Smt. Nafisa Syed Ali vs The State of Maharashtra and Others

A.S. Oka, J.—We have heard the submissions of the learned Counsel appearing for the parties on 11th October, 2012. By this Writ Petition under Article 226 of the Constitution of India seeking Writ of Habeas Corpus, the petitioner has prayed quashing and setting aside the order or detention dated 30th March, 2012 passed by the Detaining Authority in exercise of powers u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA Act").

The learned Counsel appearing for the petitioner has made detailed submissions on various grounds urged in the Petition. The learned Counsel has pressed into service grounds Nos. 2, 3, 4 and 5 set out in the petition. The learned Counsel has also pressed into service the grounds Nos. 6 and 7 of the Petition. The learned Counsel appearing for the petitioner pointed out that the order of detention has been passed in exercise of powers under Sub-section (1) of Section 3 of the COFEPOSA Act. The learned Counsel for the petitioner has drawn our attention to the specific ground taken in the Petition to the effect that the petitioner voluntarily surrendered his Passport to the Sponsoring Authority on the same day which is an admitted position and this fact is not considered by the detaining Authority. Her submission is that the material produced by the Sponsoring Authority before the detaining authority shows that action was initiated against the petitioner under the Penal Law of the land and this vital aspect has not been considered by the detaining authority. The learned Counsel submitted that it is mandatory for the detaining authority to consider that the petitioner had voluntarily surrendered his passport. She pointed out that the order of detention was passed with a view to prevent the petitioner in future from smuggling goods and, therefore, the detaining authority ought to have considered the fact that the petitioner could not have indulged in prejudicial activities for want of passport.

The learned Counsel appearing for the petitioner placed reliance on a decision of the Apex Court in the case of Gimik Piotr Vs. State of Tamil Nadu and Others, in support of this ground. The learned Counsel also placed reliance on a decision of the Division Bench of this Court dated 26th June 2012 in Criminal Writ Petition No. 389 of 2012 : Mohammed Ashfaq Hallare Vs. The State of Maharashtra, . In support of her submissions, she also invited our attention to the averments made in the reply filed by various authorities.

The learned APP appearing for the respondents did not dispute the correctness of the fact that the passport was voluntarily surrendered by the petitioner. The learned APP invited our attention to the decision of the Apex Court in the case of Abdul Sathar Ibrahim Manik Vs. Union of India and others, . The learned APP submitted that merely because passport was in the custody of Customs Department, that by itself cannot be the basis of judicial review of the subjective satisfaction arrived at by the detaining authority. The learned APP therefore submitted that in view of the law laid down by the Apex Court, this is no ground to exercise writ jurisdiction for setting aside the order of detention.

Before dealing with other grounds, it will be necessary to advert to the main ground canvassed by the learned Counsel appearing for the petitioner based on surrender of passport.

We have perused the affidavit of the detaining authority dealing with the ground incorporated in clause 4 of the grounds. The detaining authority has merely stated that looking to the propensity and potentiality of the detenu indulging in activities which were prejudicial activities she was subjectively satisfied that it was absolutely necessary to issue an order of detention. However, there is no dispute raised regarding voluntary surrender of the passport by the petitioner to the Sponsoring Authority.

At this stage, it will be necessary to make a reference to the decision of the Apex Court in GIMIK PIOTR, [2010 ALL MR (Cri) 308 (S.C.)] (supra). One of the grounds urged before the Apex Court was that the passport of the detenu was retained by the authorities. A submission was canvassed before the Apex Court that retention of passport was not enough as the order of preventive detention has been passed so as to prevent him from abetting the smuggling goods by staying in the country. In fact, the Apex Court noted that this argument was accepted by the High Court as a satisfactory answer to justify the order of detention, It will be necessary to make a reference to paragraphs 31 to 34 of the decision of he Apex Court which read thus :-

During the course of the hearing, the learned counsel appearing for the State submits that the mere retention of the passport of the detenu will not be enough as the preventive detention order has been passed so as to prevent him from abetting the smuggling of goods by staying in the country. This was argued before the High Court. The High Court accepted this as a satisfactory answer to justify the passing of a preventive detention order. In the counter-affidavit filed on behalf of Respondents 1 and 3 in Para 3 it is stated : "It is accepted by the detenu himself in the representation that he cannot even survive in India. Therefore for the survival, till he goes out of this country, there is all likelihood for him to indulge in such activities indirectly and illegally without the passport and can also abet in such activities. Hence, the averments made in these grounds are unsustainable and untenable and the detention order passed is valid in law.

In our view, if that be the position, the order of preventive detention could have been passed u/s 3(1)(ii) of COFEPOSA, as it authorises the State Government to pass a preventive detention order to prevent him from abetting smuggling of goods. The argument advanced by the respondents is devoid of any logic.

In the present case, the detention order was passed u/s 3(1)(i) of COFEPOSA. The Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. As observed by this Court in Rajesh Gulati case, that the contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation.

The counsel appearing for the State relied on the observations made by this Court in Abdul Sathar Ibrahim Manik v. Union of India with particular reference to para 4 of the judgment. A careful perusal of the aforesaid paragraph reveals that the Court did not answer the question of the passport being impounded. In the said case, the detention order was based on possession of fifty gold biscuits of foreign origin found in person of the detenu. It was also found that the detenu was a part of a larger international smuggling ring and therefore the Court sustained the order of detention passed by the detaining authority. This Court did not go into the issue as to whether the impounding of the passport of the detenu was enough to curb the potentiality of smuggling and to render the order of preventive detention unjustified.

The other case on which reliance was placed by the learned counsel appearing for the State was Sitthi Zuraina Begum v. Union of India. In our view, the findings and conclusions reached in that case would not assist contention of the respondents, as the Court held in that case that the impounding of the passport of the detenu effectively foreclosed the chances of the detenu engaging in smuggling activities in the future.

(underlines added).

In the case of Mohammed Ashfaq Hallare Vs. The State of Maharashtra, , the Division Bench was dealing with the order of detention under sub-section (1) of Section 3. This was also a case where the argument was that the detenu was not possessing any passport which completely ruled out the possibility of the detune travelling abroad and indulging in smuggling goods in future. Even this Court has dealt with the same submission based on a case of Abdul Sathar (Supra) made by the learned APR This Court rejected the submission. As the order of detention has been based only on clause (i)of sub-section (1) of Section 3, the order of detention must go only on the basis of this ground.

Hence, as the Petition deserves to succeed on this ground, it is not necessary to deal with other grounds urged by the learned Counsel appearing for the petitioner. Hence, we pass the following order :-

Rule is made absolute in terms of prayer clause (a) which reads thus:-

(a) 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-106/SPL-3(A)

dated 30/3/2012 and be pleased to direct that the detenu Syed Ali Syed Madar be set at liberty.