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2005 Supreme(Bom) 385
IN THE HIGH COURT OF BOMBAY
Rajesh Vashdev Adnani
Versus
State of Maharashtra
Decided on : March 18, 2005
Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1)(i) and (iii) - Detention under - Whether a case of non use of judicious mind - Order passed under Section 3(1)(i) and 3(1)(iii) to prevent detenu from smuggling goods in future and another preventing him from engaging in transporting or concealing smuggled goods in future. - Held, as the order issued under two heads but charge is restricted to one head can it be held that there was no sufficient material with Detaining Authority to justify the order in respect of other head and whether in such case the detention will fall under both heads due to non-application of mind. Section 5-A indicates that in case order is made under different heads it will be deemed to be issued under different heads separately and grounds for each head given separately. Where heads and grounds have been given separately, it is difficult to accept that the order issued on different heads/grounds if found defective in respect of one of the heads then it would come in relation to all the heads. Case law on the subject does not lead to such a proposition. The reply filed in this case by authority clearly discloses that there was sufficient material with the authority to arrive at the satisfaction to issue the order in relation to smuggling of goods under Section 3(1)(i) of the Act.
Customs Act, 1962 - Section 108 - Detention order - Non application of judicious mind - Order passed under Section 3(1)(i) and 3(1)(iii) to prevent detenu from smuggling goods in future and another to prevent him from engaging in transporting or concealing smuggled goods in future. - Held, as the order issued under two heads but charge is restricted to one head can it be said that there was sufficient shortage of material with Detaining Authority to justify the order in respect of other head and whether in such case the detention will fall under both heads due to non-application of mind. Section 5-A states of order is made under different heads it will be deemed to be issued under different heads separately and grounds for each head also been given separately. Heads and grounds have been given separately, it cannot be accepted that the order issued on different heads/grounds if found defective in respect of one of the heads than it would fall in relation to all the heads. Case law on the subject does not lead to such a proposition. The reply filed in this case by authority clearly discloses that there was sufficient material with the authority to arrive at the satisfaction to issue the order in relation to smuggling of goods under Section 3(1)(i) of the Act.
R. M. S. KHANDEPARKAR, J.
( 1 ) HEARD. Perused the records. The petitioner challenges the order of detention dated 3-11-2004 issued by the respondent No. 2 against Vashdev Gobindram Adnani, the father of the petitioner herein, under section 3 (1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974, hereinafter called as "the cofeposa".
( 2 ) THE facts relevant to be noted are that on 20-8-2004, on the basis of the intelligence report, the detenu on being intercepted by the officers of the DRI after he had passed through the customs area to board the flight to Singapore, foreign currency of USD 81000. 00, Euro 7600. 00 was seized from the detenu along with 366. 00 Singapore Dollars, totally equivalent to Indian currency of Rs. 40,08,244. 50 ps. The same was seized under panchnama under the provisions of the CUSTOMS ACT, 1962 and in the statement recorded under section 108 of the Customs Act, the detenu claimed that the seized currency was brought by him from Singapore after necessary declaration and the same was being carried back to Singapore. The impugned order of detention came to be passed on 3-11-2004 and it was actually executed by arrest and detention of the detenu on 2-12-2004.
( 3 ) IT is the case of the petitioner that the impugned order of detention has been based on two heads of detention as available under section 3 (1) (i) and (iii) of the COFEPOSA. While Clause (i) relates to preventing the detenu from smuggling goods in future, the Clause (iii) relates to preventing the detenu from engaging in transporting or concealing or keeping smuggled goods in future. It is the case of the petitioner that the records before the Detaining authority nowhere disclosed any material which could reveal that the detenu was engaged in transporting or concealing or keeping smuggled goods and therefore there was no occasion for the Detaining Authority to get herself subjectively satisfied about the need for issuance of the detention order in terms of section 3 (l) (iii) of COFEPOSA. Since the impugned order is a composite order passed under section 3 (1) (i) and (iii) and as the materials on record did not disclose any justification for being subjectively satisfied about the need for issuance of the order in terms of section 3 (l) (iii), the entire order discloses non -application of mind by the Detaining Authority and therefore the entire order is liable to be quashed as bad in law. On the other hand, it is the case of the respondents that the statement of Navin Tanna reveal that the detenu had contacted him and had acquired the smuggled currency and the same currency was kept by the detenu with his servant and further carried with him while trying to go abroad and therefore the same discloses the activities of the detenu which reveal that he was engaged in the activity of transporting and concealing and keeping foreign currency which in turn discloses smuggling within the meaning of the said expression under the cofeposa and therefore no fault can be found with the impugned order of detention, besides, merely because the order is bad on one head, it would not render the order on another head to be bad in law.
( 4 ) WHILE assailing the impugned order of detention, the learned Advocate for the petitioner submitted that the impugned order of detention has been based on two heads, one being for preventing the detenu from smuggling goods in future and another being to prevent him from engaging in transporting or concealing or keeping smuggled goods and since the grounds of detention apparently reveal total non-application of mind in relation to requirement for issuance of the order of detention against the detenu to prevent him from engaging in transporting or concealing or keeping smuggled goods in the absence of any material being placed on record before the Detaining authority disclosing the involvement of the detenu in such activities, the entire order of detention is liable to be declare
