Meghjibhai P. Bhanushabi Vs. State of Maharashtra and Another - Court Judgment

Excerpt:
criminal - interpretation - section 3 (1) (iii) of conservation of foreign exchange and prevention of smuggling activities act, 1974 - question of law arising out of writ petition against detention order for consideration by present larger bench - whether expression 'engaging' in section 3 (1) (iii) requires commission of more than one act of transporting or concealing or keeping smuggled goods - section 3 lays down powers to pass and objective behind passing of detention order - word 'engaging' to be examined with reference to object to be achieved by detention order - so examined word 'engaging' to bring in its sweep even those persons who are not directly transporting or concealing smuggled goods but are instrumental or instigating or assisting in such activities. - - with a view to overcome the problems created by large quantity of smuggled articles within the territory, powers are conferred to detain a person in respect of whom there is reasonable apprehension that such person would continue prejudicial acts in future. ' as the question of construction of expression 'engaging' in clause (iii) of sub-section (1) of section 3 of the act was neither raised, nor argued, with respect, all the observations of the division bench are clearly obiter. ' 6. in our judgment, the observations made by the division bench in shashikala rane's case 1987 cri lj 1787, apart from being obiter are clearly erroneous.pendse, j.1. this petition was filed by a friend of the detenu to challenge order dated february 17, 1992 passed by the secretary (preventive detention) to the government of maharashtra, home department, in exercise of powers conferred under sub-section (1) of section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as the 'act') with a view to prevent the detenu from transporting smuggled goods. the petition was heard by division bench and judgment dated september 4, 1992 various contentions raised on behalf of the detenu were turned down and the petition was dismissed. the division bench noticed that the decision of division bench of this high court in the case of smt. shashikala rane v. union of india reported in 1987 cri lj 1787 required reconsideration, as the observations made by the division bench run contrary to the decision of another division bench in the case of shahul hamid ismail shahbendray patel v. r. d. pradhan reported in : (1978)80bomlr440 . the division bench, therefore, referred the papers to the learned chief justice to consider constitution of a larger bench to examine the correctness of the decision in the case of smt. shashikala rane v. union of india, reported in 1987 criminal law journal 1787. the learned chief justice directed the papers and proceedings to be placed before this bench. 2. as the petition filed by the detenu to challenge order of detention has already ended in dismissal, it is not necessary to set out the facts which gave rise to passing of order of detention. to appreciate the question which demands consideration by larger bench, we have formulated the following question with the assistance of the counsel : 'whether expression 'engaging' in section 3(1)(iii) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 requires commission of more than one act of transporting or concealing or keeping smuggled goods ?' the division bench in the case of shashikala rane 1987 cri lj 1787 observed that the expression 'engaging' has been introduced in section 3(1)(iii) to mean a person habitually occupied or employed in transporting or concealing or keeping smuggled goods. it was further observed that the clause would not embrace within its purview a person who indulged in a stray case of transporting or concealing or keeping smuggled goods, but only a person who consistently employed or occupied himself in transporting or concealing or keeping smuggled goods. the reference to the larger bench became necessary as repeated challenges were levelled against the order of detention on the ground that the detenus were engaged in a solitary or a stray incident and consequently the orders of detention were not sustainable. 3. section 3(1) confers power upon the central government or the state government or any officer of the central government or the state government specially empowered for the purposes of this section to make an order directing detention of the person 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 prevent him from (a) smuggling goods, (b) abetting the smuggling of goods, (c) engaging in transporting or concealing or keeping smuggled goods, (d) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, and (e) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. the plain reading of section 3 makes it clear that the powers of detention are to be exercised with a view to prevent a person indulging in prejudicial activities in future and the subjective satisfaction of the detaining authority is to be reached on the basis of prejudicial acts indulged in prior to the date of issuance of the order. the power of detention is preventive in nature and not punitive. the expression 'engaging' in section 3(1)(iii) of the act is to be examined with reference to the object to be achieved by the detaining authority. it is necessary to examine the ambit of clause (iii) of sub-section (1) of section 3 of the act before reference to the decisions and the issue as to whether a solitary act is sufficient to exercise powers or series of acts done consistently are necessary before order of detention can be passed. the parliament enacted the act for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. the parliament felt that violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the state. with a view to overcome the problems created by large quantity of smuggled articles within the territory, powers are conferred to detain a person in respect of whom there is reasonable apprehension that such person would continue prejudicial acts in future. clause (iii) of sub-section (1) of section 3 refers to preventing persons from engaging in transporting or concealing or keeping smuggled goods. the legislature in its wisdom has used expression 'engaging' and it is necessary to give proper meaning to that expression. the persons who are engaged in actual transport or concealing or keeping smuggled goods can of course be detained by exercise of powers but the legislature must have realised the need that in large number of cases, the persons who have not directly undertaken transporting or concealing or keeping smuggled goods but are indirectly involved in those functions are also required to be detained. a person may engage a fleet of vehicles to transport smuggled goods and will engage employees to carry out the actual exercise of transporting. such a person may not be accused of transporting the smuggled goods and, therefore, the legislature used the expression 'engaging' in transporting goods thereby indicating that every person involved in the act of transporting either directly or indirectly can be detained when the detaining authority reaches subjective satisfaction that it is necessary to do so to prevent such person from engaging in transporting the smuggled goods. the expression 'engaging', therefore, brings in its sweep even those persons who are not directly transporting or concealing or keeping smuggled goods but are instrumental or instigating or indirectly assisting in transport, concealment or keeping of the smuggled goods. the expression 'engaging' in clause (iii) of sub-section (1) of section 3 of the act if understood in this light, then the question is as to whether the person engaged, in transporting or concealing or keeping smuggled goods should commit more than one act to warrant detention would unintentionally stand (sic) 4. in shashikala rane's case 1987 cri lj 1787(bom) the order of detention was challenged on the ground that the order did not mention the expression 'engaging' while applying clause (iii) of sub-section (1) of section 3 of the act. the contention raised before the division bench was that omission of word 'engaging' in the order must lead to invalidation of the order. the division bench accepted the plea with reference to the decision of karnataka high court in the case of r. prakash v. state of karnataka reported in 1980 cri lj 165. it was not even contended before the division bench that expression 'engaging' demands that the person must be habitually engaged or employed in transporting, concealing or keeping smuggled goods. the division bench in paragraph 10 of the judgment made the following observation : 'now in these three clauses the word 'engaged' has been introduced to mean a person habitually occupied or employed in transporting or concealing or keeping smuggled goods. the clause would not embrace within its purview a person who indulged in a stray case of transporting or concealing or keeping smuggled goods, but only a person who consistently employed or occupied himself in transporting or concealing or keeping smuggled goods. it is only such person who engaged himself in transporting or concealing or keeping smuggled goods who would fall within the four corners of clause (iii) of sub-section (1) of section 3 of the cofeposa act.' as the question of construction of expression 'engaging' in clause (iii) of sub-section (1) of section 3 of the act was neither raised, nor argued, with respect, all the observations of the division bench are clearly obiter. the division bench referred to the decision of karnataka high to draw support to the conclusion but the decision of the karnataka high court nowhere lays down that only a person who consistently employed or occupied himself in transporting or concealing or keeping smuggled goods would fall within four corners of clause (iii) of sub-section (1) of section 3 of the act. the only similarity between the contention urged before the karnataka high court and before the division bench was that in both the cases the order of detention did not refer to the expression 'engaging'. after close examination of the decision of karnataka high court, we find that karnataka high court did not examine the ambit of the expression 'engaging' in clause (iii) of sub-section (1) of section 3 of the act. 5. a division bench of this court in the judgment reported in 1979 cri lj, 719 shahul hamid v. r. d. pradhan examined the question whether an isolated or a solitary incident was enough to reach subjective satisfaction contemplated by sub-section (1) of section 3 of the act. the division bench observed that there are categories of cases where only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. the supreme court in the decision reported in : air1982sc1165 mrs. saraswathi seshagiri v. state of kerala observed that a single solitary act attributed to a person is sufficient to warrant an inference that he would repeat his activity in future also. the past act of the person depending on the nature of the act and attendant circumstances might be an index of his future conduct. the view was reiterated in the decision of the supreme court in the case of abdul sathar ibrahim manik v. union of india reported in : 1991crilj3291 where it was observed (para 6) : 'it is again a question of satisfaction of the detaining authority on the basis of the material placed before it. even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. the authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling.' 6. in our judgment, the observations made by the division bench in shashikala rane's case 1987 cri lj 1787, apart from being obiter are clearly erroneous. the expression 'engaging' in clause (iii) of sub-section (1) of section 3 of the act has no relation to the number of prejudicial activities indulged in by the detenu and it is far cry to suggest that unless the person is consistently employed or occupied in transporting or concealing or keeping smuggled goods, the power under clause (iii) cannot be exercised. the expression 'engaging' in clause (iii) does not refer to the number of prejudicial activities indulged in by the detenu but only brings into the net even those persons who are not directly transporting, keeping or concealing the smuggled goods but are indirectly involved in those activities. even otherwise, it is not possible to subscribe to the view that the person must transport, keep or conceal smuggled goods habitually or consistently to invoke the provisions of clause (iii) of sub-section (1) of section 3 of the act. in our judgment, the shashikala rane's case in paragraphs 10 and 12 and which are quoted hereinabove are incorrect and the decision of the division bench to that extent stands overruled. 7. the question framed and set out hereinabove is answered in the negative. 8. ordered accordingly.