2002 Supreme(SC) 863

2002(6) Supreme 37
SUPREME COURT OF INDIA
(From Delhi High Court)
Mrs. Ruma Pal & Arijit Pasayat, JJ.
Rajesh Gulati -Appellant
versus
Govt. of N.C.T. of Delhi & Anr.
-Respondents
Criminal Appeal No. 866 of 2002
(Arising out of SLP (Crl.) No. 2575 of 2002)
Decided on 29-8-2002
Counsel for the Parties :
For the Appellant : R.M. Bagai, Dr. Ajay Kumar, Ranbir Singh Yadav, Advocates.
For the Respondents : Y.P. Mahajan, S.A. Matto, S.K. Koul and D.S. Mahra, Advocates.

IMPORTANT POINT
Appellant s detention under Section 3(1) of COFEPOSA Act, 1974 was in breach of both the substantive and procedural law pertaining to preventive detention.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)-Preventive detention order dated 28.9.2001 under-Before that date appellant was under custody with his passport in connection with smuggling of cell phones under Sections 132 and 135(1)(a) of-Customs Act, 1952-Detention order passed after rejection of five Bail applications-Detention order challenged on two grounds in High Court (1) based on no material as to apprehension of being released on bail and (2) when passport was with custom authorities there was no material to believe that appellant would continue with smuggling activities on his release-Rejected-Appeal against to Supreme Court-Whether High Court was right in its approach? (No)-Case law referred-Appeal allowed.

       Held : We are of the view that the High Court erred in accepting the respondents submissions and rejecting the appellant s writ application. This Court has repeatedly held that the law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority. [See: Icchu Devi Choraria v. Union of India : AIR 1980 SC 1983; Vijay Narain Singh v. State of Bihar : AIR 1984 SC 1334, 1345; Hem Lall Bhandari v. State of Sikkim : AIR 1987 SC 762, 766; Ayya @ Ayub v. State of UP; AIR 1989 SC 364, 367] . The facts of this case show a breach of both. It cannot be over emphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3 (1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority s emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. In this case, the detaining authority s satisfaction consisted of two parts- one: that the appellant was likely to be released on bail and two: that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that "bail is normally granted in such cases". When in fact the five applications filed by the appellant for bail had been rejected by the Courts (indicating that this was not a normal case), on what material did the detaining authority conclude that there was "imminent possibility" that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the normal rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. [See: in this context Ramesh Yadav v. District Magistrate : AIR 1986 SC 315, 316 ). Assuming that by some method of prescience the detaining authority foresaw the order of bail which was granted to the appellant on his sixth application, the question still remained, would the appellant again resort to smuggling goods into the country ? It was not the detaining authority s case that the appellant was a die-hard smuggler. In fact in the impugned detention order, the detaining authority noted that :

       "Though Shri Deepak Dhembla the proprietor of M/s. B.D. Denim had denied any association in that case, yet from the statement of Shri Rajesh Gulati i.e. you it is clearly evident that Shri Dhembla was the brain behind the smuggling of mobile phones through your help and he was arranging for your ticket and other expenses for executing the process of smuggling of mobile phones in clandestine manner".

       In other words according to the detaining authority the prime mover for the smuggling activity was the proprietor of M/s. B.D. Denim. The appellant at the worst was a pawn in the hands of another. The likelihood of the appellant indulging in smuggling activities by the appellant was in any case effectively foreclosed by the retention of his passport by the customs department. The detaining authority noted that the appellant s passport was with the customs department and yet he said "but you are likely to travel clandestinely for the purpose of smuggling". Now none of the instances of smuggling by the appellant as stated in the impugned detention order describe the appellant as having travelled without a passport for the purpose of smuggling. The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the detaining authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues raised by the appellant. The appeal is accordingly allowed and the decision of the High Court is set aside. The impugned order of detention is quashed and the appellant is directed to be released forthwith. (Paras 12 to 17)