Mohammed Ashfaq Hallare vs The State of Maharashtra

A.M. Khanwilkar, J.—Heard learned counsel for the parties. This writ petition, under Article 226 of the Constitution of India, takes exception to the detention order dated 25th October, 2011, passed by the Principal Secretary to the Government of Maharashtra, Home Department and Detaining Authority, Mantralaya, Mumbai-32 (for short Detaining authority),in exercise of powers u/s 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) (hereinafter referred to as the said "COFEPOSA Act" for the sake of brevity) with a view to prevent the detenue in future from "smuggling goods"

After the detenue was detained, the grounds of detention have been served on him. Even from the fair reading of grounds of detention what can be discerned is that the detaining authority thought it essential to issue detention order in question against the detenue being subjectively satisfied that it was imperative to pass such order with a view to prevent the detenue from smuggling goods in future. In other words, the detaining authority has invoked ground ascribable only to section 3 (1)(i) of the COFEPOSA Act. No other ground provided u/s 3 (1) had weighed with the detaining authority while recording her subjective satisfaction. We may usefully reproduce the relevant portion of the detention order as well as the grounds of detention which would substantiate this position. The same read thus :-

DETENTION ORDER.

No. PSA 1211/CR-54/SPL/3(A) Whereas I, Medha Gadgil, Principal Secretary (Appeals & Security) to the Government of Maharashtra, Home Department, Specially empowered u/s 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) vide Government Order, Home Department (Special) No. MIS-2009/CR-113/SPL-3(A), dated the 30th September, 2009, am satisfied with respect to the person known as Shri Mohammed Ashif, (Age 32 years) residing at H.No.132, Patel Compound, Kidwai Road, Bhatkal, Karwar, North Kanara, Karnataka 581320 that with a view to preventing him in future from smuggling of goods, it is necessary to make the following order.

(Emphasis supplied)

GROUNDS OF DETENTION:

Considering the nature and gravity of the offence and the well organized manner in which you have engaged in such prejudicial activities. It is imperative that you should be detained under the provisions of COFEPOSA Act, 1974, with a view to prevent you from indulging in smuggling activities in future."

In this backdrop, two fold argument has been urged before us. The first is that the subjective satisfaction has been reached by the detaining authority on the basis of solitary instance referred to in the grounds of detention against the petitioner. That is not enough to invoke section 3 (1)(i) of the Act. The second point is that the subjective satisfaction arrived at by the detaining authority is vitiated because it has not considered the efficacy of the fact that the passport of the petitioner has already been taken in custody by the Customs Department as a condition for grant of bail. That completely rules out the possibility of the detenue traveling abroad and indulge in smuggling goods in future. To buttress these submissions, reliance has been placed on the decision of the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, . Even in that case the detention order was challenged on the basis of these two aspects. The Apex Court, after considering the relevant decisions on the point, answered the issue in favour of the petitioner. On the first point, even in that case, the court noticed that the subjective satisfaction recorded by the detaining authority was on the basis of one solitary incident and secondly the subjective satisfaction that the detenue would continue to smuggle goods in future was intangible when the record established that the passport of the detenue was already in the custody of the department. In our opinion, the principle stated in this decision squarely applies to the fact situation of the present case and for the same reasons even this petition ought to succeed.

We may place on record that the above said grounds have been urged by way of Criminal Application No. 324 of 2012 as additional ground in support of the relief claimed in the writ petition. We thought it appropriate to permit the petitioner to urge the said ground in the interest of justice. We may also place on record that the petitioner has raised other contentions for challenging the order of detention but, in our opinion, the petitioner ought to succeed on the above said contention which is squarely answered in the decision of the Apex Court in Gimik Piotr''s case (supra).

Learned A.P.P., however, was at pains to persuade us that the Court ought to take into account the statements of the detenue given to the authority while in custody u/s 108 of Customs Act, 1962, which would show that the petitioner was carrying substantial Indian currency to the extent of Rs. 38 lakhs with an intention to smuggle the same outside India and was part of the conspiracy along with Mujib Keppa from Bhatkal from Karnataka. As aforesaid, the subjective satisfaction has been recorded only in respect of ground of smuggling goods in future, u/s 3 (1) (i) of the Act. None other grounds weighed with the detaining authority for issuing detention order, against the detenue in this case. That is evident from the opening part of the detention order, and more particularly, from para 9 of the grounds of the detention reproduced hitherto. If the argument of the learned A.P.P. was to be accepted, it could result in justifying and upholding the detention order on grounds on which subjective satisfaction has not been recorded by the detaining authority itself. It is not possible to adopt that course.

Considering the above, it is not necessary for us to dwell upon other grounds urged by the petitioner as we are more than convinced that the petition ought to succeed on the basis of principle expounded by the Apex Court in Gimik Piotr''s case (supra). We may place on record that the learned A.P.P. did argue that merely because the passport was in the custody of the Customs Department that by itself cannot be the basis for judicial review of the subjective satisfaction reached by the detaining authority. In support of this submission, she relied on the decision in the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, . Identical contention was considered by the Apex Court in Gimik Piotr''s case (cited supra) and has been negatived, as can be discerned from the dictum in paragraph 33 of the said decision. The Apex Court has distinguished the line of authorities taking the view that the fact that passport is in the custody of the Department does not impair power of the detaining authority to issue order of detention. The Apex Court has noticed that those decisions were on the basis of other grounds provided u/s 3 (1) of the COFEPOSA Act and not restricted to section 3 (1)(i) as in the case of Gimik Piotr''s case. Even in the present case, the detention order has been passed on the basis of subjective satisfaction regarding ground only u/s 3 (1)(i) of the COFEPOSA Act. Taking any view of the matter, therefore, this petition ought to succeed. In the result, the petition is allowed. Same is made absolute in terms of prayer clause 7 (a) which reads thus:

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. PSA-1211/CR-54/SPL-3(A), dated 25.10.2011 issued by Smt.Medha Gadgil, the principal Secretary to the Government of Maharashtra, Home Department and Detaining Authority, Mantralaya, Mumbai 400032 (Exh.A to the petition) and be pleased to direct that the detenue (Mohammed Ashif) be set at liberty; forthwith.

All concerned to act on the ordinary copy of this order, duly authenticated by the office.