V.S. Dave, J.
1. This Habeas Corpus Writ Petition is filed challenging the legality of the detention order, dated June 4, 1985, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (here in after referred to as 'the Act'), on which date two persons, namely, Sita Ram Somani and Om Prakash Soni, the petitioner, were detained by two separate orders but having close association and implicating one another in the act of smuggling, both the persons were arrested on the same day, i.e., January 1, 1985, and were released on bail by a single order. Both after granting bail, were detained under the aforesaid Act and filed separate Habeas Corpus Writ Petitions. D.B. Habeas Corpus Writ Petition No. 1425/85 was heard and disposed of by a Division Bench consisting of S.C. Agrawal and Mahendra Bhushan Sharma, JJ. vide their order, dated September 25, 1985, while this Habeas Corpus Writ Petition has come before us. In fact both the Habeas Corpus Writ Petitions ought to have been decided together and we have asked the Registry to put this case before the same Bench but we were informed that their Lordships were sitting in the Single Bench and, therefore, we have heard the arguments separately in this petition and a separate decision is given though in both the cases the material placed is almost identical and in fact it is a case where the orders of detention of either of the two are passed on the statements and recoveries from both of them and a case of conspiracy as well. Yet we are deciding this case separately on its own merits and on the arguments which have been advanced before us by Mr. C.K. Garg, learned Counsel for the petitioner, though we have the benefit of having before us the decision of their Lordships in Sita Ram Somani's case where most of the grounds are common.
2. The petitioner is a resident of house No. 1340, Chankiya Marg, Subhash Chowk, Jaipur and according to him he is carrying on business of goldsmith which is his family business. On January 1, 1985, the officers of the Customs Department of the Government of India apprehended him while he was starting his Scooter which was standing outside the house of one Sitaram Somani and this scooter when was searched, 8 gold biscuits with Chinese origin mark were recovered from there. They sealed all the 8 gold biscuits, the scooter and also a slip of paper found on person of the petitioner where in some figures were written. On the same day the search was made at the house of Sitaram Somani and he too was arrested. During the search of his place 36 gold biscuits of foreign origin and 12,100 United State Dollars were recovered from him. The petitioner, Om Prakash, as well as Sitaram Somani both were arrested on the same day. The petitioner's statement under Section 108 of the Customs Act was recorded on January 1, 1.985, and January 6, 1985. On January 7, 1985, the petitioner was remanded to judicial custody by the Additional Chief Judicial Magistrate (Economic Offences) and his bail was granted by this court on January 17, 1985, and consequently he was released from jail on January 18, 1985. The petitioner's case is that on the same day, i.e., date of release he wrote a letter to the Collector, Customs informing that his statement under Section 108 of the Customs Act has been recorded under duress and signatures on Panchnama have been obtained forcibly at the point of revolver, and that he was not concerned with the alleged seizure of gold and foreign currency. The petitioner received summons from the enforcement officer under Section 40 of the Foreign Exchange Regulation Act which was replied by him and the correspondence was also going on with Assistant Collector (Preventive) Customs but in the mean time on June 4, 1985, the impugned order of the State Government detaining the petitioner under COFE POSA Act was passed and consequently he was detained on June 5, 1985. He was furnished the grounds of detention on June 10, 1985, against which he made a representation. According to him representation was not complete as he had not been supplied with all the documents he required for making an effective representation against the order of detention. His wife also moved a representation to the State on July 9, 1985. Some additional documents were supplied to the petitioner by the State Government and his representation was rejected on July 11, 1985, and that of his wife on July 26, 1985. Thereafter the case was referred to the Advisory Board for its opinion which consisted of three Hon'ble Judges of this Court constituted under the provisions of Section 8 of the Act. The petitioner was produced before the Advisory Board and after hearing the petitioner the Advisory Board sent its opinion wherein it expressed the opinion that there was sufficient cause for the detention of the petitioner. The petitioner's case in the petition is that he has been falsely implicated in the case and he is not involved in any illegal activity of importing gold. His statement is that he was concerned neither with the gold biscuits, nor the scooter. He denied the ownership and possession of the scooter and the gold biscuits. He does not know any person in the name of Sitaram Somani nor he has gone to his place at any time on January 1, 1985. It is submitted that he does not know any Prabhu Dayal of Fatehpur nor he ever sold smuggled gold to any person or to Chandra Prakash as allegd. The petitioner's case is that he has wrongly been shown to have been arrested on June 4, 1985 but he, has, in fact been, arrested on June 5, 1985, and the documents have been antidated. His submission is that Annexures R. 2 and R. 3 have been subsequently prepared as is evident from their perusal and further that on even plain reading of the grounds of detention it is made out that they are based on non-application of mind as there are factual errors. It is submitted that so far as ground No. 1 of detention is concerned, it has been mentioned that gold biscuits of foreign marks were recovered from the dickey of the scooter No RNB 5386 but it has not been considered that this scooter does not belong to the petitioner and there is no material on record to connect the scooter with the petitioner. It is submitted that other grounds also mainly 2, 3, 4 and 5 are based on incorrect facts and the customs authorities have deliberately and malafide mis-lead the Government. It is submitted that the petitioner has wrongly been termed as a smuggler and it is erroneous to say that he is habitual and professional smuggler. The petitioner's case in the alternative is that it is one solitary instance which, at best, is established regarding possession of 8 gold biscuits and the fact that he is engaged in this business for last two years is factually incorrect and there are no good grounds of detention and the petitioner is entitled to be released by issuing a writ of Habeas Corpus.
3. The State Government in its reply accompanied with the affidavit of Shri S.C. Pagoriya, Deputy Secretary, Home (Security), Government of Rajasthan said that the customs authorities were having definite information that the petitioner was indulged in smuggling activities pertaining to gold from Hongkong and he was a link in the conspiracy and it was on a definite source of information that they laid a trap and searched and sealed the scooter of the petitioner where from 8 gold biscuits of Chinese origin were recovered. The chit recovered from him when deciphered gave important information and thereafter Sitaram Somani's premises were searched, 36 gold biscuits and more than 12000 United State Dollars were recovered from his place. He made voluntary statements under Section 108 of the Act and the story of retracted statements are an after thought. It is submitted that all the materials have been collected and considered and it was after full satisfaction that his detention order was passed. It is submitted that there is no illegality or false mentioning of facts in the grounds of detention.
4. The Union of India by separate reply has come with a specific case that the customs department had recorded the statement of one Sudhir Kumar Khandelwal who was the owner of the Scooter RNB 5386 who had categorically stated that he had sold the said scooter to the petitioner in June, 1982. It stated that it is not a case where at a subsequent stage some search might have been made and the gold recovered but the petitioner was apprehended on the spot while he was starting the scooter and the Panchnama of the recovery was made then and there It is submitted that the statements given by the petitioner are voluntary. Respondents have submitted that the petitioner belongs to an international gang of smugglers, which is involved in gold smuggling activities. It is submitted that the petitioner is not a petty shop-keeper as told by him. He is having a telephone under the OYT quota. He also maintains a car and a scooter. The Union of India has supported the detention of the petitioner.
5. We have heard Shri C.K. Garg on behalf of the petitioner and Shri M.I. Khan on behalf of the State Shri B.P. Gupta on behalf of the Union of India.
6. The petitioner assailed the legality of the detention order on several grounds. It is submitted that the petitioner has not been supplied with the documents which were made available to the detaining authority and the selective process has been used which is not permissible. It is submitted that neither the grounds were supplied to the petitioner on June 5, 1985 nor the order of detention was served at the time of detention. It is submitted that in fact there was neither order of detention nor the grounds of detention existed when the petitioner was detained on June 5, 1985. It is submitted that Annexures R. 2 and R. 3 are subsequently manufactured documents. They are anti-timed and in cases of detention the person an expost facto order is bad in law. It is submitted that Annexure R. 3 has been issued 'c/o Superintendent, Central Jail, Jaipur' on June 4, 1985, on which date the petitioner was not even in detention and the sentence, 'that you have been detained in Central Jail' is patently wrong. How these two narrations would have crept in the document unless it is subsequently prepared. A perusal of the aforesaid documents goes to shows that while giving the grounds of detention and passing the order of detention a wrong information has been supplied to the detaining authority. It is then submitted that the petitioner prayed for additional documents vide annexure 21 but he had not been supplied any documents and because of the non-supply of the documents he could not make any effective representation and it vitiates the detention order. Regarding affording reasonable opportunity of making an effective representation it is submitted that it has been denied on various grounds such as all documents have not been supplied, the petitioner was not allowed to meet relations and lawyers despite requests and documents were not supplied till July 9, 1985. It is submitted that it is not known as to who was the detaining authority and whether the detaining authority applied its mind to the representation and further that it was on July 11, 1985, that the detaining authority rejected the representation on the day when the Advisory Board met. It is then submitted that the Chief Minister did not apply bis mind as there are factual errors in the grounds of detention. It is then submitted that reasonable opportunity was not afforded for defending the petitioner before the Advisory Board. Further argument of the learned Counsel is that the retracted statements of the petitioner and Sitram Somani have not been considered and non-mentioning of the retracted confession greatly prejudiced the case of the petitioner. It is further submitted that neither warrant of arrest was issued in accordance with the Code of Criminal Procedure not the procedure followed throughout and even reason for detention was not told. In this connection attention has been drawn towards the telegram sent by the wife, Annexure 17, and lastly it is submitted that the affidavit of the detaining authority has not been filed. Prabhu Dayal not having supported the department's case the only fact remains at best is the single act on the part of the petitioner when scooter was searched and an isolated case cannot bring him within the definition of a smuggler so as to call for his detention. His submission is that detention under Section 3(1) of the Act is completely vitiated. Learned Counsel for the petitioner in support of his submission placed reliance on Smt. Icchu Devi Choraria v. Union of India and Ors. : [1981]1SCR640 , Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra and Ors. : 1980CriLJ1263 , Asha Devi v. K. Shivraj; AIR 1979 SC 447, Kirit Kumar Chamanlal Kundaliya v. Union of India and Ors. : [1981]2SCR718 , and Mohd. Shakeel Wahid Ahmed v. State of Maharashtra : 1983CriLJ967 .
7. Replying to the aforesaid arguments the learned Counsel for the State, Mr. M.I. Khan, submitted that there is no provision in the COFEPOSA where documents are required to be supplied to the petitioner. It is only because of Article 22(5) of the Constitution of India that the documents are given else grounds also are to be supplied. He has drawn the attention of the court towards word 'grounds' as occurs in Article 22(5) of the Constitution and 3(iii) of the Act. He has also drawn the attention of the court to Article 22(1) and submitted that the information of detention has only to be furnished to the person detained and not to the wife, brother or children as argued by the learned Counsel for the petitioner. The learned Counsel also placed reliance on Article 22(6) and submitted that the respondents are not obliged to supply documents which are against public interest such as informal information etc. It is submitted that the grounds of detention have been divided into two categories and the basic facts have been mentioned therein. He said that the case of detention of the petitioner is clearly made out even from his own statement and the statement of Sitaram Somani. He has submitted that the court has to consider the social status of the petitioner who was an ordinary person but after indulging in smuggling activities owned a telephone in the OYT scheme and maintains a Car and a Scooter as has his connections with Sitaram Somani who and the members of whose family had been regularly visiting Hongkong and also the fact of three dealings with Sitaram Somani and not one. It has been admitted that thrice the deal was struck between the two, once one biscuit was purchased, second time three biscuits were purchased and third time eight biscuits were purchased. This all shows that there had been a continuous dealing between the parties. It is submitted that the petitioner's action has to be viewed in the light of fundamental duties as envisaged under Article 51(a) of the Constitution of India. It is submitted that Sitaram Somani and members of his family has visited Hongkong so frequently and their repeated visits and subsequent transactions had been at the behest of Om Prakash Soni and, therefore, there is direct relationship between Sitaram Somani and Om Prakash Soni. It is further submitted that as and when the meetings had taken place between two they always met at the hotels and three transactions as mentioned above, had taken place between them which clearly go to show that the petitioner has indulged in the act of smuggling within the meaning of law. It was further submitted that all relevant papers had been given to the petitioner for making representations and sufficient opportunity had been provided to him for placing its case before the Advisory Board who has confirmed the order of detention issued.
8. Replying to the arguments advanced on behalf of the State and the Union of India, the learned Counsel for the petitioner submitted that Annexure R. 3 on which the emphasis has been made and which is the basis for detention is useless document and is bad in law. It is submitted that the same is malafide also. It is submitted that making the mention of a fact which is not a fact makes the documents worthless. It is submitted that nothing has been stated in the reply filed on behalf of the State in reply to the attack made by the petitioner on this document and reiterated in the rejoinder. It is submitted that even while the reply was filed to the rejoinder the respondents could not meet the challenge made to Annexure R. 3. It is further submitted that Sitaram Somani and Om Prakash Soni are known to each other only after July, 1984 and not prior to it and, therefore, mentioning that the petitioner is engaged in smuggling activities for last two years is a mith and is not substantiated by any evidence. Thus, the ground is based on non-application of mind. It is further submitted that the copy of the retracted confession of the petitioner was not supplied and that not having been made available making a proper representation, the petitioner's case has been prejudiced. He has submitted that the petitioner categorically raised this ground in his petition and then again in rejoinder but no reply has been filed specifically on these points. It is submitted that all the replies submitted are evasive. It is further submitted that the disposal of the representations do not indicate that the retracted confession was ever considered. It must borne out from the order that the same was taken note of Reliance was placed on Asha Devi v. Shivraj and Anr. (supra), Kamal Narain Kapoor v. Union of India and Ors. 1976 Cr. LJ 1615 and Bhagwati Devi v. Union of India and Ors ILK 1975 (2) 791 (Delhi). On the strength of the aforesaid authorities it is submitted that the retracted confession must be noticed and taken note of and must be explicitely borne out from the order of detention. It is submitted that even a word has not been said on behalf of the State Government that the same has ever been placed for consideration. It is then submitted that some act or omission on the part of the petitioner is a condition precedent for bringing the case within the definition of smuggling as given under the Act. The reliance has been placed on Shew Pujan Indrasan Ltd. v. Collector of Customs : AIR1952Cal789 and Babulal Amthalal Mehta v. Collector of Customs Calcutta and Ors. : 1983ECR1657D(SC) .
9. We have heard the learned Counsel for the parties and have carefully gone through the case law cited and the record of the case.
10. First of all we would like to deal with the arguments of the learned Counsel regarding non-supply of documents and connected with are the submissions about the prejudice caused to the petitioner for non-supply of such documents despite demands which resulted in failure in making an effective representation and further non-furnishing of the facilities of proper representation before the Advisory Board. Mr. Garg's submission in this respect is that the record of the custom department in proposals reference has been made in detention order, dated June 4, 1985, ought to have been made available to him. His submission is that neither the record of the customs department as referred to in the second paragraph of the grounds of detention have been made available nor the copy of the Passport and other articles seized at the residence of Sitaram Somani nor the proposals which have been made at the various stages by one officer or another and then ultimately to which is said to have been approved by the Chief Minister have been made available. His submission is that the supply of the aforesaid document was absolutely essential for making the effective representation particularly when the facts mentioned therein were such which were not borne out from any of the documents supplied to him. The learned Counsel in this respect referred to Smt. Ichu Devi Choraria v. Union of India and Ors. (supra) wherein their Lordships have held as under:.it is the bounden duty of the court to satisfy itself that all the safeguards by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law..The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its alter in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion on personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. This court has also through its judicial pronouncements created various legal bulworks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however, wicked or mischievous he may be..If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them..It is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention..There can therefore be no doubt that in the present case, the continuance of the detention of the detenu after 19th June, 1980 was unconstitutional.
In Ganga Ramchand Bharwani's case (supra) it has been held as under:.Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue..The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenue..On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980 could get the same only on March 27, 1980, i.e, after more than one month. Thus, there was unreasonable delay of more than a month in supplying the copies to the detenues, of the material that had been relied upon or referred to in the 'grounds' of detention. There was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention, all the basic material relied upon or referred to in those 'grounds' must be supplied to the denue with reasonable expedition to enable him to make a full and effective representation at the earliest.
In Kirit Kumar's case (supra) it has been held as under:
Constitution of India, Articles 22(5) 226--Preventive detention Plea that copies of documents relied on by detaining authority not supplied to detenue High Court is not competent to determine relevance of those documents--Nor should it allow to go through confidential files and rejects the plea Cr. Appl. No. 218 of 1980, dated 25-11-1980 (Guj) Reversed. [Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) Section 3].
Constitution of India, Article 22(5), Preventive detention--Ground--Documents referred in ground not examined by detaining authority nor their copies supplied to detenue--Detention is illegal--Reversed--(Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) Section. 3).
Whether the documents concerned are referred to, relied upon or taken into consideration by the Detaining Authority they have to be supplied to the detenue as part of the grounds so as to enable the detenue to make an effective representation immediately on receiving the ground of detention. Where it is not done the detention would be void.
Where the endorsement on the file showed that the documents concerned were examined not by the Detaining Authority (Home Minister in the instant case) but by the Secretary and there was nothing to show that the note or endorsement of the Secretary was placed and approved by the Detaining Authority it must be held that there was no decision by the Detaining Authority that the documents were irrelevant. In the circumstances, it could not be said that the documents concerned were merely referred to in the grounds of detention but did not form the basis of the subjective satisfaction of the detaining authority at the time when it passed the order of detention. Criminal Application No. 218 of 1980, dated 25-11-1980 (Guj). Reversed 1980 SC 765, followed:Constitution of India, Article 22(5) Preventive detention--Representation--Detention ordered by Home Minister--Representation of detenue rejected by Secretary--Detention is void as representation is rejected by authority having no jurisdiction--Criminal Application No. 218 of 1980 dated 25-11-1980 (Guj). Reversed--(Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) Section 3.
In our opinion the aforesaid submission of the ld. counsel cannot be accepted. On entire perusal of the decision in Icchu Devi's case their Lordships have held that t e copies of the documents, statements and other materials relied upon and the grounds of the detention form part of such grounds and they have to be supplied to the detenue within the time prescribed under Clause 5 of Article 22 of the Constitution and Section 3(3) of the Act. Almost to the same effect is Ganga Ramchand Bharwani's case. In Khudi Ram Dass's case it was held that all basic facts and material particulars which influenced the detaining authority in arriving at the requisite decision leading to the making of the order of detention must be communicated to the detenue so that he may have an opportunity of making an effective representation. In Salini Soni's case their Lordships have held that the copies of the documents to which reference has been made in the grounds must be supplied to the detenue as parts of the grounds. This aspect of the case has been dealt with by the Division Bench of this Court in D.B. Habeas Corpus Petition No. 1425/85, Sita Ram Somani v. The State Rajasthan and Ors. a decision given by Hon'ble S.C. Agrawal and Hon'ble Mahendra Bhushan Sharma, JJ. on September 25, 1985. Their Lordships after discussing the aforesaid all the cases considered a recent decision of their Lordships of the Supreme Court in State of Punjab and Ors. v. Jagdeo Singh Talmandi 1984 (1) SCC 1596 wherein their Lordships of the Supreme Court rejected the contention urged on behalf of the detenu that the detaining authorities should have disclosed the evidence on the basis of which the order of detention was passed because in the absence of knowledge of such evidence the detenue could not have made an effective representation against the order of detention and observed that 'it is not law that the evidence gathered by the Detaining Authority against the detenu is also to be furnished to him'. Their Lordships of the Supreme Court considered the case of Icchu Devi and held, 'These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which has been collected against him as, for example, the evidence corroborating with the report of the C.I.D. is true and correct. As right to receive every material particular without which a full and effective representation refers to or relied upon any documents, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this court in Icchu Devi Chaurariya v. Union of India (supra).
11. In view of the aforesaid decisions and the decision of this court in Sitaram's habeas corpus petition we are of the opinion that there is no law which entitles the detenue to be informed about the origin or the source of information collected or received against him and he is only entitled to receive such material without which the full and effective representation cannot be made. The question is as to what is that material on the basis of which full and effective representation could be made in the circumstances of the instant case. A perusal of the detention order in fact discloses the basis on which the detention order has been passed and the petitioner as mentioned in the reply by the State Government was supplied with the copies of his statement and the statement of Sitaram Somani and as also the seizure memos and the relevant documents. In fact the petitioner was apprehended while trying to go on the Scooter and from his possession were recovered 8 gold build biscuits and a slip of paper. That slip of paper which has been deciphered later on connects the detenue with his transactions with Sitaram Somani and Sitaram Somani's statements have been furnished to the petitioner before making the representation. We have considered all the documents which have been furnished to the petitioner as well as also the grounds of detention and are of the opinion that it cannot be said that prejudice is caused to the petitioner for not making a full and effective representation against the order of detention either before the Government or the Advisory Board. In the cases like the present one where the petitioner alone is not indulged in the act of smuggling but is actively associated with Sitaram Somani from whose residence he has been seen coming out side his house, he has been apprehended are the circumstances in the background of which the case has to be decided. The law applies in the facts and circumstances of each individual case and there are occasions where the courts are convinced from the acts of the detenu that no prejudice is caused to the petitioner, then the order of detention cannot be held invalid merely because some particular document has not been made available as the circumstances which indicate that the petitioner was already in knowledge of all the facts regarding which he now intends to make grievance in the habeas corpus petition. Thus according to us no prejudice is caused to the petitioner for non-supply of documents regarding which he has made a grievance in his habeas corpus petition.
12. Mr. Garg's submission about the fact that the detention of the petitioner is based on one solitary act which could not justify the detention is based on the basis of Debu Mehto v. State of West Bengal : 1974CriLJ699 . He has also relied on : AIR1952Cal789 (supra) and : 1983ECR1657D(SC) (supra) and submits that not a word has been said on behalf of the State Government which brings the case of the petitioner within the meaning of definition of smuggling. In Debu Mehto v. State of West Bengal (supra) their Lordships of the Supreme Court observed as under:
We must of course make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based 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 whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct but even if there is a single act, such an inference may justifiably be drawn in a given case.
In that case the petitioners was involved in a single act of wagon breaking and as that was a solitary isolated act of wagon breaking committed by the detenu their Lordships held that one cannot be pursuaded to reach to the satisfaction in all probability the petitioner would be indulging in further acts of wagon breaking and no criminal propencities for wagon breaking could reasonably be inferred. In the instant case it is not the position. It is in the statement of Om Prakash Soni himself which was recorded on January 1, 1985, 25 days prior to this incident. He has obtained one gold biscuit of foreign mark from Sitaram Somani and five such biscuits on December 24, 1984. This fact is corroborated by the slip which was recovered from the pocket of Om Prakash Soni where after getting the document explained it is borne out that there had been transactions between the parties. This has been retracted by the petitioner subsequently but however, this is a question of fact which cannot be investigated in this habeas corpus petition and suffice it to say that there is evidence that the petitioner had been involved in the act of smuggling Chinise gold biscuit and it was not a single act which was before the detaining authority when the orders of detention were passed. In the grounds of detention itself the circumstances have been mentioned. When a person is shown to have his association with a person who is indulged in regular smuggling and if there are more than one transaction then there is sufficient material to infer that the person is involved in the entire affair. Mr. Garg's another submission that the fact of the petitioner's being involved in act of smuggling for last two years is factually incorrect as there is not an iota of evidence to that effect on record, is again a circumstance which we do not consider enough to quash the detention order. As we have already stated above that a man is known by company he keeps, similarly a trade or smuggling is known by the associations he has and it is not an isolated act which alone has to be taken note of. The consideration while judging all these things have to be looked into by considering various aspects of the matter. In the instant case there is enough material to come to the conclusion that the petitioner did not have a business where he could maintain a car, a scooter and own a telephone in OYT scheme. All these circumstances have to be taken together while considering the case of the petitioner in habeas corpus petition and looking into the detention order. At times in the cases like this it may be absolutely difficult together all the circumstances in a short period to un-earth a case of regular smuggling. But the circumstances are always indicative of the fact that a person who intends to be neorich over-night and who is found to be in league with a person who and the members of whose family are frequently visiting Hongkong is none who can fall within the definition as given in Section 3.
13. As regarding the submission of the learned Counsel for the petitioner that the detaining authority has not applied his mind properly or is a case of complete non-application of mind. The State Government has placed the chain of events which have taken place in the case. It has clearly been mentioned that the State Government before passing the order of detention has not only called for the entire record but the Screening Committee was also formed and all the relevant documents were got screened, examined and processed at different levels and it was thereafter the matter was placed before the Hone Secretary who was competent to dispose of the matter under the rules of buisness disposed of the case and placed the papers before Hon'ble Chief Minister who also held the port-folio of Home. He examined the case and applied his mind and affirmed the view of the Home Secretary and it was thereafter that the detention order was issued on June 4, 1985. We had the benefit of going through the file which has been processed and we are of the opinion that nothing was kept behind and no facts were with held including the retracted confession of the petitioner and Sitaram Somani. Regarding the denial of opportunity of being represented before the Advisory Board, suffice it to say that their Lordships of the Supreme Court in Suresh Bhojraj Chelani v. State of Maharashtra : : 1983CriLJ342 have held that there was no question of violation of Article 14 of the Constitution on account of the presence of the customs officers before the Advisory Board to produce files and documents as directed by the Advisory Board in as much as the Customs officers had neither pleaded nor argued the case on behalf of the Government before the Advisory Board. The petitioner could not substantiate in the instant case also that the officers of the custom department or the Home Department had either pleaded or argued the case on behalf of the Government before the Advisory Board. The Advisory Board consisted of three senior Judges of this Hon'ble Court had applied their mind and had confirmed the order of detention.
14. Looking to the entire facts and circumstances of the case and considering all the aspects of the matter we are of the opinion that present one is not a case where there might have been failure to observe the procedural safe-guard and there was a subjective satisfaction of the detaining authority when due regard was given to all the relevant materials which were placed before it by the responsering authority and we find no grounds to accept this petition.
15. Having regard to the various submissions and keeping in view the judgment passed in D.B. Habeas Corpus Petition No. 1475/85. Sitaram Somoni v. State of Rajasthan we are of the opinion that none of the contentions raised by Shri Garg merits acceptance and no case is made out for holding that the detention of the petitioner, Om Prakash Soni, is illegal. The Habeas Corpus Writ Petition, therefore, fails and is dismissed. There shall be no order as to costs.