Massa Singh vs State of Punjab

I.S. Tiwana, J. (Oral)

The petitioner assails his detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in pursuance of order dated 14th August, 1987 (Annexure P1). Though the challenge to this order is on a wide variety of grounds yet after hearing the learned counsel for the parties at some length I am satisfied that the petition deserves to be allowed on the very first ground that the order suffers from nonapplication of mind. The operative part of this orders reads as follows :

"Whereas the President of India is satisfied that you Massa Singh s/o Shri Bhan Singh r/o Bharopal PS Gharinda District Amritsar have been indulging in (and) dealing in smuggled goods and therefore it is necessary to make an order directing that you, Messa Singh, be detained with a view to preventing you from indulging in the abovementioned prejudicial activities in future.

Now, therefore, in exercise of the powers conferred by subsection (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Parliament Act No. 52 of 1974) the President of India is pleased to direct that you Massa Singh be detained."

This order is authenticated by the Under Secretary (Home) as envisaged by Article 166 of the Constitution of India. As is apparent from this order, the subjective satisfaction of the detaining authority was to the effect that with a view to preventing the petitioner from "indulging (in) and dealing in smuggled goods" it was necessary to detain him. Now a bare reading of the relevant provision, i.e. section 3 (1) of the Act indicates that the smuggling activity has many facets as enumerated in clauses (i) to (v) of this subsection. It reads as follows :

"3. (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 a 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,

(ii) abetting the smuggling of goods, or,

(iii) engaging in transporting or concealing, or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained."

It is the conceded case of the State authorities that the grounds of detention (Annexure P2) which were supplied to the petitioner, and on which the impugned order P1 was founded, are covered by clauses (iii) and (iv) of this subsection. Original record pertaining to the case has been produced before me and it is apparent therefrom that on 7th August, 1987, the detaining authority, i.e., the Additional Chief Secretary, recorded his satisfaction in the following manner :

"After considering the facts on the record and the examination thereof by the police and the Law Department. I am satisfied that it is a fit case to detain Shri Massa Singh under the provisions of COFEPOSA Act, 1974, with a view to preventing him from indulging in nefarious activities of smuggling. Issue orders, accordingly."

It is in pursuance of this order that order P1 was prepared and authenticated by the Under Secretary (Home). It, is thus, firmly established that a reference to subsection (1) of the section 3 of the Act, made in order P1, is the doing of the officer who drafted and prepared annexure P1. Otherwise, the Additional Chief Secretary had not indicated anywhere that the petitioner had to be detained under subsection (1) of section 3, much less under any of the clauses (i) to (v) of this subsection. It is not available from the record anywhere that the learned Additional Cheif Secretary was aware as to which of the proposed grounds of detention fell under which of the clauses of this subsection. No great argument is needed to hold that clauses (iii) and (iv) are mutually exclusive of each other and are materially different from each other. Under clause (iv) of this subsection the detention order could be made only to prevent the petitioner from "dealing" in smuggled goods. In somewhat similar situation, a Division Bench of the Karnataka High Court while dealing with a detention matter under this very subsection of the Act in R. Prakash v. State of Karnatka, 1980 Cr. L.J. expressed itself in the following manner :

"This takes us to the third contention urged for the petitioner that the order of detention was not in conformity with cl. (iii) of subsection (1). The order just provides that "with a view to preventing him from keeping smuggled goods". It was urged that the Detaining Authority has not stated that the detention was necessary with a view to preventing the detenu from engaging in keeping smuggled goods. It seems to us that there is a good deal of substance in this contention. Clause (iii) could be invoked only to prevent a person from engaging in transporting or concealing or keeping smuggled goods. The Detaining Authority must be satisfied that it is necessary to prevent a person from engaging in such objectionable activities. The meaning of the word "engage" as found in the Concise Oxford Dictionary is "hold fast (attention), employ busily." There is thus a lot of difference between the activities of just "keeping" and "engage in keeping" and the Detaining Authority obviously has not applied its mind. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, the Supreme Court observed that where a man can be deprived of his liberty under a rule by the simple process of the making of a detention order, he could not only be so deprived of if the order is in terms of the rules and strict compliance with the letter of the rule is the essence of the matter, and if there is any doubt regarding the observance of the rules, that doubt must be resolved in favour of the detenu. The order of detention which has the effect of depriving the liberty of a citizen without any trial must be construed very strictly and the requirement of the law has to be scrupulously observed."

At this stage, Mr. Saraon, the learned Assistant Advocate General, appearing for the respondents requested for time to file an affidavit of the Additional Chief Secretary to specify that he was alive to the situation as to which of the proposed grounds of detention were covered by which of the clause of subsection (1) yet I do not feel satisfied that the same would in any way improve the matter in view of the following observations of their Lordships of the Supreme Court in Commr. of Police Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 :

"................We are clear that public order, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what we meant, or what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Their Lordships of the Karnataka High Court, in this regard, observed that "we must, therefore, be guided by the language of the order and not by the intendment of the Detaining Authority."

In the light of the discussion above, I find it unnecessary to go into the other grounds taken on behalf of the petitioner to assail the impugned order.

For the reasons recorded earlier, this petition is allowed and order annexure P 1 is set aside.