JUDGMENT
Shivaraj Patil, J.
1. These two writ appeals are directed against the order dated 10-8-1998 made by the learned single Judge in W. P. Nos. 6871 and 6872/98.
2. The appellants filed Writ Petitions 6871 and 6872/98 seeking writ of Mandamus forbearing the respondents from in any manner implementing the order of detention passed by them pursuant to the occurrence that had taken place on 21-12-1994. The learned single Judge, after hearing the learned counsel for the parties, by the common order under appeal, dismissed both the writ petitions. Hence these writ appeals are filed.
3. In brief, the facts leading to the filing of these writ appeals, are as follows :-
The appellants stale that the orders of detention have been already passed against them under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, “COFEPOSA” act). It is not disputed that the appellants have not so far been available to the detaining authority and according to the respondents they are absconding. In this view the writ petitions are filed at the pre detention stage for the relief as stated above. A common counter affidavit has been filed by the first respondent, slating that the detention orders have in fact been passed taking into consideration the activities of the appellants, and more particularly to prevent them from continuing those activities in future.
4. The learned single Judge has narrated the facts in detail relating to the incident dated 21-12-1994 and subsequent events. Hence we do not propose id repeat them. However, we state the facts briefly to the extent they are relevant to decide these appeals.
5. One Kannan, Custom House Agent, filed a Bill of entry on 21-12-1994 showing the name of importer as M/s. Sargam Enterprises, 53, HI Main Road, Jawahar Nagar, Madras-82. The Customs Department, on enquiry, found that the address of Sargam Enterprises given in the said bill of entry is fictitious, and even no person, shown as Somasundaram – Proprietor, was there; it was further found that the representation for import and export of goods originally issued by JDGFT, Delhi was cancelled in November, 1994; that the bank account of Sargam Enterprises was with the Punjab National Bank, Park Town Branch, Madras, from where it was discovered that the account of Sargam Enterprises was used to be operated by one S. Somasundaram who was introduced by one Kamalesh M. Sanghvi, and the said Sanghvi in turn was introduced by one Sadhanandha Pillai; Kamalesh M. Sanghvi and Sadhananda Piliai have not been traced out.
6. In the statement of Mulvan Trai v. Sanghvi father of Kamalesh M. Sanghvi, it came out that Kamalesh Sanghvi happened to be an employee of Ishwarlal Surana (writ petitioner in W. P. No. 6871/98), and that the whereabouts of Ishwarlal Surana were not known; it was further stated that the material available against Raichand G. Mardia (petitioner in W. P. No. 6872/98) was much less, when compared to the material available against Ishwarlal C. Surana.
7. The appellants, in the affidavit filed in support of their writ petitions, state that they were summoned by the Customs Department under Section 108 of the Customs Act and their statements were recorded on 25-5-1995 and 26-5-1995, and that both the statements were exculpatory; show cause notices were issued to them under Section 121 of the Customs Act, and the adjudicating authority levied a penalty of Rs. l6,00,000/- on each of the appellants while a penalty of Rs. 1,00,000/- was imposed on the firm Sargam Enterpricses. The Customs authorities found that they were the real importers of the consignments ‘Gambler’ in which instead of-Gambier the foreign made ball bearings were concealed.
8. The appellants filed appeal bearing Nos. 317 and 372 of 1996 before the Customs, Central Excise and Gold (Control) Appellate Tribunal (for short ‘CEGAT’). The appellants were heard by a Division Bench of CEGAT. Because of disagreement between the members, and as they arrived at contrary conclusions, the matter was referred to a third member, who held that the respondents wore dot responsible and not involved in smuggling, agreeing with one of the members of the provision Bench. Ultimately the Judgment of the CEGAT by majority of members was that the appellants were not liable for any penalty.
9. The appellants, taking the Judgment of the CEGAT as the basis, in the affidavit filed in support of the writ petitions, submitted that they were not responsible or concerned with the alleged act of smuggling said to have taken place on 21-12-1994 and as such no penalty was imposed against them, and hence such evidence and material, gathered by the Customs Department against the appellants were not acceptable even to the Tribunal, so in law, there was no material to pass a preventive detention order. It was also the case of the appellants that the detention order originally passed against them could have no validity, particularly in view of the subsequent events like the passing of the order by the CEGAT; the (Hidings recorded by the CEGAT go to show that she Department proceeded against wrong persons, and hence it was a clear case of mistaken identity. Hence strongly relying on the findings of fact recorded by the CEGAT, the appellants asserted that there could not be any valid order of detention on the materials placed before the Customs Authorities and the CEGAT. The appellants in the background of the facts of the case, heavily relied on the decision of the apex Court in “Additional Secretary to the Government of India v. Alka Subash Gadia” .
10. As already stated above, the learned single Judge, after considering the rival submissions made on behalf of the parties, by the common order under appeal, dismissed both the writ petitions.
11. Shri B. Kumar, learned senior counsel for the appellants in both these appeals, reiterated before us, the submissions made before the learned single Judge, and cited few decisions in support of his submissions. The principal contention and the thrust of the submissions of the learned counsel for the appellants was that when the CEGAT arrived at the conclusion that the appellants were not involved in the incident, and in the absence of any other material, the detaining authority could not have passed orders of detention against the appellants on the same material; this being the position no prosecution could be launched against the appellants in Criminal Courts where the guilt of the appellants has to be proved beyond reasonable doubt; further, before the Customs Authorities and the CEGAT, strict rules of evidence were not applicable in relation to receiving the documents for consideration as evidence; but in the criminal case there is restriction for admissibility of documents, and evidence; if the appellants, on the same material, could be acquitted, no orders of detention could be passed against them on the same material. According to the learned counsel, the learned single Judge has failed to properly consider these aspects. The learned senior counsel for the appellants also submitted that the learned single Judge was not right in holding that the grounds of detention were not produced and as such the issue could not be decided in the light of “Alka Subash Gadia” case of the Apex Court aforementioned. The learned single Judge was also not right in taking a view that the dissenting opinion of a member of CEGAT could not be wiped out.
12. Shri Shanmugasundaram, learned Public Prosecutor made submissions supporting and justifying the impugned order in these appeals passed by the learned single Judge. He straight-away submitted that the standard of proof required to establish guilt of the accused in a criminal case, is that it should be proved beyond reasonable doubt. But, it cannot be equated to the requirement in passing an order of detention by the competent authorities; orders of detentions can be passed even on suspicion and on subjective satisfaction of materials, of the detaining authorities, to prevent the activities prejudicial to the community in general; the appellants have been absconding and have been avoiding their detention. According to him, the appellants cannot come within any one of the five situations stated in “Alka Subash Gadia” case, to maintain their writ petitions at pre-detention stage. He pointed out to few portions in the order of CEGAT to show that only benefit of doubt was given to the appellants and that there is no categorical finding that the appellants were not at all concerned or involved in the incident dated 21-12-1994. He also relied on some decisions in support of his argument.
12. We have carefully considered the submissions made by the learned counsel for the parties.
13. At the end of the arguments, we asked the learned senior counsel for the appellants, whether there is any authority or decision on the point that after the Tribunal passes an order on the basis of the materials placed before it, on the same material, assuming it to be so, the detaining authorities cannot pass an order of detention. He fairly submitted that there is no direct authority on the point. He submitted that what can hold good in regard to criminal prosecution, must very well, apply to the detaining authorities in passing the orders of detention.
14. We think it is proper to state here itself that the object of prosecution of a person in criminal Court is punitive, and the purpose of passing orders of detention is intended to be preventive. In the criminal Court the burden is placed on the prosecution to establish the guilt of an accused beyond reasonable doubt, whereas the detaining authorities can act on the subjective satisfaction of the materials, and pass orders in order to prevent the activities prejudicial to the community in general, of the persons to be detained. This being the clear position, we find it difficult to agree with the submissions of the learned senior counsel for the appellants that if the appellants could not be prosecuted and punished on the same materials which were placed before the CEGAT, that material was not good enough to pass orders of detention, assuming it as pointed out by the learned senior counsel, from the common counter affidavit filed by the respondent No. 1, that there was no other material. We are expressing this view only for the purpose of these appeals, looking to the scope of the writ petitions filed at the pre-detention stage. It is a different matter if the appellants are to challenge the orders of detention, after detention on the basis of the grounds given to them for their detention. The view expressed by us shall not prejudice the case of the appellants at that stage, as at that stage the matters are to be disposed of on merits and in accordance with law, taking into consideration the grounds of detention and materials placed.
15. Since none of the decisions cited by the learned senior counsel for the appellants is directly on the point that no order of detention can be passed merely because the CEGAT concluded that the appellants were not liable to pay penalty, we think it is not necessary for us to refer to those decisions. As to the proposition of law and ratio in “Alka Subash Gadia” case, cases cited by the learned senior counsel for the appellants, there cannot be any difficulty in accepting them. But in our view, we are not dealing with cases where prosecutions are launched on the criminal side against the appellants. It is not the case of the appellants in these appeals also that they were prosecuted in criminal Court and acquitted on merits, to contend that once they are acquitted in criminal cases, orders of detention could not be passed against them on the very same materials. Hence the decisions cited by the learned senior counsel for the appellants, in our view, do not help the appellants.
16. As can be seen from the order passed by the CEGAT in Appeal Nos. C. 371, 372/96 I/ W.C. 198/96 dated 19-1-1996, points of difference between the two members of the Division Bench are :-
Whether in the facts and circumstances of the case, in the absence of any reliable and sufficient evidence, penalty under Section 112 of Customs Act could not be levied on the appellants and by giving them the benefit of doubt the appeals of the appellants have to be allowed as held by the Vice President; Whether in the facts and circumstance of the case, taking the evidence cumulatively the learned lower authority’s order of levy of penalty on the appellants is sustainable, as held by Member (Judicial) in his order.
16A. In paragraph 24 of the said order, it is stated thus :-
Furthermore, this case totally hinges on circumstantial evidence, as far as penalty imposable on Mardia and Surana is concerned. Now, it is also laid down that circumstantial evidence must be compatible with the guilt of the accused and totally incompatiable with the innocence of the persons (1988-37-ELT-269 CEGAT). In this case. due to reasons discussed above, the evidence is neither compatible with the guilt, nor totally incompatible with the innocence, as there is no clear predominance of either. An objective and judicious approach in these circumstances would be to give benefit of doubt to the appellants S/Shri Mardia and Surana.
From what is stated above, it is clear that the CEGAT gave benefit of doubt to the appellants, and concluded that no penalty can be imposed on the appellants.
17. The Apex Court, in “Shiv Ratan Makim v. Union of India” , has stated thus, at page 815 (of Cri LJ):-
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 Subrati v. State of W.B. , ‘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 could 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 authorities concerned a new 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 mala fide’. If the failure of the criminal prosecution can be no bar to the making of an order of detention, a fortiori 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 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.
18. Yet, in the recent decision of the Rajasthan High Court in “Bhanwarlal v. Union of India” 1998 Cri LJ 1712, in paragraph 14, it is stated thus at Page 1716 :-
It is thus obvious that even in cases in which investigating agency did not put a person on a regular trial for want of evidence, detention order could be passed on the grounds contemplated by the Act and even unsuccessful judicial trial or proceedings would not operate a bar to the detention order. In the instant case it is true that the petitioner has not been prosecuted as yet and for the recovery of the amount also a complaint has not been filed against him in Criminal Court. It may also be true that on the material collected by the Enforcement Agency the conviction of the petitioner may not be secured yet it cannot be held that the detention order could not be passed. Obviously, because the COFEPOSA Act creates in me authorities concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds keeping in view the acts prejudicial to community in general. This jurisdiction is different from that of judicial trial in Courts for offences and for judicial orders for prevention of offences.
Looking to the aforementioned two decisions of the Apex Court, and extending the principles laid down therein to these appeals on hand, these appeals have no merit.
19. Mere suspicion or doubt, judged by the standard of CEGAT, was not sufficient to fasten liability to impose penalty on the appellants (hat they were concerned with or involved in the incident said to have occurred on 21-12-1994. But the considerations that weigh with the detaining authority, to pass orders of detention as a preventive measure to stop the activities prejudicial to the community in general, will be different; and may be the authorities act even on suspicions on the basis of their subjective satisfaction. In the case on hand, as is evident from what is stated above, the CEGAT gave benefit of doubt to absolve the appellants from the liability of payment of penalty, and not that the material placed before it was either totally irrelevant or extraneous. This being the position, the case of the appellants cannot be brought in any one of the guidelines given in “Alka Subash Gadia” case to give relief to the appellants at the pre-detention stage even without looking to the grounds of detention.
20. Having regard to the facts and circumstances, and all aspects of these cases, in the view we have taken it may not be necessary for us to deal with the other grounds urged by the learned senior counsel for the appellant finding fault with certain observations made by the learned single Judge in the order under appeals touching the other contentions raised. We do not find any good or valid ground to differ with the ultimate conclusion arrived at by the learned single Judge, in the order under appeals, in dismissing the writ petitions.
21. In the result, for the reasons stated, we dismiss these writ appeals, finding no merit in them, but with no order as to costs.