M.K. Chawla , J.
1. Mr Martin Hans Peter, the petitioner, holder of a German Passport arrived at Calcutta Airport from Bangkok on 6-8-1986. He had a confirmed ticket for journey between Bangkok-Calcutta-Bombay and Zurich. The Customs Officers at Calcutta airport kept a secret watch on his movements. The petitioner became conscious of being suspected by the Customs Officers. He became further apprehensive when two of his associates were subjected to thorough search by the Customs officers. Out of the fright during the course of interrogation, the petitioner suddenly desired to back to Bangkok and, if not possible, to Katchmandu without baggage being examined by the Customs at Calcutta airport.
2. The Customs officers in order to be on the safe side recorded the statements of Mrs. Tanima Datta, the I.A.A.I lady receptionist and Miss Denaz Bhesania, ground hostage of Thai Airlines, who disclosed that the petitioner, in order to avoid customs check at Calcutta airport requested for help from Miss Denaz Bhesania to send him to Bombay as a transit passenger. The witness did not agree to his request and advised him to observe the normal facilities for clearance of his baggage through immigration and customs the petitioner again made futile attempts to go back to Bangkok. In the beginning, the petitioner attempted to misled by stating that he only had gold jewellery in his possession. His baggage and person were then searched resulting in the recovery of 26 pieces, circular gold tablets which collectively weighed 3,742.4 grams and were valued at Rs. 8,08,421/-. These gold pieces were found inside the unregistered accompanied baggage. Since the petitioner failed to produce any valid document/permit in support of the legal importation of the gold tablets, the same were seized by the Customs officers on the reasonable beliefs that the same were smuggled and were liable to confiscation under the provisions of Customs Act, 1962 read with Foreign Exchange Regulation Act, 1963.
3. In his statement made on the same day, the petitioner admitted the recovery and seizure of the aforesaid gold from his possession. he however, contended that the said gold was not for landing in India but was taken to be Zurich via Bombay and as such his ticket was booked for Bangkok-Calcutta-Bombay-Zurich. He further disclosed that two of his associates who were examined by the Customs Officers at Calcutta airport had been asked by two Nepalese nationals at Bangkok for carrying gold into India. He, in turn, entered into a conspiracy with the above said two associates who were examined by the Customs Officers at Calcutta airport had been asked by two Nepalese nationals at Bangkok for carrying gold into India. He, in turn, entered into a conspiracy with the above said two associates to decamp with the gold secretly to Zurich. As regards the gold was recovered, the special cavities inside the Suit- Case and the leather Jacker from where the gold was recovered, the petitioner discloses made by him for carrying gold for smuggling. He however, submitted that this was his first offense and expressed regrets in committing such offence without the knowledge of any customs and expressed regrets in committing such offense without knowing any customs rules and regulations. The statements of other connected witness were also recorded before the proposal for taking action under the COFEPOSA Act was initiated.
4. The petitioner was arrested u/s 104 of the Customs Act on 7-8-1986 and produced before the learned Chief Judicial Magistrate, Barasat. His bail application on the next day was rejected by the Chief Judicial Magistrate, Barasat. His subsequent application before the District & Sessions Judge, Alipur, met the same fate. The Calcutta High Court, however, released the petitioner on bail with two sureties of one lakh each, one of which must be local.
5. From the foregoing facts and circumstances, Shri Tarun Roy, Chief Secretary to the Government of India was convinced that the petitioner has been smuggling gold into India and unless prevented, he will continue to do so in future. He concluded that although the departmental adjudication proceedings are in progress in the matter, it has become necessary to detain the petitioner under COFEPOSA Act, with a view to prevent him from smuggling goods in future. This order is dated 3rd November, 1986. This very order is the subject-matter of challenge in the present petition.
6. The first and foremost contention of the learned counsel for the petitioner i that the order of detention stands vitiated in as much as the sole ground of detention is formulated on non-existent and factually erroneous assertions and reasons which are based on misconceived facts and disregarding of the statements relied upon. Further more, there is non-consideration of relevant and favorable material qua the detenu in the formation of the grounds by the detaining authority rendering the detention bad. Even though the respondents have denied the allegations but from the persual of the material on record, it can safely be said that it is a pure and simple case of non-application of mind and the subjective satisfaction has been arrived at on non-existent and misconceived evidence.
7. The following illustrations will make the point crystal clear :
------------------------------------------------------------------------Sl. Factually non-existent, erroneous, Actual facts as per the statementsmisconceived and incriminating relied uponfacts relied upon in the groundsof detention (Annexure -B)------------------------------------------------------------------------1. In para 1 at page 2 of the The detenu on a arrival atgrounds it is stated that 'Out Calcutta first contactedof freight during the course of Mrs. Taniam Datta the IAAIinterrogation, he (detenu) Lady Receptionist, who insuddenly desired to go back to turn book the detenu toBangkok, and if not possible, to Miss Denaz Bhesawa, GroundKathmandu without the baggage Hostess, Thai Airlines,being examined by Customs at whose statements have beenCalcutta Airport.' (emphasis relied upon and copieprovided) enclosed with the Rejoinder.A perusal of the statementsreveal that nowhere thereis any mention of 'fright'on the part of the detenuand he, in fact in the veryinstance told Mrs. TanimaDatta that he wanted to goto Zurich and wanted to bea transit passenger forBombay as per his confirmedticket for journey betweenBangkok, Calcutta, Bombayand Zurich. On being advisedthat he cannot be treated asa transit passenger forBombay, he requested to goto Kathmandu, failing whichto 'anywhere out of Inida'.The expression 'out offright' in the ground ofdetention is non-existentin the said statement andthe expression 'that hesuddenly desired to go toBangkok' is misconceived.2. In para 1 at page 2 of the grounds A persual of the twogrounds , it is stated that Mrs. statements reveal no mentionTanima Datta and Miss Denaz Bhesania of the words '..... in orderin their statements u/s 108 of the to avoid Customs check atCustoms Act, 1962 'disclosed that the Calcutta airport.....'Onsaid passenger (detenu) .... in order the contrary, Miss Denazto avoid Customs check at Calcutta Bhensania in her statementairport, request for help from Miss says that Mr. Bhowmick,Denaz Bhesania to send his (detenu) Supdt. of Customs told herto Bombay as an in-transit passenger.' that the detenu 'should not(Emphasis provided) go without custos checking'.Further, the later part ofthe adjoining para isclearly in contradiction of the assertion inpart 1 above, i.e. '... hesuddenly desired to go backto Bangkok.' 3. In para 1 at page 3 of the grounds The assertions areit is stated that 'Thereafter he misconceived and erroneoushe was asked to go to Customs ... as there is nothing tobut at this stage he again explored support the same in thethe possibility of going to statements of the detenuKanthmandu obviously to avoid or Miss Denaz bhesaniaexamination of his baggage....Then and/or Mrs. Tanima Dutta.he made another futile attempt togo back to Bangkok.4. In para 1 at page 3 of the grounds The assertion are errone-it is stated that 'In the ous, misconceived and non-beginning he (detenus) `attempt- existent. The detenu in histed to mislead by stating that he statement at page 11 says, asonly had gold jewellery in his under:-possession. However , after 'while I was coming back toprotracted interrogation and close that Customs Officer anotherexamination he ultimately confess- civil dressed man interrogateded that he had gold bullion in his pos- me and as I did not knowsesion.' the rules and regulations ofthis country I thoughtcarrying gold in transit toBombay and Zurich is not anoffence, As such,voluntarily I declared that I was having /carrying somegold in my biscuit-colouredsuit case.'(Emphasis provided).In para 2 at page 6,it is stated The assertion is misconceivedthat ' as regards the special cavities - inasmuch as it suppressedinside the suitcase and in the material words which theleather jacket...(detenu) admitted is in the following words atthat these had been made by him for page 22 of the detenu'scarrying gold for smuggling.' statement;(emphasis provided)Regarding the specially madecavities .. I would like tostate the same were ade by mefor carrying the gold safelyafter r5eceiving the same frommy aforesaid two friends fortaking to Zurich.'(Emphasis provided)6 .In para 9 at page 12 and 13, it The assertion is misconceive-is stated that 'at page 1 of the d and non-existent .Thesaid Notebook..some figures show con- detenue in his statement atversion of English weight of gold page 19 only says: ' I wroteinto India weight of Tolas. On these accounts forbeing asked in this regard, Mr. Martin understanding EnglishHans Peter admitted .... that he had weight of gold in... made the conversion of English comparison of Tola toweight of gold into India weight to grammes and tola toi.e. tola, for which it is evident ounces.' (Emphasis provided)that (detenu).... made the calculation are, in fact, now and atto assertion the worth of gold the relevant time, Indianattempted to be smuggled into india weights as well. Theat the local price.' (Emphasis provided) inference is, thereforeemisconceived.Further in the later part ofthe averments that 'ascertainthe worth of the gold'ascertain the worthof the gold attempted to besmuggled into India at thelocal price' is factuallyincorrect, non-existence andmisconceived. (Emphasis provided)7. In para 14 at page 15 of the grounds The assertion is absolutelyit is stated that '..... is evident misconceived as there is nothat you have been smuggling gold into material whatsoever in theIndia....' ground to reflect anyrepetitive activity onthe part of the detenu inthe past so as towarrant the averment that'you have been smuggling goldinto Inida.'8. In para 14 at page 15 of the grounds The assertion is prejudicial, it is stated that 'Although and is absolutelydepartmental adjudication proceeding misconceived, factuallyand prosecution proceedings are in incorrect, and non-existentprogress in the matter, I am as is evident from paras 13satisfied.....' and 15 on pages 3 and 4 ofthe counter-affidavit, whichsays - 'It is pertinent tosubmit that no complaintfor prosecuting has beenfiled till the passing ofthe detention order'(para13). 'There was not questionof supplying the copy of thecomplaint, Court's orders etc., and show causenotice....since the samehave not been filed/issuedat the time of passing ofthe detention order.'------------------------------------------------------------------------
8. As many as 8 factually non-existent and erroneous facts have been pointed out which formed part of and made the basis of the order of detention. The grounds do not flow from the material relied upon by the detaining authority. The mistakes or mis-statements made in the grounds of detention as well as in the affidavits clearly indicate total non- application of mind on the part of the detaining authority. To say the peast, an inference is inevitable that the order of detention is passed mechanically and in a very casual and cavalier manner without application of mind and, there for, is invalid. The contention of the learned counsel for the respondent is that Court cannot over look the fat of the petitioner having been found in possession of contraband gold when he landed at Calcutta airport. This fact, by itself, was enough for the detaining authority to conclude that the petitioner is engaged in the smuggled of gold into India and unless presented, will continue to do so in future. This contention on the face of it is devoid of any substance. It is well settled that in an order under the COFEPOSA Act, the decision of the authority is subjective one and if one of the grounds is non-existent or irrelevant of is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of non-existent or irrelevant grounds. In the case reporter4d as Dwarika Prasad Sahu V. The State of Bihar and others, 1975 SCC (Crl.) 177, the Supreme Court has gone to the extent of holding that :
'If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existence or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmly, because it can never be predicted to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad grounds or reason were excluded and the good grounds or reasons alone were before the detraining authority.'
The above said judgment is a complete answer to the objection of the respondents and set at rest the controversy.
9. This is not the end of the matter. The detaining authority has considered the relevant and favorable material quo the detenu which exist on the life. Though the detaining authority was not obliged to rely upon the said material but it was desirable on his part to have taken not of and discard it, by giving adequate reasons, The following passages from the statement of the detenu prima facie go to show that he has not brought n the gold for smuggling into India but his primary intention was to take it to Zurich.
(a) Page 7 of the statements of the detenu :
Immediately I rushed inside the said bathroom ... I found the said Zipperbig bag. I opened the same and found two big packets wrapped with yellow inside the bag. Hurriedly, I removed those cellophane papers and got smaller packets wrapped with black carbon papers. I also removed those black carbons and threw them away....' It is the common knowledge that wrapping in black carbons papers is registered to avoid detention in the X-Ray checking equipments installed at the airports. The fat that the detenu removed these packing clearly shows that he had no intention to enter Calcutta and had intended to carry gold to Zurich.
(b) Page 18 of the statements of the detenu :
'This is a telephone call ticket dated 6-8-1986. The first telephone No. 57-2031 is the telephone No, Air India, Calcutta airport and the second one No. 57-3685 also belongs to the same. On 6th I made telephone call to these telephone Nos. to give a tip to your Government regarding the smuggling of gold by two Nepalese as started in my earlier pages, who arrived on 6-8-1986 at Calcutta airport by TG-313, but unfortunately, nobody picked up the receiver and thus my honest effort went in vain.' (c) Page 9 of the statement of the detenu : As per our earlier arrangements with my friends, I was supposed to flee away with the aforesaid gold to Bombay and then to Zurich literally by stealing the said gold from those two Nepalese and for that purpose I made contact with a lady employee of Thai at Calcutta airport for making necessary arrangements to send me to Bombay and for that I also requested her to take me to transit longue. All these request were made to her before observing immigration. But unfortunately the said lady informed me that it was not possible and according to my confirmed ticket to Calcutta and Bombay, I had to observe all the immigration and customs formalities. I was not having any visa because I had a mind to go to Bombay transit passenger.'
10. The above said passage from the statement of the detenu clearly indicate that exonerating and favorable circumstances in favor of the detenu were ignored rendering the subjective satisfaction and thereby the order of detention bad ab initio.
11. The next submission of the learned counsel for the petitioners is that it is a case of double detention. The submission is that the petitioner was and continued to be in judicial custody to all after the passing of the order of detention and its execution. This is a mala fide exercise of power inasmuch as the petitioner was sufficiently prevented for the purpose for which the detention order was made. The impugned order does not reflect the compelling necessity to detain the petitioner.
12. The case of the respondent is that the detaining authority had duly kept in mind the fact that the detenu was granted bail by the High Court of Calcutta on 30-9-1986, but having failed to furnish the requisite sureties, he was remanded to judicial custody.
13. It is no doubt true that where a preventive order is passed against a person already confirmed to jail, the detaining authority must show awareness that the person sought to be detained is already in jail and yet a preventive detention order is a compelling necessity. Has this precaution been taken in this case or not is the proposition which requires a definite answer.
14. The preventive action pustules that if preventive step is not taken, the person sought to be prevented may indulged into an activity prejudicial to the economy of the country. In other words, unless the activity is interdictated, by preventive detention order, the activity which is being indulged into is likely to be repeated. Now if it is shown that the person sought to be prevented by preventive order is already effectively prevented, the power under sub-section (2) of section 3, if exerted, would simply that one who is already prevented is sought to be further prevented which is not the mandate of the Section. An order for prevented detention is made on the subjective satisfaction of the detaining authority. The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and matter of fact, it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn, whether he is likely even in the future to indulged in an activity of smuggling.
15. In this case, the petitioners is a foreign national, It is his first and the last attempt to smuggle gold into India. His attempt failed and he was arrested on 8-8-1986. His three bail applications were rejected by the Chief Judicial Magistrate, Barsat as well as the Sessions Judge, Alipur, Calcutta. Even though he succeeded in obtaining an order of his release on bail from the High Court of Calcutta, but the conditions imposed were quite onerous i.e. furnishing of two sureties of Rs. 1 lakh each, one of which must be a local. Being a foreign national, and prima facie a smuggler, it was just not possible for the petitioner to comply with the conditions for his release on bail. For that matter, he was served with the order of detention while in jail custody. The circumstances do indicate that there was no compelling necessity on the part of the detaining authority to pass the order of detention which has proceed to be a case of double detention. In similar circumstances, the Supreme Court in case reported as Binod Singh v. District Magistrate, Dhanbad, Bihar and others, : 1986CriLJ1959 , held as under :-
'Where the order of detention under Section 3(2) of the National Security Act was served upon the detenu, when he was already in jail in respect of a murder case and there was no indication that this factor or the question that the said detenu might be released to that there was such a possibility if his release, was taken into consideration by the detaining authority properly and seriously before the service of the order of detention, the continued detention of the detenu under the Act would not be justified. The power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the curious provision of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defense. If a man is in custody and there is no imminent should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.'
The above said Judgment is on all fours to the second contention of the petitioner that it is a case double detention and is liable to be quashed.
16. The last attack relates to the delay of near-about 3 months in passing the order of detention. According to learned counsel, there is absolutely no worth while Explanationn of this delayed action which would render the order of detention as invalid. Learned counsel for the respondent however, submits that in the counter, a satisfactory Explanationn has been furnished justifying the making of the detention order. On this aspect, the counter discloses, 'There is no undue delay in passing the order which was passed on 3-11-1986, thus being passed in less than 3 months from the date of the incident. This time gap of nearly 3 months was due to investigation and examination of the case at various stages. Lastly, the investigation continued till 9-10-1986. The statements of co-detenus namely Auer Raimund Joseph Berheard and Raginald Clyde Fulton were recorded on 9-10-1986. thereforee, the case after having been examined and scrutinized at various levels was placed before the detaining authority who passed the detention order on 3-11- 1986. It is also pertinent to submit that before the pausing of the detention order, some time was also spent in seeking certain clarifications by the detaining authority from the sponsoring authority. Besides, some time was also consumed in making copies of several documents numbering 145 which were to be supplied to the detenu immediately after his detention.'
This Explanationn, if it can be so termed, leaves much to be desired. Admittedly, the petitioners was arrested and detained on 7-8-1986. Almost all the documents came into existence on the same day. Nothing more was required to be done. It may be that the statements of Auer Raimund Joseph Berheard and Regainald Clyde Fulton were recorded again on 9-10-1986 but in this, they only confirmed their recorded again on 9- 10-1986 but in this, they only confirmed their previous statements recorded on the day of the incident. This step appears to have been taken in the garb of investigation to justify the long delay which has occasioned on the part of the respondents. Even then, this Explanationn does not fill in the long gaps. It is not explained as to how many witness were examined and, if so, on what dates. It is also not stated as to much time was consumed in translating the copies of the documents and by who.
The affidavit of the persons concerned from whom clarifications were sought and the time taken by them should have been placed on record indicating the number of days it consumed in communicating the desired information. In fact, there is no Explanationn in the eye of law and this delay of three months is quite fatal to the order of detention.
17. The delay of 2-1/2 months was held to be fatal in the judgment of our own High Court reported as Bhupinder Singh v. Union of India and others 1985 D.L.T. 493. The Division Bench on its this aspect concluded thus :
'As noticed earlier, in the return there is no Explanationn about the delay in the official record from 14-12-1984 to 28-2-1985. We find ourselves unable to agree with the counsel for the respondents that in the file, there is an Explanationn much less satisfactory Explanationn. In our opinion, the gap between 14-12-1984to 28-2-1985 reveals a complete disregard of the requirements of urgently dealing with cases involving preventive detention. The official record is silent as to who was handling it between the said two dates. We cannot accept the arguments of Mr.Bagai that this period of 2-1/2 months was utilised for preparing the draft grounds. We consequently hold that the delay in this case remains unexplained.'
18.Useful reliance can also be placed on the judgments reported as Sk. Abdul Munnaf v. The State of W.B., MANC/0210/1974; Laxman Khatik v. State of West Bengal, : 1974CriLJ936 ; Rabindra Kumar Ghosel v. The State of West Bengal, AIR 1975 SC 108 and Md.Sahabuddin v. The District Magistrate, 24 paragons and others, : 1975CriLJ1499 . Applying the said ratio to the facts of the case in hand, I have no hesitation to hold that the detailing authority has not acted swiftly in the matter and there was no probity between the prejudicial activity and the detention order. There is no worthwhile Explanationn for the delayed action. On this ground alone, the petitioner must succeed.
19. No other point has been urged nor requires going into.
20. As a result of the above discussion, I accept the petition and quash the order of detention. The petitioner be set at liberty forthwith unless required to be detained under any order of a competent court or authority.