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PETITIONER: SHIV RATAN MAKIM S/O NANDLAL MAKIM

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT16/12/1985

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) PATHAK, R.S.

CITATION:  1986 AIR  610            1985 SCR  Supl. (3) 843  1986 SCC  (1) 404        1985 SCALE  (2)1504  CITATOR INFO :  R          1986 SC2177  (48)  F          1989 SC1282  (9)  RF         1990 SC 225  (9)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act, 1974,  s.3 -  Detention  order  - Solitary incident  - Whether sufficient for detention - Time gap between  incident and detention order - Whether vitiates order -  Detention order  - Whether  can be made to subvert, supplant or substitute the punitive law.

HEADNOTE:      The  petitioner   while  returning   from   Nepal   was intercepted by  the Customs  Officers in the morning of 20th November, 1984  and searched  in the presence of independent witnesses. From  his trousers’  pocket two pieces of foreign marked gold  in the  shape of round tablets weighing 373.800 gms. were  recovered and  seized under  the Customs Act. The petitioner was  arrested and  on interrogation  he  filed  a written statement  admitting the  search and the seizure. On an application made by him he was released on bail.      The second  respondent thereafter passed an order dated 11th April  1985 under  s. 3  of COFEPOSA  Act directing the detention of  the  petitioner.  The  representation  of  the petitioner was  rejected  by  the  Central  Government.  The advisory Board  opined that  there was  sufficient cause for the detention  of the  petitioner and the Central Government confirmed the  detention order  directing detention  for one year.      The petitioner  challenged the validity of the order of detention before  this Court  contending: (i) that the order of detention was based on a solitary incident and apart from this incident  there were no other incidents showing that he was habitually  smuggling gold,  (ii) that considerable time had elapsed  between the date of recovery of gold pieces and the detention order, and this long lapse of time showed that the detention  order was  vitiated by  malafides, and  (iii) that  the   detention  order   was  made   with  a  view  to circumventing or  by-passing the  criminal  prosecution  and that the  power of  detention cannot  be  used  to  subvert, supplant or substitute the punitive law.

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844      Dismissing the petition, ^      HELD :  1. Having  regard to the nature of the activity and the  circumstances in  which the  petitioner was  caught smuggling gold,  and the facts set out by him in his written statement, the  second respondent  was justified in reaching the  satisfaction   that  the   petitioner  was  engaged  in smuggling gold  and that  with a  view to preventing him, it was necessary to detain him. [847 E-F]      2.  Where  an  unreasonably  long  period  has  elapsed between the  date of  the incident and the date of the order of detention,  an inference  may legitimately  be drawn that there is  no nexus  between the  incident and  the order  of detention and  the order  of detention  may be  liable to be struck down  as invalid.  But there  can be no hard and fast rule as  to what  is the  length of  time  which  should  be regarded sufficient  to snap  the nexus between the incident and the order of detention. [848 A-B]      In the instant case, the lapse of time between the date of the  incident and the date of order of detention has been sufficiently  explained   by  the  detaining  authority.  No inference of malafides can, therefore, be drawn. [848 B-C]      3. The  object of  making  an  order  of  detention  is preventive while  the object  of a  criminal prosecution  is punitive. Even  if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention. If an order of detention is made only in order to bypass  a  criminal  prosecution  which  may  be  irksome because of  the inconvenience of proving guilt in a Court of law, it  would  certainly  be  an  abuse  of  the  power  of preventive detention  and the  order of  detention would  be bad. But  if the  object of making the order of detention is to prevent  the commission in future of activities injurious to  the  community,  it  would  be  a  perfectly  legitimate exercise of  power to make the order of detention. The Court would have  to consider  all the  facts and circumstances of the case in order to determine on which side of the line the order of detention falls. [848 F; 849 B-D]      In the  instant case,  the petitioner was caught in the act of  smuggling gold  and the  circumstances in  which the gold was  being smuggled  as also  the facts  set out in the written statement  of the  petitioner clearly  indicate that the petitioner  was engaged  in the  activity  of  smuggling gold. It,  therefore, cannot  be  said  that  the  order  of detention was passed by the second 845 respondent  with   a  view  to  subverting,  supplanting  or substituting the  criminal law  of the  land. The  order  of detention was  passed plainly and indubitably with a view to preventing the  petitioner from  continuing the  activity of smuggling and  it was, therefore, a perfectly valid order of detention. [849 D-F]      Subbharta v.  State of  West Bengal,  [1973] 3  SCC 250 relied upon.

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (Criminal)  No. 1122 of 1985.      (Under Article 32 of the Constitution of India)      Soli J.  Sorabji, A.K.  Nag and  K.D.  Prasad  for  the Petitioner.      N.C. Tulkdar, and R.N. Poddar for the Respondents.

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    The Judgment of the Court was delivered by      BHAGWATI, CJ.  This is  a writ  petition filed  by  the petitioner  for   a  writ   of  habeas  corpus  praying  for revocation of  the order  of detention dated 11th April 1985 passed  by   respondent  No.   2,  Joint  Secretary  to  the Government of  India, against the petitioner under Section 3 of the  Conservation of  Foreign Exchange  and Prevention of Smuggling Activities  Act 1974  (hereinafter referred  to as COFEPOSA Act).  We heard the writ petition on 18th September 1985 and after hearing the arguments advanced on both sides, we passed  an order  on the  same date  dismissing the  writ petition. We now proceed to give our reasons for making that order.      On the  basis of  information  received  by  them,  the Customs  Officers   at  Panitanki   Land   Customs   Station intercepted an  auto-rickshaw bearing  No.  WGY-9854  coming from Nepal  at about  8 a.m. in the morning of 20th November 1984.  There  were  four  occupants  in  the  auto-rickshaw, namely,  the   petitioner,  Raj  Kumar  Gupta,  Prem  Prasad Bothari, and  Akadeshi Bahadur. These four occupants as well as the  driver of  the auto-rickshaw  were searched  by  the Customs Officers  in the  presence of  independent witnesses and as  a result  of the  search, no  contraband goods  were found in the possession of the other three occupants and the driver of  the auto-rickshaw  but from  the  pocket  of  the trousers worn  by the  petitioner,  two  pieces  of  foreign marked gold  in the  shape of round tablets weighing 373.800 gms. and valued at 846 Rs.74760 were  recovered and  they  were  seized  under  the Customs Act.  The petitioner was immediately arrested and on interrogation, he  filed a written statement on the same day stating that he had been unemployed for a long time and that he was  introduced in  the business  of purchase and sale of foreign marked  gold by  one Prakash Pincha and that on 16th November 1984,  he left Kathiar bus and arrived in Kathmandu at 6 a.m. on 18th November 1984 and stayed at Kanji Lodge in Kathmandu and  as per  prior arrangement,  he contacted  one Dena Lal  Aggarwal on  Telephone No.  344889  and  Dena  Lal Aggarwal thereupon  came  to  Kanji  Lodge  along  with  the requisite quantity of gold and he took delivery of gold from Dena Lal  Aggarwal and paid him Rs. 70400 in Indian currency and thereafter  he left  Kathmandu  at  1800  hrs.  on  19th November 1984  reaching Kakarbatha  opposite Panitanki  Land Customs Station  at 7.30  a.m. on  20th  November  1984  and boarded auto-rickshaw  bearing No.  WGY-9854 which  later on picked up  the other  passengers and  ultimately  the  auto- rickshaw was  intercepted and  he was  searched resulting in the seizure  of two pieces of foreign market gold which were in the  pocket of  his trousers. The petitioner was produced before the  Sub-Divisional Judicial  Magistrate, Siliguri on 21st November 1984 and on an application made by him, he was released on  bail by  the Sub-Divisional Judicial Magistrate on 5th December 1984. The second respondent who is the Joint Secretary to  the Government  of India  thereafter passed an order dated  11th April 1985 under Section 3 of COFEPOSA Act directing that  the  petitioner  be  detained  and  kept  in custody in  the Central  Jail, Patna. The order of detention recited that  it was  passed with  a view  to preventing the petitioner from  smuggling goods.  The grounds  on which the order of detention was based were supplied to the petitioner immediately on  his arrest under the order of detention. The petitioner made a representation dated 17th May 1985 against the order  of detention  but the representation was rejected by the  Central Government on 23rd May 1985. The case of the

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petitioner was  placed before  the Advisory Board which gave the  opinion   that  there  was  sufficient  cause  for  the detention of  the petitioner  and on receipt of this opinion of the  Advisory Board,  the Central  Government by an order dated 6th  June 1985  confirmed the  order of  detention and directed that the petitioner be detained for a period of one year from  the date  of his  detention, namely,  23rd  April 1985. The  petitioner thereupon  preferred the  present writ petition challenging  the validity of the order of detention and seeking  a  direction  that  he  may  be  released  from detention.      Though several  grounds were taken in the writ petition only three  were seriously  pressed by  the learned  counsel appearing on  behalf of the petitioner. The first ground was that the order of 847 detention was  based on  the solitary  incident in which two pieces of foreign marked gold were recovered from the pocket of the  trousers of the petitioner on 20th November 1984 and apart from  this incident  there  were  no  other  incidents showing that  he was  habitually smuggling  gold. The second ground was  that considerable  time had  elapsed between the date when  he was found to be carrying two pieces of foreign marked gold  and the date of the order of detention and this long lapse  of time  showed that  the order of detention was vitiated by  malafides. And  the last  ground was  that  the order of  detention was made with a view to circumventing or bypassing the  criminal prosecution  instituted against  the petitioner and  the detaining  authority had not applied its mind to  the vital aspect that the power of detention cannot be used to subvert, supplant or substitute the punitive law. We do not think any of these three grounds can be sustained.      So far  the first  ground is  concerned, it  is obvious that  having  regard  to  the  nature  of  the  activity  of smuggling, an  inference could  legitimately be  drawn  even from a  single incident of smuggling that the petitioner was indulging  in   smuggling  of  gold  moreover.  The  written statement given by the petitioner clearly indicated that the petitioner was  engaged in the business of purchase and sale of foreign  marked gold  and that  this incident in which he was caught  was not a solitary incident. The facts stated by the petitioner  in his  written statement could legitimately give rise  to the inference that the petitioner was a member of  a  smuggling  syndicate  and  merely  because  only  one incident of  smuggling by  the petitioner  came to light, it did not  mean that  this was  the first and only occasion on which the  petitioner tried to smuggle gold. There can be no doubt that  having regard  to the nature of the activity and the  circumstances   in  which  the  petitioner  was  caught smuggling gold  and the  facts set out by him in his written statement, the  second respondent  was justified in reaching the  satisfaction   that  the   petitioner  was  engaged  in smuggling gold  and that  with a view to preventing him from smuggling gold, it was necessary to detain him.      Turning to  the second  ground of  challenge, we do not think that  the lapse  of time  between the  date  when  two pieces of  foreign marked  gold were  found on the person of the petitioner and the date of the order of detention was so unduly long  or that  the explanation for such lapse of time offered by  the respondents  was so  unsatisfactory that  we should draw  an inference  of malafides  on the  part of the detaining authority  in making  the order  of detention. The delay in  making the order of detention has, in our opinion, been satisfactorily explained by the time-chart set 848

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out as  Annexure R-I  to the counter affidavit filed by Shri A.K. Agnihotri  on behalf of the respondents. It is no doubt true that  where an  unreasonably long  period  has  elapsed between the  date of  the incident and the date of the order of detention,  an inference  may legitimately  be drawn that there is  no nexus  between the  incident and  the order  of detention and  the order  of detention  may be  liable to be struck down  as invalid.  But there  can be no hard and fast rule as  to what  is the  length of  time  which  should  be regarded sufficient  to snap  the nexus between the incident and the order of detention. We are of the view that here the lapse of  time between the date of the incident and the date of the order of detention has been sufficiently explained by the detaining  authority and  hence we  are not  prepared to draw the  inference of malafides merely because the order of detention happened  to be  made about  five months after the petitioner was  found carrying  two pieces of foreign marked gold.      The last  ground urged  on behalf  of the petitioner is also  equally  without  substance.  The  contention  of  the petitioner  was   that  criminal   prosecution   cannot   be circumvented  or   short-circuited  by   ready   resort   to preventive detention  and the  power of  detention cannot be used to  subvert, supplant or substitute the punitive law of the land.  The petitioner  urged that  no material  has been disclosed by  the respondents  to establish the existence of any exceptional  reasons which  would  justify  recourse  to preventive detention  in the  present case such as witnesses being afraid  to depose against the detenu in court or other genuine difficulties  in bringing  the culprits to book in a criminal court under the ordinary law of the land and in the absence of  such reasons  before the detaining authority, it was not  competent to  the detaining  authority to  make the order of detention by passing the criminal prosecution. This argument completely  overlooks the  fact that  the object of making an  order of detention is preventive while the object of a  criminal prosecution  is punitive.  Even if a criminal prosecution fails and an order of detention is then made, it would not  invalidate the  order of  detention, because,  as pointed out  by this  court in  Subharta v.  State  of  West Bengal, [1973]  3 S.C.C.  250, "the  purpose  of  preventive detention being different from conviction and punishment and subjective satisfaction  being necessary in the former while proof  beyond   reasonable  doubt  being  necessary  in  the latter", the  order of  detention would  not be  bad  merely because the  criminal prosecution has failed. It was pointed out by  this Court in that case that "the Act creates in the authority concerned a new 849 jurisdiction to  make orders  for  preventive  detention  on their subjective  satisfaction on  grounds of  suspicion  of commission in future of acts prejudicial to the community in general.  This   Jurisdiction  is  different  from  that  of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding  would therefore  not operate  as a  bar to  a detention order  or render  it malafide".  If the failure of the criminal  prosecution can  be no bar to the making of an order of  detention, a  fortiorari  the  mere  fact  that  a criminal prosecution  can be  instituted cannot operate as a bar against the making of an order of detention. If an order of detention  is made  only in  order to  by pass a criminal prosecution  which   may   be   irksome   because   of   the inconvenience of  proving guilt  in a court of law, it would certainly be  an abuse  of the power of preventive detention

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and the  order of  detention would be bad. But if the object of  making   the  order  of  detention  is  to  prevent  the commission  in   future  of   activities  injurious  to  the community, it  would be  a perfectly  legitimate exercise of power to  make the  order of detention. The Court would have to consider  all the  facts and circumstances of the case in order to  determine on  which side  of the line the order of detention falls.  Here the  petitioner was caught in the act of smuggling  gold and  the circumstances  in which the gold was being  smuggled as also the facts set out in the written statement  of  the  petitioner  clearly  indicate  that  the petitioner was engaged in the activity of smuggling gold and if that  be so,  it is not possible to say that the order of detention was passed by the second respondent with a view to subverting, supplanting  or substituting the criminal law of the land. The order of detention was plainly and indubitably with a view to preventing the petitioner from continuing the activity of smuggling and it was therefore a perfectly valid order of detention.      These were the reasons for which we sustained the order of detention and dismissed the writ petition. A.P.J.                                   Petition dismissed. 850