the Advocates on behalf of the petitioner seeking interview with the detenu, the same were not granted. Despite the fact that by letter dated 23-1-1992 (Ann. 'H') the respondent No. 2 directed the respondent No. 3 to permit such an interview so as to enable the detenu to make effective representation but no such interview was granted. Thus, denying a valuable right of consultation with the counsel in the matter of making an effective representation. It was therefore urged that the denial of this valuable right vitiates continued detention of the petitioner.
Referring to the grounds of detention filed as Ann. 'C to the petition and pointing out the blank space left therein learned counsel for the petitioner submitted that it was inconceivable that such spaces could be left blank. It is merely indicative of a very casual matter like furnishing the grounds of detention. Lastly it was urged that the representation as could be prepared in the circumstances was admittedly received by the jail authorities on 5-2-1992 but it was not forwarded till 8-2-1992. Thus, there was wholly unjustifiable delay in forwarding the representation.
6. Shri B.G. Neema, learned standing counsel appearing for the Union of India has stoutly opposed grant of any relief to the petitioner who according to him was involved in smuggling activities as is evident from the seizure of 9 silver slabs of foreign origin wrapped in gunny bags weighing 324.539 kg. and seized from Maruti Van MP-09-A-5273. Learned counsel for the respondents strenuously urged that the petitioner was engaged in transportation or selling or keeping smuggled goods. He craved for reading the Hindi version alongwith the order in English. It was also urged that the petitioner being a graduate understands both the languages - English as well as Hindi. As for forwarding of representation made by the learned counsel for the respondents submitted that it was received by the Central Government on 12-2-1992 and was rejected vide memo dated 5-3-1992. Thus, there was no violation of Article 22(5) of the Constitution. Blank spaces as pointed out by the petitioner's counsel have been denounced by the learned counsel for the respondents as of no consequence. They are mere omissions in typing. Since the allegation had been made about delay in forwarding the representation, the Superintendent Central Jail, Indore respondent No.3 has also filed his return duly supported by an affidavit.
Shri Nigam, Government Adv. appearing for the respondent No. 3 the Jail Superintendent, submitted that there was nothing wrong in returning the representation to the petitioner for reading the same before forwarding to the authorities concerned and it was accordingly forwarded no sooner it was returned by the petitioner on 8-2-1992.
7. The first question that arises for consideration is regarding the object of detention on a plain reading of Section 3(1) of the COFEPOSA Act it would be clear that a detention order may be passed by the Central Government or State Government or an officer specified therein on satisfaction with respect to the person sought to be proceeded against and 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 preventing him from -
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,
it is necessary so to do, make an order directing that such person be detained.
So far as the present case is concerned, the question of conservation or augmentation of foreign exchange is not involved. The detention order Ann. B as passed by the respondent No.l, the detaining authority, is to achieve the object of preventing the petitioner from engaging in transporting smuggled goods in future, on the ground which falls within the purview of Sub-section (l)(iii) of the COFEPOSA Act. The same order, in Hindi when read as it is, indicates an altogether a different object. It specifically excludes transportation or concealing smuggled goods. The object of detention as per Ann. 'A' is to prevent the petitioner from dealing in or keeping smuggled goods otherwise than by engaging in transporting. It is this inconsistency in the object of passing the detention order which manifestly indicates non-application of mind.
8. It would be correct to say or suggest that order Ann.'A' is the translation of Ann. B. The law does not provide for such a translation and secondly the return itself states at number of places that the order Ann. 'A' in Hindi is an original order. If that be so, then there is no scope for two different objects inconsistent with each other, being indicated or reflected by the detention orders in Hindi and English against one and the same person.
9. The order under the provisions of Section 3(1) of the COFEPOSA Act can be passed with a view to preventing the petitioner from any of the five activities enumerated therein. But in the instant case the grounds referred to in Ann. A and B are exclusive of each other.
10. The application of mind in passing the detention order, is condition precedent, although the order is based on subjective satisfaction of the detaining authority.
11. The learned counsel for the respondents argued that the petitioner understood both the languages - Hindi and English. Therefore no prejudice can be said to have occasioned to him. Really speaking in matters relating to preventive detention involving liberty of a subject question of any prejudice or likelihood of prejudice is not germane to the issue.
12. An order of preventive detention under Section 3(1) of COFEPOSA Act based on any one of or more of the grounds enumerated thereunder from I to V, can be made with a view to preventing the detenu from indulging in any of the activities as described in I to V of Sub-section (1) of Section 3 of the Act. When the order is passed in more than one languages, the order must point to the same object and grounds. Whether it was with a view to preventing the detenu from smuggling of goods or engaging in transporting smuggled goods or concealing or keeping of smuggled goods.
13. The objects and grounds as enumerated from I to V in Sub-section (1) of Section 3 of the COFEPOSA Act are disjunctive. Acts of smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods have been put together with disjunctive or in between them. The Supreme Court in Kishore Mohan Bera v. West Bengal -1972 (3) SCC 845 in a case arising under the Maintenance of Internal Security Act (for short 'the MISA') held that the detention order alleging danger of maintenance of public order or security of the State in disjunctive manner, is invalid. The Supreme Court expressed its view that when such equivocal language is used in an order of detention, and the detenu is not told whether his alleged activities as set out in the grounds of detention fell under one head or other or both, a detenu might find it hard to make an effective representation, on valuable right guaranteed to him under the Constitution.
14. A similar position arises in this case. It was sought to be suggested during the course of arguments by the learned standing counsel for Union of India, that both the orders Ann. 'A' and 'B', in Hindi and English respectively, be read together. The grounds for detention mentioned in these orders are mutually exclusive, The order in English speaks of detention with a view to prevent the detenu from engaging in transporting smuggled goods; while the detention order in Hindi Ann. 'A' excludes this very ground of detention. It speaks of preventing the detenu from keeping, concealing and dealing in smuggled goods; Otherwise than by engaging in transporting smuggled goods. How can such an order of detention based on mutual exclusive grounds, be passed against one and the same person at the same time by the same detaining authority? It is not merely demonstrably indicative of total lack of application of mind, but also seriously hampers the detenu in making an effective representation.
15. The fact that the detention order in Hindi as supplied to the detenu and filed by him as Ann. 'A' to the petition, does not bear signatures of the detaining authority, is hardly of any consequence. This order Ann.'A' has not been disowned or denied in the return filed by the respondents and the affidavit sworn by the detaining authority. On the other hand the order Ann. 'A', has been described as 'original' in the return at various places.
16. The order of detention is liable to be quashed on this short ground alone.
17. The inconsistency in the ground of detention is not merely confined to the detention order but is also apparent in the ground of detention. Ann. 'C in English and Ann. 'D' in Hindi, are supplied by the detaining authority to the petitioner. The grounds in Ann. C and D are exclusive of each other. This again reflects a total non-application of mind on the part of the detaining authority resulting in vitiation of order of detention.
18. Shri Neema learned standing counsel urged that the petitioner understands both the languages English as well as Hindi. The crucial question that arises for consideration is not the understanding of the detenu but it is the application of mind by the detaining authority on what grounds the subjective satisfaction essential for passing a preventive detention order was arrived at. In the order passed in more than one language, referring to different grounds, it points to lack of application of mind on the part of detaining authority.
19. In a recent case the Supreme Court dealing with detention orders, passed in English and Gurumukhi, and the apparent variance between the two, the Supreme Court held as follows :
'We are, therefore, of the opinion, that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Article 22(5) of the Constitution' [A.I.R. 1990 S.C. 1184 - Vijay Kumar Dhama @ Koka v. Union of India and Ors.).
20. Since the order of detention and petitioner's continued detention have been held to be illegal we do not go into the question of denial of opportunity to the detenu to have legal consultation and advice in the matter of making an effective representation and delay in forwarding the representation.
21. As already held above, that the order of detention is liable to be quashed, it is accordingly quashed. Petitioner's continued detention is also held to be illegal. This petition deserves to be allowed. It is accordingly allowed. The detenu likewise Neema petitioner be set at liberty forthwith.
S.D. Jha, J.
22. I would like to add the following :-
23. In my opinion grounds I to V of detention set out in S. 3(1) may not in every case be read disjunctively, Subject to as aforesaid, I agree with the conclusion recorded by Brother Gyani, J. that the order suffers from lack of application of mind and on that account be quashed.