Transportation of smuggled goods is not smuggling.

Sivasubramaniam, J. : -

This writ petition has been filed for issue of a writ of habeas corpus to quash the order of detention passed by the respondent in G.O.SR.1/1317-2/88, Public (S.C.) Department, dated 12.10.1988 and to set at liberty the detenu Kunubudeen Ali Bhoy son of Ali Bhoy Abdul Ali, presently undergoing detention in Central Prison, Madras.

2. The short facts leading to the passing of the impugned order of detention are as follows: The detenu was a passenger in the Indian Airlines flight from Calcutta to Madras on 2.10.1988. He carried one Echolack briefcase and on certain information he was intercepted by the Madras Customs Officers at the exit gate. His brief case was searched and found to contain gold biscuits of foreign origin in six pouches each containing 10 gold biscuits. He stated that he is a Sri Lankan dealing in re-conditioned car, that one Abdul Kader used to frequent his shop for the purchase of reconditioned car, that he suggested to the detenu that he should remove the gold bars concealed in the toilet of Indian Airlines and deliver the same to him, that he left for Calcutta from Madras on 1.10.1988 and booked a return flight on 2.10.1988, that he boarded the plane at Calcutta and took the gold bars from the airport and that he was caught when he was coming. The detenu was arrested on 3.10.1988 and the bail application filed by him was dismissed on 10.10.1988. After further investigation, the impugned detention order was passed on 12.10.1988 under the provisions of Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing the detenu from smuggling goods.

3. The detenu himself has filed this writ petition. Even though he has raised several grounds, in affidavit filed in support of this writ petition, Mr.B.Kumar, learned counsel appearing for the petitioner confined his arguments to the following points:

1. The activity alleged against the petitioner cannot amount to smuggling within the meaning of the Act and therefore the allegation that the detenu had smuggled goods and the order of detention has been made under Sec.3(1)(i) of the Act will betray total non-application of mind;

2. The order of detention is merely to prevent the detenu from smuggling goods whereas the grounds of detention in paragraph 8 state that the detenu indulged in smuggling and transporting the above contraband gold bars; and

3. Whereas the order of detention is made on one ground and if the grounds of detention are sought to be supported on more than one ground, that itself will vitiate the detention.

4. A counter affidavit has been filed repudiating the averments made in the petitioner's affidavit.

5. While dealing with the first point, initially we felt that the definition found in Sec.2(e) of the COFEPOSA Act read with Sec.2(39) and Sec.111 of the Indian Customs Act would be an answer for the point. According to Mr.G.Krishnamoorthy, the learned Additional Public Prosecutor appearing for the respondent, the terms ‘smuggling goods’ has a very wide meaning in the light of the provisions found in the Customs Act. It is no doubt true that a reading of the abovesaid two definitions would take in all activities connected with smuggling including transporting, storing, etc. Therefore, we have to find out whether we have to confine our consideration to the specific provisions contained in the COFEPOSA Act or we can bring in the definition of “smuggling” found in the Customs Act. Even though it appears to be permissible, we find that Sec.3(1) of the Act has prescribed certain specific grounds under which alone detention orders are being passed. Sec.3(1) consists of four sub-clauses, classifying and covering the different activities in connection with the smuggled goods. Let us now have a look at Sec.3(1) of the COFEPOSA Act which reads as follows:

“Power to make orders detaining certain persons: (1) The Central Government or the State Government or any Officer of t