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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: ARVIND SHERGILL & ANR.

DATE OF JUDGMENT:       13/09/2000

BENCH: S. RAJENDRA BABU, J. & D.P. MOHAPATRA, J.

JUDGMENT:

J  U  D  G  M  E  N  T RAJENDRA  BABU,  J. :- L...I...T.......T.......T.......T.......T.......T.......T..J

       Leave granted.

   Harinder  Pal Singh Shergill, the husband of  respondent No.   1, was arrested on 3.8.1998 by the Customs Authorities on  the  suspicion  that  he was in  possession  of  foreign currency of 66217 US Dollars at Sahar International Airport, Mumbai  and a statement made by him under Section 108 of the Customs  Act  was  recorded.   For seizure  of  the  foreign currency  a Panchnama was drawn.  Then the said Shergill was produced  before the Chief Metropolitan Magistrate,  Mumbai, on  4.8.1998  who  remanded  him to  judicial  custody  till 10.8.1998.   Thereafter, the said Shergill was granted  bail on   14.8.1998   by  the   Additional   Chief   Metropolitan Magistrate, Mumbai.  Subsequently, on 17.11.1998 application filed  by  the  appellants for cancellation of the  bail  in respect  of  the said Shergill was dismissed.  On  the  same date  appellant  No.   2  passed   an  order  directing  the detention of the said Shergill in the custody of the Central Prison,  Nasik  and the grounds accompanying the said  order indicated  that the same was made under Section 3(1) of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) on the basis that  with a view to preventing him from smuggling of  goods in  future  it  was  necessary to make the  order.   In  the grounds  it was further stated that though the said Shergill was  found  to  have indulged in a  solitary  incident,  the organised  manner  in  which he indulged  in  such  activity reflected  his  potentiality and propensity to  continue  to indulge  in such activities in future and, therefore, it was necessary  to detain him so as to prevent him from smuggling the goods.  This was challenged by wife of the said Shergill by  a writ petition filed before the High Court even  before the   said  Shergill  was   apprehended  by  the   concerned authorities.   In the High Court on behalf of the appellants two  preliminary  contentions were raised  one, as  to  the jurisdiction  of  the  court and, other that it was  a  pre- detention   case  and,  therefore,   the  court  should  not interfere  with  the same.  The appellants also referred  to various  decisions  on this aspect of the matter.  The  High Court  held  against  the  appellants in  both  the  points. However,  in  the view we propose to take in the matter,  we consider   it  unnecessary  to   consider  the   preliminary questions raised in the case.

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   We turn now to the merits of the matter.  The High Court noticed that Section 3 of the COFEPOSA Act is a very drastic provision as also the stand of the respondents husband that his  possession  of  the said foreign  currency  was  valid. However,  the  High Court stated that it would not  like  to examine  the merits of the case at this juncture because the adjudication proceedings and criminal case arising under the Customs  Act  are  still pending.  The  High  Court  further observed as follows :-

   It  is  not  the case of the Union of  India  that  the husband  of  the petitioner earlier had been taking out  the currency  to the foreign lands.  Whether for a solitary act, even  if it is assumed for the sake of arguments as correct, would  it be proper on the part of the U.O.I.  to invoke the provisions  of  Section 3(1) of the COFEPOSA Act.   In  this view  of this Court, it may not be worthwhile as it  defeats the  very  object of the Act which is preventive in  nature. If the husband of the petitioner has committed a substantive offence,  that offence should be tried by a competent  court of  jurisdiction but if in the adjudication proceedings, the husband  of  the  petitioner is in position to  explain  the possession of the currency, it will have a direct bearing on the complaint which has been filed by the authorities before the  Chief Metropolitan Magistrate, Mumbai.  In the view  of this  court,  the  impugned order has been passed  in  haste without  application of mind as to whether the impugned  act attributed  to  the husband of the petitioner was, in  fact, with  the object of conservation and augmentation of foreign exchange.

   Therefore,  this  Court  is  of  the  opinion  that  the impugned  detention order, Annexure P-7 with the grounds  of detention, cannot be sustained in the eyes of law and has to be quashed and I order accordingly.

   The High Court has virtually decided the matter as if it was  sitting in appeal on the order passed by the  detaining authority.  Action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to  investigate  the question whether the  circumstances  of suspicion  exist warranting the restraint on a person.   The language   of   Section  3   clearly  indicates   that   the responsibility  for making a detention order rests upon  the detaining  authority who alone is entrusted with the duty in that  regard  and it will be a serious derogation from  that responsibility if the court substitutes its judgment for the satisfaction   of  that  authority   on   an   investigation undertaken  regarding sufficiency of the materials on  which such  satisfaction was grounded.  The court can only examine the  grounds  disclosed  by the Government in order  to  see whether   they  are  relevant  to   the  object  which   the legislation has in view, that is, to prevent the detenu from engaging  in  smuggling activity.  The said satisfaction  is subjective  in  nature and such a satisfaction, if based  on relevant  grounds,  cannot  be stated to  be  invalid.   The concerned authorities have to take note of the various facts including  the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in  respect of which the application for cancellation of the same  was made but was rejected by the court.  In this case, there  has  been  due application of mind by  the  concerned authority  to that aspect of the matter as we have indicated in  the  course of narration of facts.  Therefore, the  view

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taken  by  the High Court in the circumstances of  the  case cannot  be sustained.  However, the learned counsel for  the respondent submitted that the order of detention was made on 17.11.1998, whereas the writ petition was filed on 21.4.1999 and  order  of  stay  was  passed   on  the  same  date  and subsequently  that order continued till the disposal of  the matter  on 4.8.1999.  Thus, he submitted that the facts upon which  detention  had been ordered and the actual  detention not being effected till today, the nexus thereto has snapped and  in  the  light of the decision of this Court  in  Sunil Fulchand  Shah v.  Union of India & Ors., 2000 (3) SCC  409, it  would  not  be  appropriate for  this  Court  to  direct detention  of the husband of the respondent now.  A bench of Five  Judges of this Court examined this matter and majority of  Judges  held  that  a detenu need not be  sent  back  to undergo the remaining period of detention after a long lapse of  time when even the maximum prescribed period intended in the  order of detention has expired, unless there is still a proximate  nexus between the period of detention  prescribed when  the  detenu was required to be detained and  the  date when  the detenu is required to be detained pursuant to  the appellate  order and the State is able to satisfy the  court about  the  desirability of further or continued  detention. It  was  also made clear therein that where a long time  has not lapsed or the period of detention initially fixed in the order  of detention has also not expired, the detenu may  be sent  back  to  undergo  the balance  period  of  detention. Therefore,  in  the  present case, what we have to  look  is whether  any  long period has lapsed as it has  happened  in Sunil  Fulchand  Shahs case (supra) wherein the  petitioner was  directed  to be detained for a period of one year  with effect from 4.7.1986 and the said period of one year expired on  3.7.1987 and the matter was taken upon for hearing  only on  16.2.2000.   In  the circumstance, when  the  period  of detention  itself  had expired 13 years earlier,  then  this Court came to the conclusion as aforesaid.  However, this is not the position in the present case at all.  Husband of the respondent  evaded  arrest  as is obvious  and  obtained  an interim  order  from the High Court which was in force  till the disposal of the writ petition and thereafter on quashing of  the  detention order question of detention made did  not arise  now.   Therefore,  we do not think that it  would  be appropriate  to  state  that merely by passage of  time  the nexus  between  the  object  for which the  husband  of  the respondent is sought to be detained and the circumstances in which  he was ordered to be detained has snapped.   However, we  make it clear that if those circumstances did not exist, then  it  would be appropriate for the Government to  revoke the  order of detention and, if still certain  circumstances as  apprehended in the order of detention exist, it will  be open  to  the Government to enforce the same.   Making  this position clear, we allow this appeal and set aside the order made by the High Court.