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Judgment
V.S. Sirpurkar, J.—The order dated 12-03-2003, passed by the State of Tamil Nadu, directing the preventive detention of Thiru R.
Veerapandian, son of Ramasamy, under Sec. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(Central Act 52 of 1974), in short ''COFEPOSA'', is challenged in this petition, which has been filed by the detenu himself.
This detenu was intercepted while he was on his way to Singapore and was in the process of boarding the flight SQ 409. On suspicion, he was
intercepted at the aerobridge and his search resulted in recovery of 300 U.S. Dollar notes in the denominations of US$100s and 50 U.S. Dollar
notes in the denominations of US.$50s and 46 EURO currencies in the denominations of 50s. He was thus carrying in all US$31300 and EURO
Currencies 200 equivalent to Indian Rs. 14,78,000/- approximately. All this was recovered from the bag that he was carrying. He was questioned
and his confession statement was recorded wherein he admitted that he had visited Singapore for 40 times and when he had gone to Anna
International Airport on 1-2-2003 with one handbag, a person called Mohamed Ismail approached him and gave him two newspaper-covered
packets and told that it contained foreign currency and that in case he takes the same to Singapore and gives it to a person called Rabik, he would
be given Singapore $150 as remuneration. He had, therefore, hidden the aforementioned packets in his bag without declaring the same before
proceeding to the aircraft.
A prosecution was launched against him for offences under Sec. 47(2) and 6(3)(g) of Foreign Exchange Management Act, 1999 read with Sec.
11(2)(u) of the Customs Act, 1962. It was found from his past record that he was subjected to the offence proceedings in O.S. No. 765 dated
30-5-2002 for having brought 12 cell phones valued at Rs. 30,000/- and O.S. No. 1390 dated 21-10-2002 for having brought 3 cell phones
valued at Rs. 20,000/- and it was deduced that he was a habitual offender. It was in that view that he was arrested and produced before the
Additional Chief Metropolitan Magistrate (Economic Offences) I, Egmore and was remanded to judicial custody till 14-2-2003 and on this basis
ultimately the order of preventive detention came to be clamped against him fearing that he might come out on bail and once he was released on
bail, he would take up the nefarious activities again.
Shri B. Kumar, learned senior counsel for the petitioner pressed into service the following points:
4.1. That the detaining authority was guilty of non-application of mind and ordering the detention without there being any material. Learned counsel
also reiterated that an attempt was made in this case to support the grounds by few deductions which had no supporting material and, therefore,
the whole order was vitiated.
4.2. In support of his first argument, learned counsel invited our attention to paragraph (ix) at internal page 4 of the grounds in which it was
reiterated that the counsel for the detenu had filed a bail application before the Additional Chief Metropolitan Magistrate (E.O.)II and that the said
application was dismissed by the same court on 11-2-2003. Our attention was also invited to the contents of paragraph (x) wherein it is stated that
the Customs Department have filed a memorandum dated 10-2-2003 in the Court of Additional Chief Metropolitan Magistrate (E.O.)II Chennai
for correcting the typographical error in the remand report. Learned counsel was at pains to point out from the record that from the documents
which were supplied to the detenu, through a booklet, it is suggested that the proceedings were pending before the Additional Chief Metropolitan
Magistrate (E.O.)I, Chennai and it is not Additional Chief Metropolitan Magistrate (E.O.) II. From this learned counsel contends that this is a
typical non-application of mind on the part of the detaining authority.
As against this, learned Public Prosecutor relies on the counter-affidavit in which it is reiterated at paragraph 8 that the mentioning of Additional
Chief Metropolitan Magistrate (E.O.)II was a typographical error. Learned Public Prosecutor pointed out that such typographical error could not
suggest that there was a complete non-application of mind on the part of the detaining authority particularly when the proceedings were in fact
pending before the Additional Chief Metropolitan Magistrate (Economic Offences)I, Chennai.
In our view also, this would be a mere typographical error and nothing turned particularly because in paragraph 6 of the grounds, the court is
correctly mentioned as Additional Chief Metropolitan Magistrate (Economic Offences)I, Egmore. Therefore, a reference in paragraphs (ix) and (x)
to Additional Chief Metropolitan Magistrate (Economic Offences)II was obviously a typographical error and nothing has turned upon it. These
were the facts ''incidentally'' stated and not in the nature of the ''grounds'' and, therefore, such a typographical error would be of no consequence
particularly when there is no prejudice shown or pleaded by the detenu. The first contention is, therefore, rejected.
By way of his second submission, which was the main submission of the learned counsel, learned counsel invited our attention to paragraph 6
wherein it is mentioned:
The State Government are also satisfied that on the facts and materials mentioned above, if you are released on bail, you may likely to indulge in
activities such as harbouring persons engaged in smuggling goods; abetting the smuggling of goods; engaging in transporting/concealing/keeping the
smuggled goods, etc. though your passport has been impounded and ...
Learned senior counsel is at pains to point out that what was alleged against the detenu was the seizure of foreign currency from him and further it
was reiterated in paragraph (v) that he was engaged in two offences under the Customs Act and it was deduced therein that from that it was
obvious that the detenu was a habitual smuggler.
Learned counsel urges that the deductions made by the concerned detaining authority in paragraph 6 had absolutely no nexus or connection with
the incident in question and there was no material whatsoever in support of the deductions by the detaining authority that the detenu was likely to
indulge in harbouring persons engaged in smuggling goods; abetting the smuggling of goods; engaging in transporting/concealing/keeping the
smuggled goods, etc. Learned counsel carries on his argument in the same thread and says that these acts were probably mentioned by the
detaining authority only to support the main ground, which is based on the incident dated 1-2-2003 when he was actually apprehended. According
to the learned counsel, such a course was impermissible for the detaining authority more particularly, when the acts mentioned in paragraph 6 could
not be justified on any material and in fact no such material was ever to be found since the detaining authority had tried to support his deduction by
alleging certain acts for which there was no material. The whole order was liable to be vitiated on account of non-application of mind. In support of
his contention, learned counsel invited our attention to the impugned order dated 12-3-2003 wherein it is mentioned that the detention order was
passed with a view to preventing the detenu from indulging in smuggling activities in future. Therefore, according to the learned counsel, the
mentioning of the additional reasons in paragraph 6 only to support the main reasons reiterated in the order dated 12-3-2003 was impermissible
for the authorities.
The contention appears to have been based on the Supreme Court decision in G.M. Shah Vs. State of Jammu and Kashmir, and more
particularly from the contents of paragraph 8 thereof. For better understanding the contention, we would reproduce the said paragraph:
It is thus clear that none of the grounds supplied to the detenu falls within the scope of clause (a) of Section 8(3) of the Act which defines the
expression ''acting in any manner prejudicial to the security of the State''. It is further seen that even though it is stated in the grounds that the
District Magistrate was of the view that the detnu remaining at large was prejudicial to the security of the State also, he did not make the order with
a view to preventing him from acting in any manner prejudicial to the security of the State. A combined reading of the order of detention and the
grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the
security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to
support the order of detention by stating in the course of the grounds that by the detenu remaining at large, the security of the State was likely to be
prejudiced.
Learned counsel tried to draw the parallel with the case in hand on the basis that in this case, though the detaining authority had sought to
detain the detenu with a view to preventing him from smuggling goods in future and for that purpose, inferred that he was a habitual smuggler, since
there was no material to support this inference, the detaining authority had sought to support his inference and the order of detention by making
some statements in the nature of inferences which were not supportable with any material whatsoever and in the process, therefore, the whole
detention order is vitiated.
The contention is extremely attractive but, lacks substance. In the aforementioned Supreme Court judgment, an order came to be made for the
detention under the powers provided by Sec.8 of the Jammu and Kashmir Public Safety Act. In paragraph 5, the Supreme Court noted the
relevant portion of the section and also noted that it was stated in the order of detention that it had been passed with a view to ''preventing the
detenu from acting in any manner prejudicial to the public order'' while, in the last paragraph of the grounds furnished, it was stated that the
detenu''s remaining at large would be ''prejudicial to the maintenance of public order and also to the security of the State''. The Supreme Court then
took note of subsection (3) of Sec.8 wherein the expression ''acting in any manner prejudicial to the security of the State'' was defined as making
preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force to overthrow or
overawe the Government established by law in the State. The Supreme Court further noted that Sec.8(3)(b), which defined the expression ''acting
in any manner prejudicial to the maintenance of public order'' and went on to note further that there was a distinction between the two expressions.
While in case of the former, the object of making the preparation or instigating or abetting the use of force should be with a view to overthrow or
overawe the Government established by law in the State, in case of the latter, the object of the acts mentioned should be the disturbance of the
public order. The Apex Court then noted that in the detention order it was stated that it was made with a view to preventing the detenu from acting
in any manner prejudicial to the maintenance of public order yet, in the grounds furnished to him what was stated was different and it was to the
effect that the detenu remaining at large was prejudicial to the maintenance of public order and also to the security of the State.
The Supreme Court then referred to paragraphs (1), (3), (5), (6) and (7) and came to the conclusion that there was no reference to any
attempt made by the detenu to use force to overthrow or overawe the Government established by law in the State. The Court also noted that
paragraphs (2), (4) and (8) were also no different. The Supreme Court, therefore, came to the conclusion that the aforementioned paragraph did
not in any manner suggest the detenu''s acting in any manner prejudicial to the security of the State because, the allegations made in those
paragraphs could not be considered as an attempt to overthrow or overawe the Government established by law. The Supreme Court also took
note of paragraph (4) and came to the conclusion that the contents in paragraph (4) could not be considered as an act prejudicial to the security of
the State. The Supreme Court, therefore, came to the conclusion that the grounds there were vague in so far as the question of the security of the
State was concerned. The Supreme Court then gave a clear finding that none of the grounds supplied to the detenu fell within the scope of clause
(a) of Sec.8(3) which defined the expression ""acting in any manner prejudicial to the security of the State"". The Court then pointed out that though
it was so stated in the grounds, the District Magistrate had not made the order with a view to preventing the detenu from acting in any manner
prejudicial to the security of the State perhaps, because the District Magistrate did not have the material relevant to the security of the State on
which he could act and even if he had any information regarding those grounds, he did not propose to act on it. Instead, he supported the order of
detention by stating in the course of grounds that by detenu remaining at large, the security of the State was likely to be prejudiced.
We have deliberately referred to the grounds in that case in details as was done by the Supreme Court because, on facts, the present case
sharply differs from G.M. Shah case, cited supra. While the Supreme Court specifically came to the conclusion on facts that there was no material
displayed by the detaining authority in that case to support his inference that the detenu was acting in the manner prejudicial to the security of the
State, in the present case, however, there is ample material of which, a proper notice has been given to the detenu to reach an inference that the
detenu was liable to be prevented from smuggling goods in future. What is stated in paragraph 6 is, in our opinion, not for supporting the inference
drawn in paragraph 2 where the State Government has mentioned as follows:
From the above materials, the State Government are satisfied that you have indulged in smuggling goods.
Therefore, the detaining authority had first on the basis of the relevant material came to the conclusion that the detenu was a smuggler as he was
involved in smuggling out foreign currencies.
It has to be noted that the term ''smuggling'', which is defined in Sec. 2(39) of the Customs Act, 1962, takes into its sweep the smuggling of the
currency and negotiable instruments also. That would be clear from the definition of the term ''goods'' in Sec. 2(22) of the Customs Act. It is also
clear from the provisions of COFEPOSA that the term ''smuggling'' as defined in Sec. 2(e) of the COFEPOSA have the same meaning with its
grammatical variations and cognate expressions as in Sec. 2(39) of the Customs Act. It has been pointed out by the detaining authority here that
the detenu had admitted the smuggling out the goods like the foreign currencies and, therefore, was guilty of smuggling. The need to prevent him
from smuggling in future has been realised by the detaining authority on account of the fact that in the same year, on 30-5-2002 and on 21-10-
2002 also, the detenu had engaged himself in the smuggling activities. Therefore, in so far as the main ground in this detention order was concerned
to the effect that the detenu was smuggling goods, there was no dearth of material nor could it be said that the grounds in support of that inference
were in any manner vague or unexplained. What was stated in paragraph 6 was only by way of the natural inference. It will be seen that abetting
the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods or dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping smuggled goods or harbouring persons engaged in smuggling goods or in abetting the smuggling
of goods are the further acts for preventing which, there is a power of detention in the Central Government or the State Government. Once the
detaining authority had reached the conclusion that the detenu was smuggling goods and there was a need to prevent him from smuggling the goods
in future, if the detaining authority further expressed his apprehension that if released on bail, the detenu was likely to do the other activities
described in Sec. 3 besides smuggling the goods, in our opinion, there would be no question of there being any prejudice to the detenu, nor would
this in any manner vitiate the subjective satisfaction and the inference reached by the detaining authority for which the detention order has been
passed. This is the main differentiating factor in the aforementioned decision in G.M. Shah case, cited supra, and the presence case.
In G.M. Shah case, cited supra, the Supreme Court found that there was no material to hold that the detenu was acting against the security of
the State and, therefore, in order to support and aid to that inference, the detaining authority had also alleged that he was acting prejudicial to the
public order while, in the present case, clear materials are available in support of the first inference that the detenu was engaged in smuggling goods
and his previous history suggested that he was continuing his nefarious activities of smuggling in future also which may include the other activities
allied to the smuggling of the goods. Merely the mentioning of those allied activities would not by itself in any way invalidate or affect the first
inference that the detenu was smuggling the goods and was, therefore, liable to be preventively detained. Once this position is clear, there will be
no question of the detention in this case becoming invalidated.
Learned counsel also tried to draw our attention to some other decisions wherein Sec. 5(a) of the COFEPOSA was considered. It was tried
to be suggested that Sec. 3 would be of no consequence where the detention is ordered on a solitary incidence and on a singular ground. We do
not wish to rely on Sec. 3 of COFEPOSA at all because, in our opinion, the ground on which the detention is ordered can be justified as having
enough material in its support. Therefore, we need not make reference to the cases cited by the learned counsel in support of his contention relating
to Sec. 3 of COFEPOSA.
In short, we do not find any reason to interfere with the detention order on the basis of the contentions raised before us.
No other ground was pressed into service before us.
The writ petition is devoid of merits. It is dismissed.