Abubakar Suleman vs The State of Maharashtra and Others

A.S. Oka, J.—Heard the learned counsel appearing for the Petitioner and the learned APP for the Respondents. By this Petition under Article 226 of the Constitution of India, the Petitioner, a friend of the Detenue, is seeking a writ of habeas corpus for quashing and setting aside the order of detention dated 4th October, 2011 passed by the detaining authority in exercise of powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 thereinafter referred to as "the COFEPOSA Act"). The order of detention has been passed with a view to prevent the detenu in future from indulging any smuggling of goods. It is not in dispute that the detaining authority has invoked Clause (i) of Sub-section (1) of Section 3 of the COFEPOSA Act.

Learned counsel appearing for the Petitioner amongst other grounds has invited our attention to the Ground Nos. 8 and 9 in the Petition. Her contention is that bail was granted to the detenue on 11th November, 2010 and passport of the detenu was retained by the Sponsoring Authority. The learned counsel pointed out that the order granting bail was placed before the detaining authority which forms part of compilation of the documents supplied to the detenue. The learned counsel submitted that the detaining authority has not considered the vital aspect that the detenue''s passport was retained by the Sponsoring Authority. Learned counsel invited our attention to the affidavit-in-reply of the Sponsoring Authority as well as the affidavit-in-reply of the detaining authority which show that the said aspect was not considered by the detaining authority. Learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, in support of her contentions. The learned APP opposed the Petition and supported the impugned order of detention. The learned APP relying upon a decision of the Apex court in the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, submitted that merely because the passport was in the custody of the sponsoring authority and the said fact was not considered by the detaining authority, the subjective satisfaction will not be vitiated.

We have carefully considered the submissions. We have perused the Grounds 8 and 9 of the Petition. The specific case made out is that from the date on which the bail was granted to the Petitioner, the sponsoring authority retained the passport of the detenue. We have perused the affidavit of Ravindra Kumar Das, Deputy Commissioner of Customs (COFEPOSA CELL), C.S.I. Airport, Mumbai, filed on behalf of the sponsoring authority. While dealing with the Grounds 8 and 9 of the Petition, he has merely stated that for the said grounds, the reply of the detaining authority is required to be considered.

Before going to the affidavit of the detaining authority, it must be noted here that in the order granting bail passed by the learned Additional Metropolitan Magistrate on 11th October, 2010 which is a part of compilation supplied to the detenue along with the grounds specifically states that the passport shall be retained with the customs department (sponsoring authority). The learned APP did not dispute that in the grounds supplied to the detenue, there is no reference to the fact that the passport has been retained by the sponsoring authority. Now we turn to the affidavit of the detaining authority. While dealing with the Grounds 8 and 9 of the Petition, the detaining authority has not stated that the fact that the passport of the detenue was with the customs department even on the date of passing of the order of detention was considered by her.

At this stage, we may refer to a decision of the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, . In Paragraphs 31 to 34 of the said decision, the Apex Court held thus:-

During the course of the hearing, the learned counsel appearing for the State submits that mere retention of the passport of the detenu will not be enough as the preventive detention order has been passed so as to prevent him from abetting the smuggling of goods by staying in the country. This was argued before the High Court. The High Court accepted this as a satisfactory answer to justify the passing of a preventive detention order. In the counter-affidavit filed on behalf of Respondents 1 and 3 in Para 3 it is stated:

It is accepted by the detenu himself in the representation that he cannot even survive in India. Therefore for the survival, till he goes out of this country, there is all likelihood for him to indulge in such activities indirectly and illegally without the passport and can also abet in such activities. Hence, the averments made in these grounds are unsustainable and untenable and the detention order passed in valid in law.

In our view, if that be the position, the order of preventive detention could have been passed u/s 3(1)(ii) of COFEPOSA, as it authorises the State Government to pass a preventive detention order to prevent him from abetting smuggling of goods. The argument advanced by the respondents is devoid of any logic.

In the present case, the detention order was passed u/s 3(1)(i) of COFEPOSA. The Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. As observed by this Court in Rajesh Gulati case, that the contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation.

The counsel appearing for the State relied on the observations made by this Court in Abdul Sathar Ibrahim Manik v. Union of India, with particular reference to para 4 of the judgment. A careful perusal of the aforesaid paragraph reveals that the Court did not answer the question of the passport being impounded. In the said case, the detention order was based on possession of fifty gold biscuits of foreign origin being found in person of the detenu. It was also found that the detenu was a part of a large international smuggling ring and therefore the Court sustained the order of detention passed by the detaining authority. This Court did not go into the issue as to whether the impounding of the passport of the detenu was enough to curb the potentiality of smuggling and to render the order of preventive detention unjustified.

The other case on which reliance was placed by the learned counsel appearing for the State was Sitthi Zuraina Begum v. Union of India. In our view, the findings and conclusions reached in that case would not assist contention of the respondents, as the Court held in that case that the impounding of the passport of the detenu effectively foreclosed the chances of the detenu engaging in smuggling activities in the future.

(Underlines supplied)

As pointed out earlier, the detention is on the ground incorporated in Clause (i) of Sub-section (1) of Section 3 of the COFEPOSA Act which empowers the detaining authority to detain a person with a view to prevent him in future from smuggling the goods. No other clauses including clause (ii) for preventing the detenue from abetting smuggling of goods has been invoked. As far as reliance placed on the decision of the Apex Court in the case of Abdul Sathar (supra) is concerned, we find that the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, has dealt with the precise argument. It is observed that in the said case of Abdul Sathar (supra), the Apex Court did not go into the issue as to whether impounding of the passport of the detenue was enough to curb potentiality of smuggling activities and rendering the order of preventive detention unjustified.

As the order of detention was purportedly passed for preventing the detenue from smuggling activities, the fact that admittedly the passport of the detenu was retained by the sponsoring authority and the fact that the passport was not with the detenue were very a vital fact inasmuch as it may have influenced the subjective satisfaction of the detaining authority one way or the other. Therefore, in view of the law laid down by the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, , the subjective satisfaction of the detaining authority stands vitiated in view of the fact that only Clause (i) of Sub-section (1) of Section 3 of the COFEPOSA Act has been invoked. Hence, only on the aforesaid ground, the Petition must succeed and we pass the following order:

ORDER:

The Rule is made absolute in terms of prayer clause (a) which reads thus:

(a) That this Hon''ble Court be pleased to issue a writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention bearing No. PS A-1211/CR7/SPL-3(A) dated 04.10.2012 and be pleased to direct that the Detenu Baliyavalpp Raheem Mohammed Nizar be set at liberty.