JUDGMENT
V.K. Tahilramani, J.
1. The petitioner who is the uncle of detenu, has challenged in this writ petition the order of detention passed against the detenu Sushil Kumar Purshottamdas Daryani. The said order of detention dated 5th April, 2003 has been issued under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the “COFEPOSA Act) by the Principal Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, Mumbai and detaining authority.
2. The facts leading to the detention of the detenu are that:
On 6th January, 2003 the detenu was proceeding to Dubai by Air India Flight No. AI-729. On account of suspicion, the detenu was questioned by the Customs authorities whether he was carrying any contraband items to which he replied in the negative. Thereafter, the detenu was brought back to the Customs Enclosure at the departure area for personal search and examination of his checked in baggage. Two panch witnesses were called and again detenu was questioned whether he was carrying any currency or contraband to which, he replied in the negative. The personal search of the detenu did not yield anything. However, on search of the checked in baggage, in his suitcase US$ 15000 equivalent to Rs. 7,06.500/- was found concealed in two trousers. Thereafter, the statement of detenu came to be recorded under Section 108 of the Customs Act. 1962 and he came to be arrested. Thereafter, the detenu filed an application for bail and he came to be granted bail by an order dated 8th January, 2003. Thereafter, the papers pertaining to the detenu were forwarded to the detaining authority and on 5th April, 2003 the order of detention under Section 3(1) of the COFEPOSA Act, came to be issued against the detenu with a view to preventing the detenu in future from smuggling goods and acting in a manner prejudicial to the conservation of foreign exchange.
3. The order of detention and the grounds of detention both dated 5th April, 2003 came to be served upon the detenu on 28th April, 2003 along with accompanying documents.
4. The learned counsel for the detenu has challenged the order of detention passed against the detenu Sushil Kumar Daryani on three grounds. Firstly, the learned counsel for the detenu has submitted that the order of detention has been passed with a view to prevent the detenu in future from smuggling goods and acting in a manner prejudicial to the conservation of foreign exchange, for which no material was placed and none whatsoever existed wherefrom the detaining authority could have drawn a conclusion that the alleged activity of the detenu was prejudicial to the “conservation” of foreign exchange. The learned counsel for the detenu has further submitted that the detaining authority has drawn a wrong conclusion that the activity of the detenu was prejudicial to the “conservation” of foreign exchange. It is his contention that the activity of the detenu would not affect the “conservation” of foreign exchange but it would affect the augmentation of foreign exchange. Thus, it is contended that the detaining authority has not applied its mind to the facts of the present case and has wrongly come to the conclusion that the detenu was acting in a manner prejudicial to the conservation of foreign exchange and has thus, wrongly passed the order of detention to prevent the detenu from acting in a manner prejudicial to the conservation of foreign exchange.
5. In reply to the above ground, in paragraph 10 of the affidavit filed by the detaining authority, it is denied that no material was placed before the detaining authority and none whatsoever existed wherefrom the detaining authority could have drawn a conclusion that the alleged activity of the detenu was prejudicial to the conservation of foreign exchange. It is submitted that the detenu was travelling from India to Dubai and while going abroad he was carrying with him the foreign currency without any proper permission or authorization. It is stated that the detenu was taking foreign currency out of India which activity is detrimental to the conservation of foreign exchange.
6. The learned counsel for the petitioner has submitted that the expression “conservation” and “augmentation” are different and distinct and the case of the detenu would be covered by “augmentation” and not “conservation” of foreign exchange. In support of his submission, he has placed reliance on an unreported decision of this Court in the case of Abdul Raheman Moinudden v. Union of India and Ors., decided on 16th March, 1990 (Coram : M.L. Pendse and D. J. Moharir, JJ.). In the said decision, it has been observed that conservation and augmentation are different and distinct. We are in total agreement with the said observation. However, looking to the facts of the present case, we are of the opinion that the activities of the detenu are such that they affect the conservation of foreign exchange. From the facts of the present case, it is dear that at the time of interception of the detenu at the Airport, he was trying to smuggle 15000 US$ out of India. This act on the part of detenu is clearly one which affects the conservation of foreign exchange of the country and as such, we find that the detaining authority has rightly arrived at the conclusion that it was necessary to pass an order of detention against the detenu to prevent him from acting in a manner prejudicial to the “conservation” of foreign exchange. Thus, the above contention raised on behalf of the petitioner, cannot be accepted.
7. The second ground of challenge raised on behalf of the petitioner is that the impugned order of detention suffers from non-application of mind on the part of the detaining authority inasmuch as the detaining authority has failed to consider that the passport of the detenu was in custody of the Customs Department and therefore, there was no question of the detenu travelling to any foreign country in future to indulge in the alleged prejudicial activities. Thus, on account of this non-application of mind the detention order is rendered null and void. In support of this contention, reliance has been placed on the decision in the case of Rajesh Gulati v. Government N.C.T. of Delhi and Anr. reported in 2002 (6) Supreme 37. In the said decision the contention was raised that since the detenue was in custody and his passport was seized, in such case, it would not be possible for the detenu to indulge in similar activities. It is pertinent to note that in the said case the detenu was in custody and due to the fact that he was in custody he was prevented from indulging in similar activities. In addition to being in custody the passport of the detenu was seized, in such case, it was observed that there was no material before the detaining authority to come to the conclusion that even though the detenu was in custody and his passport was seized, he would still be able to continue with his activities. Thus, in the facts of the said case, the detention order came to be quashed. One main distinguishing feature in respect of the present case and the case of Rajesh Gulati is that in the present case the detenu is not in custody but he has been granted bail, thus, in our view, seizure or retention of his passport would not be enough to cripple his smuggling activities and we say so for the reasons stated hereinafter.
8. The learned A.P.P. has pointed out a latter decision of the Apex Court on the point of seizure of passport wherein the decision in the case of Rajesh Gulati (supra) had been considered. The said decision has been rendered in the case Sitthi Zuraina Begum v. Union of India and Ors. reported in 2002 AIR SCW 4807. In para Nos. 8 and 9 of the decision in the case of Sitthi Zuraina (supra), it has been observed thus :
“8. Lastly, it is urged on behalf of the detenu that on a solitary instance without any propensity to evade duty should not be made a ground for detention and particularly when his passport had been seized on the same day of his arrest, there is no chance of his committing further acts of smuggling for which he has now been detained. In this context, the learned counsel placed reliance on the decision in Rajesh Gulati v. Government of NCT of Delhi and Anr. 2002 (6) SCALE 142, to contend that retention or cancellation of passport will cripple the smuggling activity inasmuch as there is no material to show that even in the absence of a passport he would be able to continue the activities in respect of which he is detained: that such an attempt would be merely speculative based on no material.
9. The stand of the department is that whether there can be detention on a solitary instance would depend on the facts and circumstances of each case, on the magnitude of the case and other attendant circumstances. In the present case, it is stated that detenu’s passport disclosed that he had made several trips abroad and he was not a man of such affluence as to make so many trips out of the country unless they be in the context of his business activities. Therefore, considering the number of trips he had made out of the country, the volume of goods seized now and the prima facie mis-declaration of goods seized now and the prima facie mis-declaration of value, an inference can be drawn that the detenu was a part of bigger network in bringing the goods for commercial distribution inside the country by avoiding the payment of duty. In this background, absence of passport will not be a handicap to the detenu, for, his activities in the present case in which the fact situation is different from the one available in Rajesh Gulati’s case. Nor can we confine the meaning of the word ‘smuggling’ only to going out of country and back with goods which are contraband or to evade duty but may encourage such activities as well by dealing in such goods.”
The learned A. P. P, has submitted that the decision in the case of Rajesh Gulati (supra) has been considered in the decision of Sitthi Zuraina Begum (supra) wherein it has been held that the absence of passport will not be a handicap to the detenu for his activities. In the said case, it has been further observed thus :
“Nor can we confine the meaning of the words “smuggling” only to going out of country and coming back with goods which are contraband or to evade duty but may encourage such activities as well by dealing in such goods”.
Thus, it is clear that for a person to indulge in smuggling, it is not necessary that he himself has to go out of the country with smuggled goods or come back to the country with smuggled goods, for a person to indulge in smuggling, it is not necessary that he has to himself travel in and/or out of the country, thus it is not necessary that he should have a passport. Even without a passport a person can indulge in smuggling. Therefore, in our view, seizure of passport cannot stop a person from smuggling goods.
9. In the present case, it is seen that besides the present incident wherein the detenu came to be intercepted while carrying US$ 15000, prior to that also the detenu has made two other trips to Dubai. In one of the said trips, he was found to be involved in the smuggling of eight gold bars and other goods. Besides this, in his affidavit in reply the detaining authority has rightly observed that even if the passport of the detenu has been seized by the Customs authorities, the smuggling activities may be carried out with the help of forged documents or by obtaining fresh passport by giving new address and also that such prejudicial activities can be carried out even without a passport. In the present case, the detenu was on bail and in our view, the seizure of his passport would not be an impediment to prevent the detenu from smuggling goods and acting in a manner prejudicial to the conservation of foreign exchange. Thus, in view of the above, we cannot accept the submission made on behalf of the petitioner.
10. The last contention which has been raised on behalf of the petitioner is that though the show cause notice was placed before the detaining authority however, the reply to the said show cause notice was not placed before the detaining authority. It is contended that the reply to the said show cause notice is a vital document and as such, it ought to have been placed before the detaining authority. It is submitted that as a vital and material document i.e. reply to the show cause notice was not placed before the detaining authority, it has affected the subjective satisfaction of the detaining authority.
11. The above ground has been replied by the detaining authority in para 12 of his affidavit. In the said para in respect of the Show Cause Notice, it is briefly stated that the detention order has been passed on the basis of the seizure which took place on 6th January, 2003 and the statement of the detenu recorded under Section 108 of the Customs Act. A reference has been made to the earlier activities of the detenu in the year 2000 as disclosed by the detenu by way of passing reference, however, no reliance has been placed on the earlier incident in the year 2000 and the same has not been included as a ground of detention for the purpose of issuing the present order. The learned A.P.P. has submitted that in the grounds of detention, a passing reference has been made to the earlier activities of the detenu in the year 2000 and the said show cause notice related to the earlier activities of the detenu in the year 2000. The detaining authority has made it clear that he has not relied upon the earlier incident in the year 2000 to issue the order of detention. The learned A.P.P. has submitted that the present order of detention, has been passed only on the basis of the seizure which took place on 6th January, 2003 and no reliance has been placed on the earlier incident in the year 2000 in which the detenu was involved. The detaining authority has made only a passing reference to the show cause notice relating to the said incident in the year 2000 to complete the narration of facts relating to the incident in the year 2000. It is submitted that as the detention order has not been passed on the basis of the incident which occurred in the year 2000, the show cause notice and the other documents relating to the said show cause notice including the reply to the show cause notice would not be vital and material documents or relevant documents in the present case. We find much force in this submission made by the learned A.P.P. It is obvious that when the detention order has been passed on the basis of the incident which occurred on 6th January, 2003, any document relating to the earlier incident to which only a passing reference has been made would not be a vital or material document. Hence, non-placement and/or non-consideration of any such document in particular the reply to the show cause notice, would not affect the subjective satisfaction of the detaining authority. Thus, we find no merit in the above contention raised on behalf of the petitioner.
12. Thus, no case is made out for interference with the order of detention passed against the detenu under Section 3(1) of the COFEPOSA Act. In the result, the writ petition fails and is dismissed. The detention order bearing No. PSA 1003/7/SPL 3(A) dated 5-4-2003 issued against the detenu by the Principal Secretary to the Government of Maharashtra, Home Department, Mantralaya, Mumbai is upheld. The trial Court shall not be influenced by any observations made in this judgment while deciding the trial.
Parties be given copies of this order duly authenticated by the Sheristedar of this Court.
Issuance of certified copy of this order is expedited.