Padmavathi Ramachandran vs The State of Tamil Nadu

Shanmukham, J.—The Petitioner is the wife of the detenu who was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on 8th April, 1985.

The principal contention advanced by Mr. V.P. Raman, learned Counsel for the Petitioner, is that in the following circumstances, the order of detention suffers from several infirmities so as to vitiate the said order: In the forefront, it is pointed out that the detenu is a practising advocate. He was already arrested under the Customs Act and was released on bail by a competent Court. As a member of the Bar he will not scare himself away. After all, it is a single instance of alleged smuggling which is not as grave as to support the detention. It is too difficult to infer from a sole instance the tendency on the part of the detenu to indulge in smuggling activities or to be an abettor to such activities. He believed his clients who arranged for his to and fro passage from Madras to Singapore and also for his stay abroad. The statements of other persons referred to in the order of detention clearly indicate that his name was misused by others in sending unaccompanied luggage bearing his initials R.T.R. by M.V. Chidambaram. It is emphatically urged by the learned Counsel that in such circumstances if the provisions of the Act were to be invoked and a person like the detenu were to be detained, there is the grave danger to the liberty of a citizen, particularly when the detenu is being prosecuted under the Customs Act. Another string of the argument is that if the conclusion of the detaining authority did not follow from the preceding paragraphs as disclosed in the order of detention, the conclusion cannot be sustained. As the liberty of the citizen is being eroded by the detaining authority resorting to this Act, it is the Court which shall act as guardian of the liberty of the citizen and should see that there is no abuse of the power on innocent citizens.

It might be that total absence of materials to support the subjective satisfaction of the detaining authority about reasonable apprehension of the detenu involving himself in the activities referred to in the Act may vitiate the order of detention. However, the law as settled by the Supreme Court is that it is not open to the Court to examine the sufficiency or otherwise of the grounds which to the subjective satisfaction of the detaining authority are enough to come to a conclusion that it is likely that the detenu if not detained under the Act would indulge in such activities as referred to in the Act. In Mrs Saraswathi Seshagiri Vs. State of Kerala and Another, . the Supreme Court has observed-

When the Legislature has made only the subjective satisfaction of the authority making the order of detention, it is not for the court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of authority.

It is important to notice that this decision is rendered under Act 52 of 1974. As a matter of fact, the learned senior counsel himself conceded that while dealing with a habeas corpus petition like the present, this Court is not sitting in appeal on the order passed by the detaining authority. In other words, the jurisdiction of this Court in interfering with the order of detention passed under the Act is rather circumscribed. The above ruling of the Supreme Court will forbid us from examining the sufficiency or otherwise of the grounds relied on by the detaining authority to support its subjective satisfaction. This is not a case where it can successfully be contended that there is absolutely no ground for the detaining authority to have a reasonable apprehension of the detenu indulging or involving himself in the activities referred to in the Act. We are unable to countenance the contention that the conclusion did not follow from the preceding paragraphs.

For, there is at least a single instance of the detenu having some smuggled goods. In the order of detention, there(sic) is the following reference:

Both circumstantial and corroborative evidence goes to prove that the entire conspiracy for smuggling contraband goods in the guise of baggages was hatched by Thiru A. Chenchiah Naidu.

It is further pointed out in the order of detention that the detenu imported without a valid licence dutiable and restricted goods in the guise of baggage to the sum of Rs. 12,13,913 which is prohibited by Clause 3 of the I.E.C. Order, 1955 (as amended) issued in pursuance of Section 3(1) of Imports and Exports (Control) Act, 1947 read with Section 11(2) (U) of the Customs Act. It is also seen from the order of detention that the detenu met Manika Rao in room No. 403 in 7th Storey Hotel, Rochar Road, Singapore, that Manicka Rao arranged for the detenu, room No. 401 in that hotel, that the detenu stayed there, that Manicka Rao himself came to the Airport to receive the detenu, paid the customs duty about Rs. 9140 totally for VCR and the typewriter, that Manicka Rao dropped the detenu in his residence and collected the VCR, detenu''s passport, duty paid receipt and detenu''s landing certificate, that two wooden cases with the markings ''RTR'' were manifested as carga from Singapore to Madras by M.V. Chidambaram, for which the detenu had earlier obtained a landing certificate for their clearance, that at North Quay the detenu identified those two cases and admitted that the markings ''RTR'' represented his name and the two cases belonged to him, that one non-negotiable receipt S/Madras/78 dated 31st May, 1984 for the consignment of two package personal effects weighing 300 kgs. was shown to him and further, that he left Singapore on 3rd June, 1984, while Manicka Rao returned from Singapore to Madras on 2nd June, 1984 to receive the detenu as already stated.

Nonetheless, learned Counsel for the Petitioner claimed support for his argument from the decision reported in Vijay Narain Singh Vs. State of Bihar and Others, . The relevant passage pressed into service is paragraph No. 34 in the judgment. It runs as follows;

Before leaving this case, I should state that a number of decisions were cited before us in which it had been held that an order of detention based on a criminal charge which is still to be tried may not be invalid and that an order granting bail by a criminal court cannot be a bar to the passing of an order of detention. But I have not found it necessary to deal with them here as they would have become relevant only if I had been satisfied that the Petitioner was an anti-social element. Moreover, the orders of detention questioned in those cases were governed by the provisions of the statutes under which they had been issued.

On the strength of the above observation, learned Counsel for the Petitioner further submitted that this Court has enough jurisdiction to satisfy itself as to the necessity of the Respondents invoking to their aid the provisions of the Act and in detaining the detenu under the Act. Immediately we have to point out that the Supreme Court in that case was concerned with Bihar Control of Crimes Act and that on the facts relied on By the District Magistrate, Mr. Justice Venkataramiah held that the detenu in that case cannot be a habitual offender, nor an anti social element as defined under the relevant provisions in that Act. It is thus the learned Judge made the above observation. But, the facts here are entirely different. It is interesting to note that Mr Justice Venkataramiah was a member of the Bench which rendered the decision in Alijan Mian v. District Magistrate, Dhanbad. In paragraphs No. 10 of the said judgment, the law is stated thus-

It is for the detaining authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future,

No doubt, the decision was rendered under National Security Act, 1980. But we have already referred to the decision of the Supreme Court in Mrs Saraswathi Seshagiri Vs. State of Kerala and Another, . where it is clearly pointed out that it is not for the Court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority. We are bound by the prevailing ruling of the Supreme Court. Consequently, we are unable to accept the argument that we have the competence (sic) to examine the detention order on the grounds relied on by the detaining authority.

Reverting to the argument based on single instance, we have to point out that the matter is also governed by the authority no less than that of the Supreme Court. In Saraswathi Seshagiri v. State of Kerala1 referred to supra, relying upon Debu Mahato Vs. The State of West Bengal, , the Supreme Court has held that whether a single solitary act attributed to a person is sufficient to warrant an inference that he will repeat his activity in future also, will depend on the nature of the act and attendant circumstances and that the past act of the person in the circumstances might be an index of his future conduct. In this case a reading of the order of detention will show, it is not on the single solitary act of having imported dutiable and restricted goods in the guise of baggage to the tune of Rs. 12,13,913 the order of detention is based, but it is also on the inference that there was a conspiracy for smuggling contraband goods in which, the detaining authority has every reason to believe, the detenu is involved. As already pointed out by us, it is not within our competence to examine the subjective satisfaction of the detaining authority unless it be the materials relied on by the detaining authority and referred to in the order of detention will not support a subjective satisfaction of reasonable apprehension of the detenu being involved in the activity of smuggling. It may not be out of place to refer particularly to paragraph No. 13 in the order of detention. From the said allegation read together with the fact that the baggage brought by M.V. Chidambaram in the name of the detenu weighed 300 tonnes, it is not possible for us to hold that the detaining authority had absolutely no material whatever to hold that there is every likelihood of the detenu indulging in the prohibited activities. In the light of what we have just stated, there is no need for us to examine the question in this case as to whether a single solitary act attributed to a person is sufficient to warrant an inference that he will repeat his activity in future also.

In Alijan Mian Vs. District Magistrate, Dhanbad and Others, to which we had occasion to refer earlier, the Supreme Court has ruled-

Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. In the circumstances, the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution. It is for the detaining authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future.

It is relevant to note that in that case when the bail application was pending, the order of detention was made and the grounds of detention ran as follows:

The subject is in jail and is likely to be released on bail...... In the circumstances, I am satisfied that he is allowed to remain at large, he will indulge(sic) in activities prejudicial to the maintenance of public Order.

A fortiorari, the mere fact that the detenu was released on bail in the criminal prosecution laid against him by itself is no valid ground to assail the order of detention.

Bound as we are by the provisions of law propounded by the Supreme Court we find that the order of detention does not suffer from any infirmity and thus we find ourselves unable to interfere with the order.

In the result, the writ petition fails and is dismissed. As we have followed the Supreme Court ruling, we decline the oral request for special leave sought for by the senior learned Counsel for the Petitioner.