REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO……… OF 2009 (Arising out of S.L.P.(Crl.)No. 7644 of 2008)

Pooja Batra .... Appellant(s)

Versus

Union of India & Ors.           .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This  appeal  is  directed  against  the  judgment  dated

05.09.2008 passed by the High Court of Delhi in W.P. (Crl.)

No. 782 of 2008 which was filed by Pooja Batra wife of Deepak

Kumar @ Deepak Batra detained under the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act,

1974 (hereinafter referred to as “the COFEPOSA Act”) praying

for issuance of a writ of Habeas Corpus to release the detenu

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i.e. her husband from detention.  The High Court, by the said

judgment,  dismissed  the  writ  petition  with  costs  of

Rs.50,000/-  on her  and directed  the  department  to  initiate

criminal proceedings against the detenu under Sections 199,

420, 468 and 471 of the Indian Penal Code in exercise of its

power under Section 482 of the Code of Criminal Procedure.

3) The case of the department is as follows:

(a) The Detaining Authority has issued the detention order

dated  05.12.2007  against  Shri  Deepak  Kumar  @  Deepak

Batra, the husband of the appellant herein on the basis of the

facts and documents put up before them and after satisfying

with the facts on records that the detenu has propensity and

potentiality to indulge in smuggling activities in future.  The

detenu  is  the  mastermind  for  import  of  the  goods  covered

under Bill of Entry No. 589144 dated 25.04.2007.  The goods

covered  under  abovementioned  Bill  of  Entry  were  not  only

mis-declared in respect of quantity but also there were certain

goods which were concealed  in the container.   The value of

such  mis-declared/smuggled  goods  as  calculated  comes  to

Rs.87,07,220/-  and  attracting  duty  has  worked  out  to

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Rs.  30  lacs  approximately.   The  detenu  had  indulged  in

repeated offences since 2006 as he was not the actual owner

of the Importer Exporter Code, (in short “IEC”).  The grounds

are based on the eight Bills of Entry which were filed by the

detenu through his Customs House  Agent,  (in short  “CHA”)

and  also  on  the  basis  of  the  statements  tendered  by

Shri Naveen Kumar, an employee of CHA.  Eight Bills of Entry

have been filed by the CHA in the name of firm provided by

the detenu.  The detenu also provided the photocopy of the

IEC.  Shri Naveen Kumar also identified the earlier signatures

of  the  detenu  on the  authorization  letter  dated  20.08.2007

given  by  the  detenu.   Shri  Naveen  Kumar  confirmed  the

relationship  between  the  last  consignment  and  the  earlier

eight consignments imported by the detenu. The detenu had

fraudulently used IEC No. and PAN No. of M/s Om Prakash

Deepak Kumar.  The actual owner of the IEC was not aware of

the fact that his IEC is being misused by the detenu since

2006 and thorough investigation conducted by the Customs

Authorities has revealed that in the past also eight such Bills

of Entry were filed by the same CHA on the directions of the

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detenu and the goods were cleared and handed over to the

detenu.   The  Detaining  Authority  has  issued  the  detention

order after satisfying with the facts and circumstances of the

case and material available on record.   

(b) Ms.  Pooja  Batra,  wife  of  Deepak  Batra  has  filed  Writ

Petition (Crl.) No. 782 of 2008 before the High Court of Delhi

for  quashing  the  detention  order  bearing  No.

F.N.673/06/2007-CUS/VIII dated 5th December, 2007 issued

by  the  Joint  Secretary  (COFEPOSA),  Ministry  of  Finance,

Department  of  Revenue  under  Section  3  of  the  COFEPOSA

Act.  Before the High Court, various contentions such as non-

application of  mind on the  part  of  the Detaining Authority,

consideration  of  irrelevant  material,  reliance  on  extraneous

material, non-supply of relevant and relied on materials, delay

in  passing  detention  order  and  delay  in  disposal  of

representation  etc  were  raised.   The  High  Court,  by  the

impugned  order  dated  05.09.2008,  dismissed  her  writ

petition. Questioning the same, she filed the present appeal by

way of special leave petition.

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4) Heard  Mr.  R.S.  Sodhi,  learned  senior  counsel  for  the

appellant and Mrs. K. Amreshwari, learned senior counsel for

the respondents.

5) Mr. R.S. Sodhi, learned senior counsel for the appellant

after  taking  us  through  the  grounds  of  detention  order,

impugned order of the High Court dismissing the writ petition

of the appellant and all other connected materials contended

that

(a) The  detention  order  is  liable  to  be  quashed  on  the

ground of non-application of mind and non-supply of

materials relied on and acted upon by the Detaining

Authority while passing the detention order.

(b) The  Detaining  Authority  relied  on  extraneous  and

irrelevant materials.

(c) The  offences  alleged  are  not  “smuggling”  under  the

Customs Act, hence, there is no question of violation

of  any  Act  including  the  Customs  Act,  therefore,

detention under COFEPOSA Act is not sustainable.

(d) Delay  in  passing  the  detention  order  as  well  as  in

disposal of the representation of the detenu.

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6) On the other hand, Mrs. K. Amreshwari, learned senior

counsel for the Union of India and their officials, by taking us

through  the  grounds  of  detention  and  the  counter  affidavit

filed by the Department, submitted that the detention order

was passed on the basis of the relevant materials and after

subjective satisfaction by the Detaining Authority.  She further

submitted that there is no illegality or violation of any of the

statutory  provision  including  that  of  Article  22(5)  of  the

Constitution of India and prayed for dismissal of the appeal.

7) For  convenience,  first  let  us consider  whether  there  is

any delay in passing the detention order and delay in disposal

of the representation. (a) Regarding delay in passing detention

order, the alleged violation relates to Bill of Entry No. 589144

dated  25.04.2007,  the  detention  order  was  passed  on

05.12.2007. After the seizure of the goods from the container

covered  under  Bill  of  Entry  No.  589144  dated  25.04.2007,

nobody  appeared  before  the  authorities  to  get  the  goods

cleared till 23.07.2007.  The detenu himself appeared before

Customs  Authorities  for  the  first  time  on  03.08.2007.   His

statement under Section 108 of the Customs Act was recorded

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and he was arrested on 04.08.2007.  It was explained that in

the  light  of  the  fact  that  earlier  also  similar  eight

consignments  were  got  cleared  by  the  detenu,  the

investigation relied on the statement of witness as if he is the

actual owner of the proprietary concern, the statement of the

clearing agent and his nominee were recorded and it was only

on 29.10.2007 the sponsoring authority recommended to the

COFEPOSA  Department  for  consideration  of  the  matter  to

pass detention order against the detenu.  All  those actions,

various orders/proceedings were mentioned in seriatim both

in the grounds of detention, and in the counter affidavit filed

by the very same authority.  We have carefully gone through

the same and find no merit in the contention.  On the other

hand, we are satisfied that there is proximity to the alleged

offence  and the detention  order.  In  our  view,  there  was no

undue delay so as to snap the link between the incident and

the alleged potentiality of the detenu in indulging in smuggling

activity.  Hence, we reject the said contention.       

(b) Coming to the contention relating to delay in disposal of

the representation, it is true that whenever a representation is

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made  either  by  the  representative  of  the  detenu  or  by  the

detenu  himself,  it  is  incumbent  on  the  part  of  the  named

authority  to  consider,  dispose  of  the  same  and  pass

appropriate  orders  and  communicate  it  without  any

unreasonable delay.  However, it depends upon the facts and

circumstances of each case.  In the instant case, the detenu

has  taken  the  plea  that  he  made  a  representation  to  the

Secretary, Government of India as suggested in the detention

order on 13.06.2008 which was received by the Suptd. of Jail

on 16.06.2008, and on the very same day it was forwarded to

COFEPOSA Department.  It  is the contention of the counsel

for the appellant that though the representation was sent to

the COFEPOSA Department on 16.06.2008 itself and the fact

that  the  Jail  and  COFEPOSA  Department  both  located  in

Delhi yet it took time for more than ten days to respond in

obtaining  the  comments  from the  sponsoring  authority  and

get the same disposed of which is fatal and accordingly the

detention order deserves to be quashed.  As against the said

detention,  in  the  counter  affidavit,  it  is  clarified  that  the

representation  was  received  by  them  on  20.06.2008.   The

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specific assertion made in the counter affidavit has not been

refuted by the detenu in his rejoinder.  On the same day, i.e.,

20.06.2008 itself, it was sent to the sponsoring authority, i.e.

Customs Authority, who sent their comments on 27.6.2008.

The  comments  on the  said  representation  were  sent  to  the

COFEPOSA department  on 27.06.2008,  28/29.06.2008 were

holidays being Saturday and Sunday and on the next day i.e.

30.06.2008, the representation of the detenu was considered

by the competent  officer  of the COFEPOSA department and

the same was rejected.  The rejection order was communicated

to  the  detenu  on  01.07.2008  and  received  by  him  on

02.07.2008.   In  the  light  of  the  details  furnished  in  the

counter  affidavit,  we  do  not  find  any  substance  in  the

contention and satisfy that there was any delay much more

than the bare minimum time required to obtain the comments

of  the  sponsoring  authority  accordingly,  we  reject  the  said

contention also.

8) Let  us  consider  the  main  contention,  namely,  non-

application of mind on the part of the Detaining Authority and

consideration  of  extraneous  and  irrelevant  materials.   This

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issue  covers  all  the  rest  of  the  contentions  raised  by  the

learned  senior  counsel  for  the  appellant.   Mr.  R.S.  Sodhi,

learned senior counsel, submitted that though the detention

order  was passed  on 05.12.2007  after  seizure  of  the  goods

contained in Bill of Entry No. 589144 dated 25.04.2007, the

Detaining  Authority  relying  on  the  eight  Bills  of

Entry/Consignments which related to earlier years and on the

assumption that the detenu misused CHA and IEC passed the

detention order.  According to him, those eight consignments

were  cleared  by  the  Customs  authorities  after  proper

verification, hence the same cannot be a subject  matter  for

detaining the detenu under COFEPOSA Act.  No doubt, Mrs.

K.  Amreshwari,  learned  senior  counsel  for  the  Department

contended  that  except  the  goods  seized  from the  container

covered under Bill of Entry No. 589144 dated 25.04.2007, the

authorities  have  not  based  reliance  on  any  other  instance.

She also contended that even solitary instance is sufficient to

clamp  the  detention  order  if  the  Detaining  Authority  is

satisfied  with  the  materials  placed  before  it.   There  is  no

dispute that even for a solitary instance if sufficient materials

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are  available  and  if  the  Detaining  Authority  is  subjectively

satisfied that the detenu is indulging in smuggling activities

which is  detrimental  to  the interest  of  the  Department,  the

detention  order  can  be  clamped.   However,  perusal  of  the

grounds of detention order dated 05.12.2007 as well  as the

counter affidavit sworn to by the Joint Secretary to the Govt.

of  India,  Ministry of Finance,  Department  of  Revenue dated

12.12.2008 amply demonstrate that the Detaining Authority

has  based  its  conclusion  not  only  with  reference  to  Bill  of

Entry No. 589144 dated 25.04.2007 but also relating to eight

Bills  of  Entry/Consignments  cleared  earlier.   The  detention

order, Annexure P-2, is available at page 97 of the paper book.

In the order apart from narration of various materials as to the

seizure of goods dated 25.04.2007 the Detaining Authority has

adverted  to  and  relied  upon  the  clearance  of  eight

consignments.  In paragraph 18 of the detention order, there

is a specific reference to those facts which reads as under:

“M/s P.P. Datta, Wg. Cdr. (Retd.), the CHA vide their letter dated 9.9.2007 submitted photocopies of bills of entry No. 530534 dated 28.8.2006 No. 538152 dated 25.9.2006 No. 543052 dated 16.10.2006, No. 548191 dated  7.11.2006,  No.  554135  dated  1.12.2006,  No. 558417  dated  20.12.2006,  No.  559159  dated

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23.12.2006 and No.  562725 dated 9.1.2007 (total  8 (eight) bills of entry).  It was observed that in all the said bills of entry the importers were M/s Om Prakash Deepak Kumar and the items imported were Hinges, Scrubber,  Telescopic  Channels  from  M/s  Mount Overseas  (HK)  Ltd.  and  M/s  PIT  Industries  (Hong Kong).”  

The same particulars were reiterated in paragraph 22.  In

paragraph  23,  it  is  stated  that  enquiries  are  being

conducted at overseas to find out the description of goods

declared at port of export, details of payment and the value

declared at port of export in respect to the goods already

stands cleared under the aforesaid eight Bills of Entry.  In

paragraph 26,  Detaining  Authority  has  asserted  that  the

detention order was passed “after taking into consideration

the foregoing facts and materials on record” and concluded

that  “satisfied  that  you  ought  to  be  detained  under  the

COFEPOSA Act, 1974 with a view to preventing you from

smuggling goods in future.”  In paragraph 29, the Detaining

Authority once again reiterated that the clearance of goods

on the basis of eight Bills of Entry, and finally in paragraph

32, the Detaining Authority has concluded thus:

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“While  passing  the  detention  order  under  the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974,  I have referred to and relied upon the documents mentioned in the enclosed list.”                   (Emphasis supplied)

“The enclosed list” mentioned in paragraph 32 is available as

Annexure  P-4  at  page  143 of  the  paper  book.   S.No.  33 of

Annexure P-4 specifically refers “Request for overseas inquiry

in respect of eight consignments claimed to be cleared by M/s

Om  Prakash  Deepak  Kumar”.   As  rightly  contended,

paragraph 32, makes it clear that the Detaining Authority had

not only referred to eight Bills of Entry but also relied upon

those documents in respect of eight consignments.  It is not in

dispute  that  those  eight  Bills  of  Entry/consignments  were

cleared by M/s Om Prakash Deepak Kumar after verification

and on the orders of the Department.  Though, learned senior

counsel  for  the  Department  submitted  that  out  of  eight

consignments only five of the 10% of the checking of goods

alone were verified by the Department, the fact remains that

firstly nothing prevented the concerned officer from verifying

the entire consignment as it was done in the case of Bill  of

Entry No. 589144 dated 25.04.2007 and secondly there was a

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valid order for clearance by the officer concerned.  No doubt,

the department is free to reopen the issue but the fact remains

that on the date of passing the detention order it was only at

the stage of notice and no final decision/conclusion was taken

for violation of the provisions of the Customs Act.   In such

circumstances,  reliance  on those materials  which is  evident

from paragraph 32 read with S.No. 33 of Annexure P-4 clearly

demonstrate  that  Detaining  Authority  has  considered

irrelevant  materials  while  formulating  the  grounds  of

detention.  As pointed out above though the counsel for the

respondents  submitted  that  the  Detaining  Authority  has

considered only in respect of Bill of Entry No. 589144 dated

25.04.2007 for passing detention order, it is clear that apart

from the reference in the detention order itself about the eight

consignments, paragraph 5(1) of the counter affidavit clearly

shows that the Detaining Authority had relied on eight Bills of

Entry while arriving subjective  satisfaction. Though, learned

senior  counsel  for  the  respondents,  in  the  course  of

arguments,  submitted  that  whatever  said  in  the  counter

affidavit  may be eschewed,  in view of the fact that the very

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same person who signed the detention order has also signed

the counter  affidavit  before  this Court,  the contents therein

cannot be lightly ignored as claimed.  On the other hand, the

details  mentioned  in  the  detention  order  as  well  as  in  the

counter affidavit  clearly  demonstrate  that in addition to the

Bill of Entry dated 25.04.2007 the Detaining Authority heavily

relied  on  eight  Bill  of  Entries/consignments  and  satisfying

that he will continue to indulge in smuggling activities which

will  be  detrimental  to the department passed the impugned

detention order.       

9) We have already pointed out that the authorities are free

to  reopen  the  case  in  respect  of  import  of  eight

consignments/Bill of Entries which is said to have been taken

place prior to the Bill  of Entry dated 25.04.2007.  However,

even according to the department, those consignments were

cleared under proper orders by the authority concerned.  It is

also  not  in  dispute  that  on  the  date  of  the  passing  of  the

detention order the authorities have issued notice calling for

certain  details  in  respect  of  import  of  those  eight

consignments.   In  other  words,  the  said  issue  has  not

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concluded and no adverse finding against him is passed on

the  date  of  the  passing  of  the  detention  order.   In  such

circumstances, we are of the view that ‘inconclusive state of

investigation’ cannot legitimately help the authorities to pass

an order of detention against the detenu on the perfunctory

and  inchoate  material  relied  upon.   It  is  useful  to  refer  a

decision of this Court in Chowdarapu Raghunandan vs. State

of Tamil Nadu and others, 2002 (3) SCC 754.  After finding

that on the date of passing of the detention order investigation

in respect of certain other alleged violations is still pending to

ascertain the involvement and role of persons concerned and

noting that apart from the absence of any positive or concrete

materials  to  connect  the  baggage  in  question  with  the

petitioner  therein,  the  nature  of  stand disclosed  in  counter

affidavit filed on behalf of the first respondent does not really

help the authority to prove that the said material  and such

vitally  relevant  aspect  was  either  adverted  to  or  really

considered before  passing the order of detention and taking

note of the fact that the detention order suffers the vice of the

total non-application of mind to a relevant and vital material

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touching question of the culpability as well as the necessity to

order the detention of the petitioner,  quashed the same and

allowed  the  writ  petition.   It  is  settled  law  that  Courts

exercising  powers  of  judicial  review  do  not  consider  the

challenge  to  an  order  of  detention  as  if  on  an  appeal,  re-

appreciating the materials, yet since an order of detention in

prison involves the fundamental rights of citizens, freedom of

movement and pursuit of normal life and liberty, no absolute

immunity can be claimed by the authorities as to the decision

arrived and it is open to the Courts to see whether there has

been  due  and  proper  application  of  mind  and  that  all  the

relevant and vital materials for the purpose have been noticed,

adverted to and considered.  If we consider the case on hand

on the above principles, though, the Detaining Authority has

relied on the import of eight consignments, the fact remains

that the goods were cleared after passing appropriate orders

by the authorities  and any event  on the date  of  passing  of

detention  order  it  was  at  the  stage  of  notice  calling  for

reopening the issue hence the same cannot be a valid material

for passing an order of detention against the detenu.  In fact,

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while  determining  the  subjective  satisfaction  the  Detaining

Authority  had said  that  enquiries  are  pending  on  all  those

documents placed on record and relied upon by them.  Use of

incomplete  material  which is  either  pending or  inconclusive

cannot be a basis for detention order.  In the recent judgment

Kothari  Filaments & Anr. vs.  Commissioner  of  Customs

(Port), Kolkata and Ors. JT 2009 (1) SC 516, this Court has

held that if any enquiry is inconclusive pending consideration

the same cannot be the basis for passing an order against the

person concerned.  Therefore, the eight consignments/Bill of

Entries  relied  upon  by  the  Detaining  Authority  become

irrelevant and conclusion on extraneous material  cannot be

sustained.   

10) Learned senior counsel for the appellant has also pointed

out that all the materials which were relied on and actually

considered in the grounds of detention have not been supplied

to  detenu.   We  have  already  pointed  out  that  both  in  the

grounds  of  detention  as  well  as  counter  affidavit  filed  in

support  of  the  said  order  the  Detaining  Authority  has

reiterated all  those documents including the import of eight

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consignments  were  relied  on  in  more  than one  place  while

passing  the  order  of  detention.   In  fact,  the  Detaining

Authority has adverted to the statement of Deepak Kumar and

mentioned that he had seen his signature in his statement

recorded on 03.08.2007 as well as on letter dated 02.08.2007

and agreed that signature of Deepak Kumar on the declaration

and authorization letter do not tally with his signature on the

statement dated 03.08.2007 and letter dated 02.08.2007 and

concluded that both the formats do not tally.  

11) It is also relevant to refer the definition of “smuggling” in

Section 2(39) of the Customs Act, 1962 which reads as under:

“”smuggling”,  in  relation  to  any  goods,  means  any  act  or omission which will render such goods liable to confiscation under section 111 or section 113;”

Section 111 of the Customs Act, 1962 deals with confiscation

of improperly imported goods which reads as thus:-

“111. Confiscation of improperly imported goods, etc.— The following goods brought from a place outside India shall be liable to confiscation:--

(a) any goods imported by sea or air which are unloaded or  attempted  to  be  unloaded  at  any  place  other  than  a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods;

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(b) any goods imported by land or inland water through any  route  other  than  a  route  specified  in  a  notification issued under clause (c) of section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port;

(d) any  goods  which  are  imported  or  attempted  to  be imported or are brought within the Indian customs waters for  the  purpose  of  being  imported,  contrary  to  any prohibition imposed by or under this Act or any other law for the time being in force;

(e) any dutiable or prohibited goods found concealed in any manner in any conveyance;

(f) any  dutiable  or  prohibited  goods  required  to  be mentioned under the regulations in an import manifest or import report which are not so mentioned;

(g) any dutiable or prohibited goods which are unloaded form  a  conveyance  in  contravention  of  the  provisions  of section  32,  other  than  goods  inadvertently  unloaded  but included in the record kept under sub-section (2) of section 45;

(h) any  dutiable  or  prohibited  goods  unloaded  or attempted to be unloaded in contravention of the provisions of section 33 or section 34;

(i) any dutiable or prohibited goods found concealed in any  manner  in  any  package  either  before  or  after  the unloading thereof;

(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;

(k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein;

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(l) any  dutiable  or  prohibited  goods  which  are  not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any  goods  which  do  not  correspond  in  respect  of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under  transshipment,  with  the  declaration  for transshipment referred to in the proviso to sub-section (1) of section 54;

(n) any  dutiable  or  prohibited  goods  transited  with  or without  transshipment  or  attempted to be  so  transited  in contravention of the provisions of Chapter VIII;

(o) any goods exempted,  subject  to  any  condition,  from duty  or  any  prohibition  in  respect  of  the  import  thereof under this Act or any other law for the time being in force, in respect  of  which the  condition is  not  observed unless the non-observance  of  the  condition  was  sanctioned  by  the proper officer;

(p) any notified goods in relation to which any provisions of  Chapter  IVA  or  of  any  rule  made  under  this  Act  for carrying  out  the  purposes  of  that  Chapter  have  been contravened.”

This  Section  refers  to  goods  brought  from  a  place  outside

India shall  be liable  to confiscation.  Unless there is proper

enquiry and arrive at a conclusion in terms of Section 111 or

Section 113 it cannot be concluded that smuggling had taken

place.  There is nothing in the order of detention which would

indicate that any of the said earlier imports were effected in

contravention  of  any  of  the  provisions  of  the  Customs  act,

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1962, or that they could have been regarded as having been

smuggled into the country within the meaning of Section 2(39)

of the said Act.  Except notice for reopening the order clearing

eight consignments prior to Bills of Entry dated 25.04.2007,

there  is  no  adjudication  and  final  order  by  the  authority

concerned.  In other words, the reference to alleged violation

of the Customs Act in respect of import of eight consignments

which  was  only  at  the  pre-mature  stage  and  considering

extraneous  materials,  which  are  inconclusive  cannot  be  a

valid  ground  for  clamping  detention  under  COFEPOSA Act.

Inasmuch as, the Detaining Authority has extensively relied

upon  the  allegations  that  the  detenu  was  involved  in  the

import  of  eight  consignments  through  M/s  P.P.  Dutta,

reliance  on  those  irrelevant  material  vitiates  the  detention

order.   This  is  more  so  as the  said  alleged  earlier  imports,

apparently constitute the main basis for the opinion formed by

the Detaining Authority that the detenu had the propensity

and potentiality to indulge in smuggling activities in future.   

12) As  already  discussed,  even  based  on one  incident  the

Detaining  Authority  is  free  to  take  appropriate  action

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including detaining him under COFEPOSA Act.  The Detaining

Authority has referred to the violation in respect of importable

goods  covered  under  Bill  of  Entry  No.  589144  dated

25.04.2007.   In  an  appropriate  case,  an  inference  could

legitimately be drawn even from a single incident of smuggling

that the person may indulge in smuggling activities, however,

for  that  purpose  antecedents  and  nature  of  the  activities

already carried out by a person are required to be taken into

consideration  for  reaching  justifiable  satisfaction  that  the

person  was  engaged  in  smuggling  and  that  with  a  view  to

prevent,  it  was  necessary  to  detain  him.    If  there  is  no

adequate material for arriving at such a conclusion based on

solitary incident the Court is required and is bound to protect

him in view of the personal liberty which is guaranteed under

the Constitution of India.  Further subjective satisfaction of

the authority under the law is not absolute and should not be

unreasonable.  In the matter of preventive detention, what is

required  to  be  seen  is  that  it  could  reasonably  be  said  to

indicate  any  organized  act  or  manifestation  of  organized

activity or give room for an inference that the detenu would

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continue to indulge in similar prejudicial  activity warranting

or necessitating the detention of the person to ensure that he

does not repeat this activity in future.  In other words, while a

single  act  of  smuggling  can  also  constitute  the  basis  for

issuing  an  order  of  detention  under  the  COFEPOSA  Act,

highest  standards  of  proof  are  required  to  exist.   In  the

absence of any specific and authenticated material to indicate

that  he  had  the  propensity  and  potentiality  to  continue  to

indulge in such activities in future, the mere fact that on one

occasion person smuggled goods into the country would not

constitute  a  legitimate  basis  for  detaining  him  under  the

COFEPOSA Act.  This can be gathered from the past or future

activities of the said person.  In the case on hand,  we have

already pointed out that there were no such past activities as

could lead to a reasonable conclusion that he possesses the

propensity or the potentiality to indulge in smuggling activities

in future, to prevent which it is necessary to detain him.  At

present there is nothing in the order of detention which would

indicate that any of the said earlier imports was effective in

contravention  of  any  of  the  provisions  of  the  Customs  Act,

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1962 or that they could have been regarded as having been

smuggled into the country within the meaning of Section 2(39)

of  the  said  Act.   In  such a  case,  as  held  by this  Court  in

Chowdarapu  Raghunandan (supra), the  invocation  of  the

COFEPOSA Act against such a person would not be justified.

13) Apart from these aspects, it is unfortunate that the High

Court while considering the Habeas Corpus writ petition filed

under Article 226 of the Constitution of India by the wife of

the  detenu  challenging  the  order  of  detention  on  various

grounds, on going through the materials of the department as

if  as  an  Appellate  Court  relying  on  Section  482  Code  of

Criminal  Procedure  directed  the  Commissioner  of  Customs,

ICD, Tughlakabad, to lodge a report with the police station,

Tughlakabad  within  a  period  of  15  days  along  with  the

complete set of relevant documents to enable them to register

a case under Sections 199, 420, 468 and 471 of the Indian

Penal  Code  against  the  detenu.   The  said  direction  is  not

warranted  considering  the  fact  that  issue  before  the  High

Court was about the validity of the detention order and the

curtailment of the personal liberty of the detenu and nothing

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more.  We are of the view that the High court is not justified in

issuing  such  direction  and  awarding  exemplary  cost  of  Rs.

50,000/- payable to the sponsoring authority.

14)  In the light of the above discussion and for the reasons

stated  above  the  impugned  order  of  the  High  Court  dated

05.09.2008 in W.P. (Crl.) 782/2008 is set aside, consequently

the  detention  order  bearing  F.N.  No.  673/06/07-CUS/VIII

dated  05.12.2007  issued  by  Joint  Secretary  (COFEPOSA),

Ministry of Finance, Department of Revenue is quashed.  The

detenu-husband  of  the  appellant  viz.,  Deepak  Kumar  @

Deepak Batra is ordered to set at liberty forthwith if he is not

required in any other case.  Appeal is allowed.

….…….…….……………………J. (DALVEER BHANDARI)

   ...…………………………………J.                                (P. SATHASIVAM)      

New Delhi;                                   March 27, 2009.  

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