Abubakar vs Government of Karnataka

Manjula Chellur, J

The Petitioner in this case is the brother of the detenu-Abdul Khadar Kunhali Palsthadka. By order dated 16.09.2010 in HD 16 SCF 2010 by the second Respondent, the detenu is retained in detention.

According to the Petitioner, the detention order is erroneous and illegal, as the same is without application of mind on the part of the second Respondent. The detaining authority is entitled to exercise powers to pass such detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act) if he is satisfied that the materials placed before him require such detention, but: in the present case there is no application of mind in passing the said order. The very words used in the order referred to below would indicate that there is no application of mind, i.e. "with a view to preventing the detenu from acting in any mariner from, smuggling of Indian Currency Notes". In the absence of such grounds, the said order is beyond the purview of the COFEPOSA Act, is the contention of the petition.

it is further contended that the detention order mentioning "acting in any manner" cannot form an appendage when the provisions of 3(1)(i) to 3(1)(v) of the COFEPOSA Act, are invoked. Such words are relatable only to an order of detention passed with reference to conservation or augmentation of Foreign Exchange. As the facts of present case do not complain viola'' ion of provision of FEMA, referring such words under COFEPOSA Act does not arise. Hence the order of detention is bad, is the challenge made by the Petitioner.

According to the Petitioner, the detaining authority relied upon 86 documents and the particulars referred at para 9 and 10 reveal the main grounds of detention being smuggling of Indian Currency. Therefore, the order of detention is totally confusing and the detenu is left confused. Hence, it is bad in law. The appropriate words are not used in the detention order to import correct meaning of the order passed so as to make the detenu understand, for what purpose exactly he is detained by the concerned authority.

Another ground raised by the Petitioner''s counsel is, if the order of detention is not in consonance with the COFEPOSA Act, it would result in being improper communication of the order and such improper communication would constitute violation of Article 22(5) of the Constitution. Hence the order is bad. There is variance between the satisfaction recorded in the order of detention and subjective satisfaction disclosed in the grounds of detention.

When once the passport is in the custody of the sponsoring authority, detaining authority ought to have understood that without a passport, question of detenu indulging in smuggling activities would not arise. Therefore the contention on the ground that he is satisfied that the detenu has high propensity and potentiality to engage in such activities in future also, would be without any satisfaction being recorded for the said opinion.

The entire material would reveal that the sponsoring authority had put up the grounds of detention, which were adopted by the detaining authority. Therefore it is per se malafide and ab initio null and void. The time prescribed for sending a report in respect of the impugned order of detention to the Central Government by the State Government is also not followed. Hence the order of detent ion is vitiated.

There is no indication that the representation sent by the detenu was considered uninfluenced by any opinion of the Advisory Board, independently by the authority. The detenu made representation to the Advisory Board in which he has specifically made a prayer "that his representation be considered by the detaining authority along with the report of the Advisory Board and to direct release of the Petitioner, as there is no sufficient cause for his continued detention". But the same is not considered by the Government of Karnataka. before passing the order of confirmation of the order of detention. Therefore the order of detention suffers from non-compliance of the provisions of the order. With these submissions the above petition is filed.

As against this, the Government has come out with the following objection statement. According to them the writ petition itself is not maintainable either in law or on facts. It is contended that on the specific information received by the Directorate of Revenue Intelligence, that the detenu was carrying Indian currency in excess of the permitted limits contravening provisions of Customs Act, 1962, Customs Authorities checked baggage from the said Airlines authorities. After completion of immigration formalities and upon identification of the same, the detenu was also enquired thoroughly. One of the baggage described as "green coloured president plastic suitcase" with the plastic cover was removed. The officers of Customs found Indian currency notes of Rs. 500/- and Rs. 1.000/ denomination concealed in the top and bottom portion of the suitcase totally amounting to Rs. 49,45.500/-. On enquiry, the detenu was not able to account for the said amount satisfactorily and did not produce any valid documents. The said illegal act of smuggling is in contravention of Customs Act, 1962 and the said currency notes were seized under a mahazar.

On further enquiry, it was revealed that lie is a resident of Dubai, at address No. 12, near Itta Salat. Near Rola Road, Sharjah, alongwith his wife and children. His native place is Bullerikatate Road. Poonach Gram. Palasthadka. Puttur 574 289. He knows English and Kannada and he joined High Standard Electrical Company, Dubai, as a Labour Supervisor. According to him (detenu) one Shamshuddin gave Indian currency at the Star Plaza Hotel situated at Kalisipalyam. Bangalore, and he was directed to deliver the currency at Dubai to one Pawaaz. Therefore according to the authorities the detenu knowingly got involved in the attempted smuggling of Indian Currency Notes, out of India, subjecting the economic and national security of the country in peril. It is detrimental to the public at large.

None of the grounds raised by the Petitioner questioning the order of detention are correct. The provisions of Section 3(1)(i) of the Act, has to be read harmoniously with Section 2(39) of the Customs Act visa-vis Section 2(e) of the Act. The words smuggling has been defined to mean "in relation to any goods means any act. or omission which will render such goods liable to confiscation u/s 111 or Section 113". As the definition of Section 2(22) of Customs Act includes ''currency'' as well, none of the grounds raised by the Petitioner are sustainable. There is no improper communication of the order of detention and there is subjective satisfaction of the Authority passing the detention order, only after application of mind to the facts available. Such order is made as the detention of the detenu was essential to prevent detenu from indulging in any manner, prejudicial to the conservation of foreign exchange and with a view to prevent the detenu from smuggling of Indian currency notes. There is no variation with regard to the detention order passed and the grounds of detention annexed to the detention order. The passport was not seized by the Sponsoring Authority and the same was returned to the detenu after taking xerox copy of the same. Therefore the grounds raised by the detenu deserve to be rejected. The past activity of the detenu was narrated by the detenu himself in the statement given before the Customs Authority and the same was relevant for the purpose of passing preventive detention on the detenu. Therefore it is within the meaning of the Act and in accordance with the stipulated period as well. As the date of order is 16.9.2010, the same was forwarded to the Central Government on 20.9.2010. The Detaining Authority has taken decision without being influenced by the findings of the Screening Committee. As there is total subjective satisfaction on the part of the detaining authority, none of the contentions raised could be looked into, is the contention raised by the State. With these submissions they have sought for dismissal of the petition.

According to the learned Counsel for the Petitioner if the detention order is read in detail, it would definitely indicate that there is no proper application of mind to the facts on record. The detention order lacks subjective satisfaction of the detaining authority. As against the arguments of the learned Counsel for the Petitioner, the Government Advocate contends, even a solitary incident, which has been detected, can speak volumes about the potentiality of the detenu. Therefore, mere absence of antecedents will not lead to quashing of the detention order. He also contends that in the present case, the passport of the detenu was returned to the detenu after keeping the xerox copy.

The learned Government Advocate has relied upon the decision of Hon''ble Apex Court, reported in Abdul Sathar Ibrahim Manik Vs. Union of India and others, He also placed reliance on the decision reported in Raj Kumar Singh Vs. State of Bihar and Others, and the decision is reported in AIR 1986 687 Prakash Chandra Mehia v. Commissioner and Secretary, Government of Kerala and Ors.

It is well settled that whenever detention order is passed, it should not only indicate that the detaining authority has taken into consideration all the grounds made in the representation and other procedural aspects, but it should also be in conformity with the words in the Act, otherwise the order of detention gees vitiated. Strict compliance with the letter of the rule Is the essence of the matter. Therefore the words U3ed in the order of detention must refer to the activities complained of and if there is any variation between the activities complained and the words used in the order of detention, it would not be in conformity with the provisions of the Act, under which such order of detention came to be passed. The order of detention should reflect precise grounds for detaining the detenu and the Detaining Authority is expected to use the words necessary to be used and is not expected to use the words either mechanically or loosely. If the order of detention is not in consonance with the necessary words required to be used, it would only lead to wrong interpretation, whereupon the detenu can always come out with a defence that he was unable to make a proper representation, as he was not able to understand the actual input of the detention order.

Reference is made to the following citations:

Dr. Ram Manohar Lohia Vs. State of Bihar and Others,

Kishori Konia v. State of West Bengal, 1972 SC 1749

Akshoy Konai Vs. State of West Bengal,

R. Prakash v. State of Karnataka, 1980 Cri.L.J. 165

Annexure-A is the order of detention dated 16.9.2010, which reads as under:

ORDER

Whereas. I, K.M. Shivkumar. IAS. Principal Secretary to Government, Home Department. Government of Karnataka specially empowered u/s 3(1) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) am satisfied that, with a view to preventing Shri Abdul Khadar Kunhali Palsthadka from acting in any manner from smuggling of Indian Currency notes, it is necessary to make the following order.

Now, therefore, in exercise of the powers conferred u/s 3(1) and Section 3(1)(i) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974). I hereby direct that said Shri Abdul Khadar Kunhali Palsthadka be detained and kept in custody in Central Prison, Bangalore, on the grounds annexed herewith.

Reading of the above order refers to the smuggling of Indian Currency arid there is no reference to conservation or augmentation of foreign exchange. According to the Respondent as contended in para 8, of the statement, of objections, the detaining authority has applied its mind to the facts wherein the detention of the detenu was essential to prevent the detenu from indulging in any manner prejudicial to the conservation of foreign exchange and with a view to prevent the detenu from smuggling of Indian currency. Therefore. according to them there is no variation with regard to the detention order passed on the ground of non-application of mind without proper words being used.

Section 3(1) of the Act reads as under:

Power to make orders detaining certain persons:(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary. to that Government. specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may. if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with, a view to preventing" him from-

I. smuggling goods, or

Section 3(1) of the COFEPOSA Act has two parts, the first part refers to conservation and augmentation of foreign exchange and the second one is prevention of smuggling. The order of detention ought to have used the words with reference to the second part pertaining to prevention of smuggling. Unfortunately in the present order, the words to be used for the first portion of the section regarding conservation and augmentation of foreign exchange was used to the second portion. This would indicate that the Detaining Authority did not even understand what Section 3(1) contemplates and how it refers to two different acts, one pertains to an act which is prejudicial to the conservation and augmentation of foreign exchange and the second one with reference to preventing a person from smuggling goods, etc. According to the authorities the detenu was smuggling Indian currency. Therefore, it has to be an order of detention preventing him from smuggling Indian currency and it cannot be an order preventing him from acting in any manner from smuggling of Indian currency. This is nothing but non-application of mind, while passing the order of detention. Therefore, the order of detention gets vitiated.

In the light of the above discussion and reasoning, it is very clear that the Detaining Authority did not even understand the relevancy of the words to be used while passing the present order of detention in order to prevent the detenu from indulging in smuggling activities. Strict compliance of the procedural aspects is a must having regard to the fact that order of detention would interfere with the liberty of the detenu. Several stages are envisaged only with a view to afford an opportunity to the detenu to make representations to different authorities, including Authority which passes detention order. Therefore all the precautions are indicated having regard to the fact that the liberty of a person is at stake. Therefore the procedure has to be complied strictly and any latches or mechanical way of dealing with the procedure is deprecated.

In view of the above discussion and reasoning. we are of the opinion the order of detention in No HD 16 SCF 2010 dated 16.09.2010 is vitiated. The said order of detention is held as void and the detenu Sri Abdul Khadar Kunhall Palsthadka, deserves to be set at liberty forthwith. Therefore, the writ of Habeas Corpus is issued declaring the detention of Sri Abdul Khadar Kunhall Palsthadka. as illegal and void.

Accordingly, the petition is allowed.

Office is directed to intimate the concerned authority to release the detenu forthwith.