Prithipal Singh vs Secretary to the Government of India

K.S. Bhalla, J.

Petitioner Prithipal Singh has been detained vide detention order dated 8.10.1988 (Annexure P1) passed under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act 1974 (as amended) by Joint Secretary to the Government of India. Annexure P2 provides detail of the grounds on which aforesaid detention order is said to have been based and it indicates solitary incident of 15.8.1988 when petitioner is said to have smuggled gold in primary form etc. from Dubai while travelling in Ariana Afghan Airlines Flight, detected by the Customs authorities at Rajasansi Airport, Amritsar. Eight gold pieces are said to have been recovered two from the outer backles of the handle of maroon colour suitcase, four concealed under the wheels of an Air Bag and two from the back packet of the trousers which the petitioner was then wearing. The detention order, as is clear from the language used therein, was made for twin purposes, i.e. with a view to preventing the petitioner from.

(i) smuggling goods, and

(ii) engaging in transporting smuggled goods.

Through present writ petition, petitioner Prithipal Singh has prayed for quashing the detention order in question on various grounds claiming that the same in unwarranted and without any justification in the given facts and circumstances.

First of all it is contended that the detention order is based on a solitary instance of commission of an excess on which account it would not be proper to conclude that petitioner is engaging in such activities. Ordinarily, it cannot be inferred on the basis of single act of commission or omission that a person has developed such propensities as to conclude that he is likely to repeat such acts. In the absence of any background suggesting that a person is engaging in such activities or has adopted such activities by way of profession or has made it a habit, there may not be any justification to conclude that he would repeat such an act of commission or omission unless detained though preventive detention. No such background has been disclosed in detention order Annexure P1 or the ground of detention Annexure P2. It is not even suggested therein that petitioner has been often travelling abroad. Past acts of a person in peculiar circumstances might provide an indication of his future conduct but single solitary act in the absence of any attendant circumstances so to suggest may not be considered to be sufficient to infer that he with repeat his activity in future also. Any attending circumstance pointing towards any such inference has not been disclosed in annexure P2. On the other hand, there is some confusion with regard to the alleged recovery to which I shall revert to subsequently. The fact that there was clever concealment by its. It may not be taken to be sufficient to so indicate. In every smuggling of goods, there is bound to be an element of concealment and more careful and clever a person si, he is bound to introduce more clever concealment in his own interest irrespective of the fact whether he is smuggler by profession or not. Also, the costlier the goods smuggled are, greater precaution is bound to be taken. In this case, it can neither be said to be a case of clever concealment pure and simple as admittedly two out of the gold pieces were just recovered from the back pocket of the trousers which the detenu is said to be wearing.

Again, the two purposes for which the detention is said to have been made, are completety independent to each other. One is smuggling of goods and the other is engaging in transporting smuggled goods. The second starts only after the act of smuggling is complete and invariably, is resorted to by a different person. A person who engages in transporting smuggled goods is not reasonable for smuggling of goods and thus the two objects ordinarily do not become part of a single person. In the given incident, the person concerned cannot be said to have engaged himself in transporting smuggled goods, because no occasion for the same arose and the goods were detected and taken into possession while they were being smuggled or immediately after their smuggling. In this situation of the matter, there is no material what soever for making interference with regard to second purpose. In the absence of any incident with regard to transportation of smuggled goods, to my mind, there is no justification to draw an inference that petitioner would engage himself in transporting smuggled goods in future.

The passport of the detenu was bound to or could have been seized and by seizure thereof it would have become impossible for the detenu to go abroad muchless to smuggle goods. First purpose, i.e., of smuggling goods thus could have been thwarted by the action of seizure of passport and restriction on the fundamental right of the freedom of a citizen by resorting to prevention detention need not have been made. Mention in the return that petitioner had been visiting foreign countries prior to 15.8.1988 too cannot possibly be taken to have any bearing on the case particularly when no such mention is made in annexures P1 to P2. In any case, no detail of any such it has either been provided in the return.

So far has the confusion with regard to the recovery is concerned, it is provided in annexure P2 itself. It has clearly been said therein that two gold pieces were detected concealed in the outer buckle of the handle of maroom colour suitcase of the petitioner whereas four gold pieces were detected concealed under the wheels of the same Air Bag. A suitcase cannot possibly be termed as Air Bag and vice versa. Therefore, ordinarily it should be considered that the above said reference relates to two packages but the use of the word `same'' negatives that conclusion. This discrepancy with regard to recovery of the smuggled goods on the basis of which it has been inferred that the petitioner would resort to smuggling in future, has not been reconciled on the record. In para 3 of the return while detecting of four gold pieces, the Air Bag has been shown to be of maroon colour i.e., the colour given to the suitcase in annexure P2, which confirms the use of the word `same''. It is no where explained in the return if there was any omission while providing description in the grounds of detention and as such one cannot even divert to the conclusion that both the suit case and the Air Bag were of maroon colour and reconciliation may not have been possible through the return because if the materinal communicated to the detenu was defective, that is bound to affect detention adversely.

For the foregoing reasons, the given facts and circumstances cannot be taken to be sufficient to warrant an action for preventive detention.

Before resorting to preventive detention, the subjective satisfaction of the Detaining Authority is a must and for subjective satisfaction, application of mind is necessary. In this case, the Detaining Authority does not appear to have applied its mind. Had it done so, the above referred to confusion with regard to suitcase and Air Bag would not have remained unresolved. From that it appears that grounds of detention perhaps were prepared by a smaller fry and the Detaining Authority, i.e., Joint Secretary to the Government of India, did not care to go through the same before making the detention order. If it did not apply mind to the very basis of the detention order, it cannot be treated to be case of subjective satisfaction of the Detaining Authority. The two distinct purposes which as shown above could not possibly overlap might also not have been taken into account. Moreso, when their was no incident with regard to transportation of smuggled goods, in absence of which inference in favour of engaging in transporting smuggled goods, is not warranted. In this connection it is also significant to note that the Detaining Authority in this case has not come forward with his affidavit to justify subjective satisfaction or application of mind. It was observed in Shaik Hanif and others v. State of West Bengal, AIR 1974 Supreme Court 679 by the Apex Court that in response to the rule nisi the counteraffidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under Section 3 was passed. It was further observed therein that in case for sufficient reasons shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under Section 3 cannot be furnished, the counteraffidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government secretariat or submitted it to the Minister or other officer duly authorised under the rules of business framed by the Governor to pass orders on behalf of the Government in such matters. When subjective satisfaction is assailed, obviously the case of the petitioner is that of attribution of extraneous considerations, that is why it is for the detaining authority to come forward to furnish counteraffidavit on behalf of the State. In this case, the counteraffidavit was furnished by Under Secretary, Government of India, one Mr. S.K. Chaudhary and not the Detaining Authority, i.e. Mr. K.L. Verma the Joint Secretary to Government of India. No reason has been advanced why Mr. Verma has not come forward to do so and it is neither shown on the record that Mr. Chaudhary at any stage dealt with the case, so as to conclude that he had personal knowledge with regard thereto. On the other hand, the verification under the return to the effect that "the contents of this affidavit are true and correct to the best of his knowledge as derived from facts and official records'', indicates that he had never dealt with this case at any stage. He did not even take care to contact Mr. Verma to derive his own knowledge'' from him. In fact the contents of the affidavit have not been verified on the basis of his knowledge or belief as is usually done in such cases and instead he confines to say about true and correctness only on the knowledge derived from official records. Thus from the various circumstances placed on the record, it appears that the Detaining Authority did not apply its mind and when its subjective satisfaction cannot either be concluded from the return or counter affidavit placed on the record, the detention order cannot possibly sustain. It is well settled that the subjective satisfaction of the Detaining Authority is not where immune from judicial reviewability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial review. The socalled subjective satisfaction of the Detaining Authority pertaining to this case does not stand to the test of judicial scrutiny with regard to its validity.

Counsel for the petitioner has found serious fault with the fact that in answer to the writ petition filed by the petitioner counteraffidavit was sworn by S.K. Chaudhary, Under Secretary in the Ministry of Finance, Government of India, and not by Mr. K.L. Verma Joint Secretary to the said Government, who had passed the order of detention. For the aforesaid reasons. I am not going to dismiss the submission as of no relevance or importance. This conclusion, to my mind, is further reinforced by State of Punjab and others v. Jagdev Singh Talwandi, 1984(1) C.L.R. 386 (at page 402 para 25).

In the light of the above discussion, this writ petition is allowed and detention order dated 8.10.1988, annexure P1, is quashed. The detenu shall be released forthwith unless required in any other case.