Mavumkoottathil Subramanian Mohandasan vs State of Maharashtra and Others

R.A. Jahagirdar, J.—At 6 a.m. on 12th of March 1985 the Customs Officers attached to the Air Intelligence Unit, Sahar Airport, Bombay, intercepted the petitioner near the exit gate. He had just arrived from Abu Dhabi, After taking a search of his belongings it was noticed that the petitioner was carrying with him gold bars and gold sovereigns bearing foreign markings and valued at the domestic market at Rs. 3,48,810. The gold was attached and the statement of the petitioner u/s 108 of the Customs Act, 1962 was recorded. On the same day he was produced before the learned Chief Metropolitan Magistrate at Bombay and ultimately he was released on bail on 11th of April 1985.

The Customs Department sent a proposal to the Government of Maharashtra to examine the possibility of detaining the petitioner with a view to preventing him from indulging in the activity of smuggling. By on order dated 27th of May 1985 and executed on 18th of June 1985 the petitioner was detained u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the "COFEPOSA Act". The grounds of detention of the same date were also furnished to the petitioner along with the order of detention. It is this order of detention which is the subject matter of challenge in this petition under Article 226 of the Constitution of India.

Mr. Gupte, the learned Advocate appearing in support of the petition has taken us through the order of detention, the grounds of detention and the other relevant documents on which the detaining authority has placed reliance. Affidavit in reply to the petition has been filed by the detaining authority and certain facts from the record have been affirmed by the Desk Officer in the Home Department of the Government of Maharashtra in his affidavit. Mr Gupte has challenged the order of detention as well as the continued detention of the petitioner on several grounds. We will deal with each of them in the order in which he has mentioned them.

In the first place Mr. Gupte has contended that the continued detention of the petitioner is rendered illegal because of the failure of the Government of Maharashtra to consider the representation of the petitioner against the order of detention. Before we appreciate the contention raised by Mr. Gupte in this regard, the following facts which emerge from the material on record and the affidavits filed in response to the petition must be stated. The representation of the petitioner is of 6th September 1985. It was sent from the jail where he had been lodged and it was received by the Government of Maharashtra on 9th of September 1985. 7th and 8th of September 1985 were holidays. On 9th of September 1985 itself the Government sent the representation to the Customs Department, which is the sponsoring authority in the instant case, for its comments. The comments were received by the Government of Maharashtra on 17th of September 1985. After the usual processing of the comments as well as the representation, which was done on 18th and 19th of September 1985, the representation was put up before the Minister of State for Home Affairs for appropriate order. The Minister rejected the re presentation of the petitioner by his order dated 20th September 1985

Mr. Gupte has criticised what he calls the cavalier and casual approach adopted by the Government of Maharashtra in first sending the petitioner''s representation to the Customs Department for its comments and also of the Customs Department in sleeping over the representation for nearly eight days. According to Mr. Gupte, every day''s delay in the consideration of the representation made by a detenu ought to be satisfactorily explained. If this is not done, then the liberty of the petitioner is in jeopardy and the continued detention of the petitioner ought to be set aside. We have given careful thought to the submissions of Mr. Gupte. However, we notice that between 6th and 9th of September 1985 there cannot be said to be any delay because the representation sent on 6th September 1985 was received by the Government of Maharashtra on 9th September 1985, the intervening two days being public holidays. We are also satisfied that the system of sending the representation received from the detenu to the sponsoring authority for its comments before any action is finally taken by the Government cannot be regarded as something undesirable. One, therefore, cannot find fault with the Government of Maharashtra in sending the petitioner''s representation to the Customs Department.

Mr. Gupte''s grievance is justified insofar as it relates to the time consumed by the representation in the Customs Department. However, if we read the affidavit of the Superintendent of Customs of the COFEPOSA Cell, it is easily noticed that at no time there was any inaction on the part of the Customs Department as to amount to dilly-dallying on the representation made by the petitioner. In his affidavit he has fully explained the circumstances under which the representation of the petitioner could not be examined till 17th September 1985 on which day the representation was transmitted back to the Government of Maharashtra. Thereafter, in our opinion, there is no delay at all. It is, therefore, not possible to accept the contention that the delay in the consideration of the representation made by the petitioner has rendered the continued detention of the petitioner invalid.

Considerable criticism has been mounted by Mr. Gupte against what he calls the abnormal delay between the date of the incident and the date of the detention order on the one hand and the date of the detention order and the date of the execution thereof on the other. We have already mentioned above that the incident itself took place on 12th of March 1985. The detention order is dated 27th of May 1985. There is thus apparently some substance in the criticism of Mr. Gupte that there is a delay of nearly 2� months between the date of the incident and the date of the issuance of the order of detention. But if we look into the affidavit filed on behalf of the detaining authority it is easily seen that after the date of the incident the proposal for considering the case of the petitioner was sent to the Screening Committee who sent their proposal to the detaining authority on or about 30th of March 1985. Immediately thereafter, namely on 9th of April 1985, the detaining authority has directed the issuance of the detention order and has also contemporaneously formulated the grounds of detention. The period between 9th of April 1985 and 27th of May 1985 has been satisfactorily explained by the affidavit filed on be half of the respondents in which it has been shown that the petitioner being a person from Kerala knowing only the language of Maiayaiam, the order of detention, the grounds of detention and the documents in support of the grounds of detention had all to be translated into Malayalam language. We are, therefore, of the opinion that it cannot be said that there is any delay between the date of the incident and the date on which the order was served up on the petitioner snapping the connection between the incident and the subjective satisfaction of the necessity of detaining him.

Between 27th of May 1985, that is the date of the order of detention, and 18th of June 1985 when the order was actually executed, the authorities could not serve the order upon the petitioner because his local address was not known to them. Since, however, there was a case pending against him, the petitioner was expected to attend the Court on 17th of June 1985, being the date of his remand. However, due to heavy rains on 17th of June 1985, the officers could not attend the Court on that day. Fortunately for them the petitioner was again present in the Court on 18th of June 1985 on which day he was taken into custody. We do not, therefore, think that there is any delay in the execution of the order of detention on the petitioner especially in view of the fact that the local address of the petitioner was un known to the authorities. Moreover, it was not necessary to go all the way to Kerala to track the detenu because the material on record clearly shows that he was expected to be in the Court on or about 17th June 1985.

It has been urged, not without justification, by Mr. Gupte that when the grounds of detention were formulated by the detaining authority on or about 9th of April 1985, the petitioner was already in custody. If it is so the fact that he was in custody is not reflected in the grounds of detention. More over, says Mr. Gupte, even in the affidavit in reply which has been filed by the detaining authority it has not been shown that the detaining authority was satisfied that it would be necessary to detain the petitioner if he was released on bail. It is true that the detaining authority has not stated in explicit terms that he found it necessary to detain the petitioner if he is released on bail. But the fact that the detaining authority was fully aware of the imminent possibility of the petitioner being released on bail was in his mind and has been mention ed in clear-cut terms in the affidavit in reply. Implicit in this assertion is the fact that the detaining authority thought it necessary to pass an order u/s 3 of the COFEPOSA Act if the petitioner is released on bail. We are of the opinion that the subjective satisfaction in the instant case is not impaired by the failure on the part of the detaining authority to consider the fact that the petitioner was already in custody when the grounds of detention were formulated.

Nor do we find any substance in the contention of Mr. Gupte that the subjective satisfaction of the detaining authority in the instant case is impaired by the fact that there was no material which could reasonably suggest that what the petitioner had brought with him was gold of foreign origin be cause according to Mr. Gupte the panchanama itself on which the detaining authority must be deemed to have relied does not disclose that the yellow metal which was seized from the petitioner was gold or, at any rate, it was gold of foreign origin. An effective reply has been given by the detaining authority in his affidavit that he has relied not only upon the recitals in the panchanama but also on the statement of the petitioner recorded u/s 108 of the Customs Act. This latter document clearly shows that the petitioner had smuggled gold of foreign markings to the extent of over Rs. 3 lakhs. It is, therefore, impossible to uphold the contention that there was no material at all in support of the subjective satisfaction arrived at by the detaining authority.

Though Mr. Gupte did not urge, as indeed he could not, that a single incident cannot legitimately form the basis of an order of detention u/s 3 of the COFEPOSA Act, he, however, strongly urged that on the facts of this case the detaining authority ought not to have passed the order of detention. According to Mr. Gupte, the petitioner made a clean breast of what he has done at the earliest opportunity; he has not retracted the inculpatory statements made by him in his statement u/s 108 of the Customs Act. These two facts show that the petitioner is generally innocent having no proclivity to criminal actions and if on occasions like this he has brought certain amount of prohibited articles it was only by way of bringing in his savings which he had accumulated in his job at Abu Dhabi. This Court has taken a view, which is fortified by the law laid down by the Supreme Court, that as a proposition of law it cannot be said that a single incident could not form the basis of an order of detention under one or the other law of preventive detention of this country. The manner in which, for example, smuggling is done may be suggestive of the state of mind of the person indulging in that activity. If a person were bringing a contraband article openly and when questioned discloses the nature of the article carried by him, it may indicate a state of innocence on the part of that person or absence of a guilty mind. But when a person brings in gold in a concealed manner and it requires the Customs Officers certain efforts to reach the concealed gold, it cannot be said that the person so bringing the gold is possessed of innocent mind. In this state of affairs if two views are possible and if the detaining authority has preferred one view, it is not possible for this Court to hold that the subjective satisfaction is impaired by non-consideration of the fact that it was a single incident. None of the grounds urged in support of the petition has any substance.

In the result, this petition must fail. Rule is accordingly discharged.