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Judgment
R.A. Jahagirdar, J.—One Sinnalal Jain, son of Kesharimal Jain, has been detained by an order of detention passed on 24th of May 1988 by the Government of Maharashtra u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act". The order of detention states that it has been passed with a view to preventing the said detenu "from carrying smuggled goods". This order of detention is now challenged in this petition by the detenu''s brother, one Lalitkumar Kesharimal Jain.
Mr. Patel, the learned Advocate appearing in support of the petition, has given us the necessary facts of this case and he wanted to assail the validity of the order of detention on several grounds. However, it has not been necessary for us to examine all the arguments because on the basis of the argument based upon the correct interpretation of Clause (iii) of Section 3(1) of the COFEPOSA Act, the petition must succeed.
The detenu was found on 30th of October 1987 in possession of a cloth bag which contained gold biscuits worth about Rs. 9,00,000/-. The grounds of detention do not suggest that there was any material before the detaining authority that the detenu had indulged in similar activities in the past. Mr. Patel has pointed out that the detaining authority has taken action u/s 3(1)(iii) of the COFEPOSA Act without forming the subjective satisfaction that the detenu was likely to engage in transporting smuggled goods. If he had come to that subjective satisfaction, obviously he would have then passed an order of detention with a view to preventing the detenu from engaging in transporting smuggled goods. The order of detention specifically states that the detenu has been detained with a view to preventing him from carrying smuggled goods.
Ignoring for the present Mr. Patel''s argument that carrying and transporting are not the same thing, we must notice one fatal defect in the order of detention. Section 3(1)(iii) of the COFEPOSA Act enables the detaining authority to pass an order of detention with a view to preventing the detenu from "engaging in transporting" smuggled goods. There is a difference between transporting smuggled goods and engaging in transporting smuggled goods. This difference has been brought out clearly in the Judgment of a Division Bench of this Court in Shashikala Krishnarao Rane v. Union of India and Ors. 1987 Criminal Law Journal 1987. It has been pointed out in the said judgment that an activity which is contemplated in Clause (iii) of Section 3(1) does not include a stray case of transporting but an occupation in transporting smuggled goods. It is only a person who was likely to engage himself in transporting smuggled goods who could be detained u/s 3(1)(iii) of the COFEPOSA Act.
A similar view has been taken by another Division Bench of this Court in Criminal Writ Petition No. 50 of 1989 Smt. Naira Mohammed Farook v. The State of Maharashtra and Ors. decided on 26th of June 1989 by S.K. Desai and V.V. Kamat, JJ.
From the language of the order of detention, it is clear to us that the precondition of the subjective satisfaction that the detenu was likely to engage himself in transporting smuggled goods is non-existent in this case. If this is so, then, obviously, an order of detention u/s 3(1)(iii) could not have been passed. Indeed, the order has not been passed u/s 3(1)(iii) of the COFEPOSA Act because the order says that the detenu was being detained with a view to preventing him from carrying smuggled goods. It does not say that the order has been passed with a view to preventing him from engaging in transporting smuggled goods.
On the above ground, the order of detention is liable to be set aside, as being the one not warranted by the provisions of the COFEPOSA Act. However, we should not be understood to say that a single act of transporting cannot in any circumstance give rise to a reasonable prognosis in the mind of the detaining authority that the person concerned is not likely to engage in transporting smuggled goods. In other words, even if a person is apprehended while transporting smuggled goods on one occasion, it is permissible, if the facts and circumstances so warrant, for the detaining authority to come to the conclusion that such a person is likely to engage himself in transporting smuggled goods. In that case, a valid order of detention in conformity with the provisions contained in Section 3(1)(iii) of the COFEPOSA Act can be passed.
In the result, the petition succeeds. Rule is made absolute in terms of prayer Clauses (a) and (b) of the petition.