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1999 Supreme(Cal) 331
High Court Of Calcutta
NURE ALAM CHOWDHURY, DEBIPRASAD SENGUPTA
MOHAMMAD JAMIL - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 1719 (W) Of 1999
Decided On : 06/28/1999
ANJAN MUKHERJI, DEBABRATA ACHARYA, DEBABRATA ROY CHOWDHURY, FIROZE AHMED, R.CHAUDHARY
Detention for future smuggling activities is bad in law where the passport of the detenu is seized, and unexplained delay in passing a detention order or service of grounds in an unknown language without proper explanation vitiates the detention order.
Headnote:
PREVENTIVE DETENTION - Smuggling - Seizure of Passport - Delay in Passing Detention Order - Service of Grounds of Detention in Unknown Language - Validity of Detention Order.
Fact of the Case:
Petitioner was arrested for possession of Rs. 13,34,500/- without valid documents. While on bail, he was detained under Section 3(1) of COFEPOSA Act for future smuggling activities. He challenged the detention order on various grounds including seizure of passport, delay in passing the order, and service of grounds in an unknown language.
Finding of the Court:
1. Seizure of Passport: Where the passport of a detenu is seized, detention for future smuggling activities is bad in law as the detenu is sufficiently restrained from going abroad and cannot engage in smuggling. 2. Delay in Passing Detention Order: Unexplained delay of more than three months between the alleged incident and the date of detention order vitiates the order. 3. Service of Grounds in Unknown Language: Service of grounds of detention in a language not known to the detenu without proper explanation or translation violates Article 22(5) of the Constitution.
Issues: 1. Whether detention for future smuggling activities is valid when the passport of the detenu is seized? 2. Whether unexplained delay in passing a detention order vitiates the order? 3. Whether service of grounds of detention in a language not known to the detenu violates Article 22(5) of the Constitution?
Ratio Decidendi: 1. Seizure of Passport: The court held that where the passport of a detenu is seized, detention for future smuggling activities is bad in law as the detenu is sufficiently restrained from going abroad and cannot engage in smuggling. The detaining authority must properly consider this fact and apply its mind before issuing the detention order. 2. Delay in Passing Detention Order: The court held that unexplained delay of more than three months between the alleged incident and the date of detention order vitiates the order. The test of proximity is not a mere mechanical test, but the detaining authority must provide a satisfactory explanation for the delay. 3. Service of Grounds in Unknown Language: The court held that service of grounds of detention in a language not known to the detenu without proper explanation or translation violates Article 22(5) of the Constitution. The detaining authority must ensure that the grounds are explained to the detenu in a language known to him and the grounds must bear an endorsement to that effect.
Final Decision: The petition was allowed, and the detention order was quashed. The petitioner was ordered to be released forthwith unless required to be detained under any other order of a competent Court or Authority.
( 1 ) ON July, 29, 1998 the petitioner was arrested by the Custom Authority from Netaji Subhas Chandra Bose International Airport, Calcutta in connection with a case being Case No. C-924 of 1998. The allegation made against the petitioner is that a sum of Rs. 13,34,500/- (Indian Currency) was recovered from the possession of the petitioner and on demand the petitioner failed to justify the possession of the said amount by producing any valid document.
( 2 ) THE petitioner was subsequently released on bail on September 7, 1998 by this Court in connection with the aforesaid case and while granting bail a condition was imposed directing the petitioner to meet in Investigating Officer Mr. A. K. Singh at Customs House, 15, Strand Road, Calcutta thrice a week, i. e. , on every Monday, Wednesday and Friday.
( 3 ) WHILE on bail the petitioner complied with the conditions imposed by this Court. On November 6, 1998 the petitioner was detained by Sri A. K. Singh, the Investigating Officer of Customs Case No. C-924 of 1998 when the petitioner had been to the Customs House in compliance with the direction of this Court. The petitioner was served with an order of detention under Section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, bearing No. 673/71/98 CUS VIII dated November 3, 1998 issued by Sri Somnath Pal, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Section. Aggrieved thereby the petitioner has preferred this application under Article 226 of the Constitution of India seeking a Writ of Habeas Corpus.
( 4 ) THE petitioner has challenged his detention order on a number of grounds. The first point raised by Mr. Anjan Mukherjee, learned Advocate appearing for the petitioner is that immediately after the incident the passport of the petitioner was handed over to the Customs Authorities, which made it impossible for the petitioner to go abroad. In other words having seized his passport the Customs Authority made it impossible for the petitioner to indulge in any prejudicial activity.
( 5 ) IT appears from the detention order that such order was issued with a view to preventing him from smuggling of goods in future. It appears from the document annexed to the writ application at page 94 that the passport of the detenu was handed over to the Customs Authority on 29-7-98. In our considered opinion where the detention is only for the purpose of preventing the detenu from smuggling of goods in future and while in such cases the passport of the detenu is impounded, the detention would be bad inasmuch as the detenu by seizure of the passport has been sufficiently restrained from going abroad and therefore he cannot be said to be in a position to engage himself in the act of smuggling. This fact was not taken into consideration by the detaining authority, who issued the order of detention without proper application of mind.
( 6 ) IN support of his contention made above Mr. Mukherjee, learned Advocate of the petitioner has cited a judgment of Delhi High Court reported in 1989 Cri LJ 262, wherein it was held as follows (at Pp. 263 and 264 of Cri LJ) :ping with my consistent view that where detention is merely with a view to prevent the petitioner from smuggling goods and while by seizing the passport the likely prejudicial activity sufficiently stands defeated and where it is made impossible for the detenu to proceed abroad the detention order would be deemed to have been passed without proper application of mind. It would be rather punitive in nature. In the present case, I find by the seizure of passport detenu had been sufficiently prevented from indulging in the alleged activity and the order of detention in that view is vitiated. "
( 7 ) MR. Mukherjee, learned Advocate submits that after the petitioner was arrested he was granted bail by this Court on 7th September, 1998 on condition that the detenu/petitioner would meet the Investi
