JUDGMENT
Ranjana Desai, J.
1. The petitioner is the wife of one Umesh Shetty (“detenu” for convenience), who has been detained by the 2nd respondent, Principal Secretary (Appeals and Security), Government of Maharashtra, under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA Act” for short), with a view to preventing him in future from smuggling goods. In this petition, the petitioner has challenged the said order of detention.
2. The order of detention was served on the detenu when he was in judicial custody. The grounds of detention indicate that the material placed before the detaining authority disclosed that two consignments imported by the detenu were seized by the DRI Officers on 21/2/06. The relevant bills of entry showed the goods contained in the consignments as plastic parts of toys. However, they contained 4 lakh pieces of Analog Watch Movements valued at Rs. 68 lakhs. It was apparent, therefore, that the goods were misdeclared.
3. On the basis of the material placed before her the detaining authority was satisfied that the detenu had engaged in prejudicial activities and she was satisfied that unless detained he was likely to continue to engage in similar prejudicial activities in future also after his release from custody. In the circumstances she issued the impugned detention order with a view to preventing the detenu in future from smuggling goods.
4. We have heard Mr. Maqsood Khan, the learned Counsel for the petitioner and Mr. Mhaispurkar, the learned APP for the State. With the assistance of the learned Counsel, we have gone through the relevant material and the affidavits on record.
5. Mr. Khan’s first submission is that the order of detention should be set aside because in the grounds of detention the detaining authority has stated that she was aware that the detenu was in judicial custody and considering the nature and gravity of the offence, she was satisfied that unless detained the detenu was likely to continue to engage in similar prejudicial activities in future also after his release from custody, but the detaining authority has not recorded as to how she reached the conclusion that the detenu was likely to be released from the custody in near future. He submitted that no material was placed before her to come to such a conclusion. He submitted that remand proceedings before the Additional Chief Metropolitan Magistrate’s court were vital documents which would have enabled the detaining authority to record her satisfaction as to whether or not the detenu would be released on bail. However, the remand proceedings were not placed before her. Mr. Khan submitted that, therefore, the conclusion reached by the detaining authority that the detenu was likely to be released on bail is based on no material. This indicates non application of mind of the detaining authority. He submitted that remand proceedings were vital documents which ought to have been placed before the detaining authority and copies thereof ought to have been supplied to the detenu. Mr. Khan submitted that this not having been done there is a violation of detenu’s right under Article 22(5) of the Constitution of India. In this connection Mr. Khan relied on T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Anr. .
6. Mr. Khan submitted that the detaining authority’s non application of mind is evident from the fact that in her affidavit she has stated that the offence in respect of which the detenu was arrested was punishable with maximum imprisonment of three years, when in fact it is punishable with minimum imprisonment of three years. He submitted that offence under Section 135 of the Customs Act is punishable with minimum imprisonment of three years and maximum imprisonment of seven years. He submitted that the detaining authority was not aware of the exact nature of sentence which may be imposed on the detenu and, therefore, it must be said that she had not considered whether offence was of such a nature where court would release the detenu on bail. This is, therefore, a case of gross non application of mind of the detaining authority.
7. As against this Mr. Mhaispurkar, the learned APP submitted that in the grounds of detention the detaining authority has shown her awareness that the detenu was in judicial custody when the order of detention was issued. She has recorded her satisfaction that the detenu was involved in a well organized offence and considering the nature and gravity of the same she was satisfied that unless the detenu was detained, he was likely to continue to engage in similar prejudicial activities in future after release from custody. The detaining Authority has further stated that considering this she has issued the detention order with a view to preventing the detenu from smuggling goods in future. Mr. Mhaispurkar submitted that the detaining authority had, therefore, applied her mind to all vital considerations. He drew our attention to the affidavit of the detaining authority and submitted that the detaining authority has properly explained why she has issued the order of detention while the detenu was in custody. Mr. Mhaispurkar contended that therefore, it cannot be said that there is non application of mind on the part of the detaining authority. In support of his submissions, Mr. Mhaispurkar relied on the judgment of the Supreme Court in A Geetha v. State of T.N. and Anr. (2006) 3 SCC (Cri.) 324.
8. So far as the remand proceedings are concerned, Mr. Mhaispurkar submitted that the remand proceedings cannot be called vital and material documents. He submitted that remand proceedings only contain the allegations against the detenu. In the facts of the case where other relevant material was before the detaining authority indicating the nature of the prejudicial activity in which the detenu is involved, the remand proceedings cannot be called vital and material documents.
9. So far as the grievance made by Mr. Khan that non application of mind of the detaining authority is evident from the fact that in the affidavit-in-reply the detaining authority has stated that the offences in respect of which the detenu was arrested was punishable with maximum punishment of three years is concerned, Mr. Mhaispurkar, the learned APP submitted that that is merely a typographical error. The word ‘maximum’ should in fact be ‘minimum’. He submitted that this would be evident from the affidavit of Dr. T. Tiju, the Deputy Director, DRI, wherein he has stated that the detaining authority was made aware by a letter that the detenu was in custody in respect of offence punishable under Section 135 of the Customs Act which is punishable with minimum imprisonment of three years and in such an offence bail is normally granted by the court. Mr. Mhaispurkar submitted that, therefore, the allegation that there is non application of mind of the detaining authority is baseless.
10. We shall first deal with Mr. Khan’s submission that the apprehension expressed in the grounds of detention that the detenu may be released on bail is merely the ipse dixit of the detaining authority.
11. In the grounds of detention after setting out in detail the nature of the prejudicial activity in which the detenu is involved in paragraph 17 the detaining authority has stated as under:
17. From the prevailing circumstances, it is apparent that you have knowingly been involved in the prejudicial activity. I am aware that you are now in judicial custody. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in prejudicial activities, I am satisfied that, unless detained, you are likely to continue to engage in aforesaid prejudicial activities in future also, after released from custody and therefore, it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of of smuggling Activities Act,1974 with a view to prevent you in future from smuggling goods.
It is clear from this averment that the detaining authority was aware that the detenu was in judicial custody. She was satisfied, looking to the nature of the prejudicial activity, that after release from custody the detenu was likely to continue to engage in similar prejudicial activities and hence it was necessary to detain him.
12. It is contended by the petitioner that there was no material before the detaining authority to come to a conclusion that the detenu was likely to be released on bail in near future. It is contended that it was incumbent upon the sponsoring authority to place the remand application before the detaining authority and copy thereof ought to have been served on the detenu.
13. In this connection it is necessary to refer to the judgments on which reliance is placed by Mr. Khan. In T.V. Sravanan’s case (supra) the detenu had moved an application for bail before the Sessions Court which was rejected on 17/11/04. The detenu had moved another bail application before the High Court which was withdrawn on 3/12/04. The detaining authority noticed that the detenu had not moved any bail application subsequently but it went on to state that there was imminent possibility of the detenu coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed merely 12 days after the dismissal of the bail application by the High Court. It is in this context that the Supreme Court held that the bail applications moved by the detenu had been rejected by the courts and there was no material whatsoever to apprehend that the detenu was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted and the “imminent possibility” referred to by the detaining authority was merely the ipse dixit of the detaining authority.
14. Such are not the facts here. It is not the case of the detenu that his bail application was rejected. In this case, the detaining authority has stated on affidavit that in respect of offence punishable under the Customs Act bail is normally granted. This assessment made by the detaining authority on the basis of the material placed before him cannot be gone into by this Court, it being in the realm of her subjective satisfaction.
15. In this connection, we may also refer to the judgment of the Supreme Court in Rameshwar Shaw v. District Magistrate Burdwan , where while dealing with the similar question the Supreme Court has observed that as an abstract proposition of law, there may not be any doubt that an order of detention can be passed against a person while he is in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The Supreme Court has further observed that the question as to whether an order of detention can be passed against a person who is in jail, will always have to be determined in the circumstances of each case.
16. We must also refer to the judgment of the Supreme Court in A. Geetha’s case (supra). In that case the conclusion drawn by the detaining authority about imminent possibility of release on bail was under challenge. The Supreme Court observed that whether prayer for bail would be accepted or not depends on the circumstances of each case and no hard and fast rule can be laid down. The Supreme Court clarified that the only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. On the facts before it the Supreme Court observed that on the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail and this being his subjective satisfaction it cannot be interfered with. The conclusion of the detaining authority cannot be his ipse dixit. The Supreme Court on facts approved the averment made by the detaining authority that in similar cases orders granting bail are passed by various courts. The Supreme Court distinguished its judgment in Rajesh Gulati v. Govt. of NCT of Delhi by observing that in that case five bail applications filed by the detenu had been already rejected and against that background the Supreme Court had observed that it was not a ‘normal’ case. In our opinion, the respondents can draw support from this judgment. The averment made by the detaining authority in the affidavit that in cases in which persons are charged with offences under the customs Act, bail is normally granted which has not been controverted by the petitioner by filing affidavit or in the court cannot be called improper. It is not possible for us to hold that the detaining authority was not justified in entertaining an apprehension that the detenu might be released on bail. This is not a case where several bail applications made by the detenu were rejected. In such circumstances subjective satisfaction of the detaining authority cannot be described as her ipse dixit.
17. So far as the statement made by the detaining authority in her affidavit that “the detenu was arrested in respect of the offence punishable under the Customs Act, which is punishable under the Customs Act for maximum imprisonment of 3 years” is concerned, in our opinion, the explanation offered by Mr. Mhaispurkar, the learned APP that it is a typing error and the word maximum should be read as minimum appears to us to be correct. In this connection reference must be made to the affidavit of Dr. T. Tiju Deputy Director, DRI. Dr. Tiju has stated that the detenu was arrested on 1/8/06 and, therefore, the intimation of the same was given to the detaining authority and thereby the detaining authority was made aware about the detenu being in custody, in respect of the offence punishable under Section 135 of the Customs Act which is punishable for minimum imprisonment of 3 years and in such an offence the bail is normally granted by courts. In her affidavit the detaining authority has confirmed that the sponsoring authority had sent her such intimation. Therefore, it is apparent that the detaining authority knew that minimum imprisonment was of 3 years. The word “maximum” is, therefore, clearly a typographical error. The first submission of Mr. Khan must, therefore, fail.
18. In our opinion, in the circumstances of the case remand application cannot be called a vital document because in the grounds of detention the detaining authority has given the gist of the case against the detenu. The detaining authority has obviously culled it out from the statements and documents placed before her, copies of which have been given to the detenu. It is common knowledge that remand application contains the gist of the prosecution case and seeks custody of the accused. Whether a case for bail exists or not can be made out from the material placed before the detaining authority. Therefore, non placement of remand application before the detaining authority and non supply thereof to the detenu does not vitiate the detention order.
19. Mr. Khan then urged that on 2/8/06 when the detenu was produced before the learned Magistrate, the detenu retracted his statement recorded under Section 108 of the Customs Act by the DRI Officers on 1/8/06. He submitted that retraction was filed in the court. However, the sponsoring authority did not place it before the detaining authority. Mr. Khan submitted that the detaining authority has heavily relied on the detenu’s statement and hence it ought to have been placed before the detaining authority. In support of this submission Mr. Khan relied on the judgments of the Supreme Court in Kurjibhai Dhanjibhai Patel v. State of Gujrat and Ors. 1985 (1) SCALE, an unreported judgment of the Supreme Court in Mohd. Towfeek Mohd. Mulaffar alias M.T.M. Mulaffar v. The Additional Secretary to Government of Tamil Nadu and Anr. in Writ Petition No. (Cri.) 602 of 1989 decided on 23/2/90, Amanullah Quareshi v. Union of India and Ahmed Nassar v. State of Tamil Nadu And Ors. 1999 SCC (Cri.) 1469. Mr. Khan further urged that the respondents cannot save the impugned order by relying on Section 5A of the COFEPOSA Act because the detention order rests on one composite ground. In support of this submission, he relied on K. Satyanarayan Subudhi v. Union of India and Ors. 1991 Supp. (2) SCC 153, A. Sowkath Ali v. Union of India and Ors. and Prem Prakash v. Union of India and Ors. 2000 SCC (Cri.) 1318.
20. Mr. Mhaispurkar, the learned APP on the other hand did not seriously dispute that in a given case retraction of the statement made by the detenu can be a vital document and its non-placement would vitiate the detention order. He took us to the affidavit of the detaining authority where the detaining authority has stated that the sponsoring authority had informed her vide letter dated 16/8/06 that the detenu had retracted his statement and rebuttal to the same was filed by the department. He pointed out that the detaining authority has stated that she had perused the retraction of the detenu and according to her it is not a vital and material document. Mr. Mhaispurkar submitted that this explanation is acceptable. He submitted that in any event the detention order cannot be set aside on this ground because the detaining authority has relied on other material apart from the detenu’s statement and hence the order of detention can be sustained on the basis of the other pieces of material which constitute separate grounds. He submitted that Section 5A will come to the aid of the detaining authority and save her order. In this connection Mr. Mhaispurkar relied on the judgments of the Supreme Court in State of Gujarat v. Chamanlal Manjibhai Soni , Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and Ors. , Attorney General for India v. Amratlal Prajivandas and Ors. 1995 Cr.L.J. 426, Meena Jayendra Thakur v. Union of India and Ors. , Kirit Kumar Nirula v. State of Maharashtra and Ors. & D. Anuradha v. Joint Secretary and Anr. (2006) 2 SCC 142.
21. So far as the stand taken by the detaining authority that she has gone through the retraction after the detention order was issued and has found it to be not a vital document is concerned, it must be rejected because in Kurjibhai’s case (supra) post facto consideration of the detenu’s reply to the show cause notice after issuance of the detention order was held not good enough to fill up the lacuna of non consideration thereof before issuance of the detention order.
22. In view of the fact that Mr. Mhaispurkar has not seriously disputed that retraction of the detenu is a vital and material document it is not necessary to deal with the judgments cited by Mr. Khan on that point. We are, however, of the opinion, that assuming that retraction of the detenu is a vital document, the detention order can be sustained on the basis of Section 5A of the COFEPOSA Act. Section 5A of the COFEPOSA Act reads thus;
5-A. Grounds of detention severable. – Where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to
hold that the Government or officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.
23. In Chimanlal Soni’s case (supra) the High Court had quashed the order of detention issued under the COFEPOSA Act on the ground that as one of the grounds, namely ground No. 7 was irrelevant, the entire order of detention is vitiated. The Supreme Court held that the High Court has put a wrong interpretation on Section 5A. The Supreme Court observed that the detention order under Section 3 of the COFEPOSA Act is only for the purpose of preventing smuggling and all the grounds whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground could be conceived which could deal with matters other than smuggling because the act of smuggling covers several activities each forming a separate ground of detention and the COFEPOSA Act deals with no other act except smuggling. We may quote the relevant observations of the Supreme Court.
It is manifest that whenever the allegations of smuggling are made against a person who is sought to be detained by way of preventing further smuggling, there is bound to be one act or several acts with the common object of smuggling goods which is sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constitutes the ground for detention, except the one which relates to smuggling. In our opinion, this is neither the object of the Act nor can such an object be spelt out from the language in which Section 5A is couched. What the Act provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and, if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. The reason for enacting Section 5A was the fact that several High Courts took the view that where several grounds are mentioned in an order of detention and one of them is found to be either vague or irrelevant then the entire order is vitiated because it cannot be predicated to what extent the subjective satisfaction of the authority could have been influenced by the vague or irrelevant ground. It was to displace the basis of these decisions that the Parliament enacted Section 5A in order to make it clear that even if one of the grounds is irrelevant but the other grounds are clear and specific that by itself would not vitiate the order of detention.
24. In Prakash Chandra Mehta’s case (supra) the Supreme Court again dealt with Section 5A. In that case it was argued that the retraction of the detenu was not placed before the detaining authority. After referring to its judgment in Chamanlal Soni’s case the Supreme Court observed that the detaining authority had relied upon several factors apart from the statement of the detenu, such as search and seizure of the hotel room, secretive manner of keeping the gold biscuits etc. The Supreme Court observed that those materials were in addition to the statements and confessions made under Section 108 of the Customs Act by the father, the son and the daughter and, therefore, even, if the statements made under Section 108 by the father, the sons and the daughter are ignored, the other facts remain and these are good enough materials to come to the prima facie belief that detention of the detenu was necessary.
25. In Amratlal Prajivandas’s case the Supreme Court was considering validity of the COFEPOSA Act. The Supreme Court while upholding its validity dealt with Section 5A. The relevant observations of the Supreme Court may be quoted.
Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5A seeks to do. Where the order of detention is based on more than one ground, the Section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove.
26. In Madan Lal Anand’s case (supra) the Supreme Court reiterated the same view. In this connection judgment of the Supreme Court in D. Anuradha’s case (supra) can also be referred to.
27. In this case apart from the statement of the detenu there are several other statements and other pieces of evidence disclosing the detenu’s involvement on which the detaining authority has placed reliance and, therefore, even if statement of the detenu is kept out of consideration because the detenu’s retraction was not placed before the detaining authority, the detention order can be sustained on the basis of other statements and pieces of evidence, each of which forms a separate ground.
28. Mr. Khan has heavily relied on K. Satyanarayan Subudhi’s case (supra) to counter submission of Mr. Mhaispurkar based on Section 5A of the COFEPOSA Act. In our opinion, that judgment does not help the petitioner. On facts in that case the Supreme Court came to a conclusion that there was only one ground and hence the Supreme Court distinguished its judgment in Prakash Chandra Mehta’s case and in Madan Lal Anand’s case from the facts before it. The Supreme Court observed that it had also considered that the detenu was under detention for over eight months and considering this aspect and other aspects it was just and proper to quash the detention order.
29. Judgment of the Supreme Court in A. Sowkath Ali’s case (supra) also does not help the petitioner. In that case on facts the Supreme Court was of the opinion, that grounds of detention was one composite ground. Besides the Supreme Court noted that the question of severability under Section 5A had not been raised by the State. Even in Prem Prakash’s case (supra) the Supreme Court has observed that there was only one ground of detention. That judgment would also be not applicable to the facts of this case. In our opinion, therefore, Mr. Khan’s contention that order of detention must be set aside because retraction of the detenu was not placed before the detaining authority must be rejected.
30. Mr. Khan then submitted that the detaining authority has in the grounds of detention narrated the statement of Niranjan Puthran where he is said to have stated that apart from the two seized consignments, the detenu had imported eleven consignments of similar nature and these consignments were misdeclared by the detenu in import documents as plastic parts of toys. Mr. Khan contended that it is stated in the grounds of detention that the said consignments were cleared after doing first or second check. He submitted that DRI’s letter dated 27/2/06 which was before the detaining authority states that these consignments were examined and cleared on the first check or on the second check. Mr. Khan submitted that, if these consignments were cleared by the customs after checking there is no smuggling in the eyes of law and no order of detention could have been passed on the basis thereof.
31. We are not impressed by this submission. The detenu’s associate Niranjan Puthran has in his statement stated that the detenu had imported 11 consignments of Analog Watch Movements. If these goods were not noticed at the time of checking, that would not mean that there was no smuggling. In any event the two import consignments which were seized by the DRI were clearly misdeclared. The order of detention can be sustained on the basis of the seizure of these two consignments with the aid of Section 5A of the COFEPOSA Act. This submission of Mr. Khan must, therefore, fail.
32. Mr. Khan further submitted that in the grounds of detention the detaining authority has stated that the statements of Niranjan Puthran and Yogesh Merchant are voluntary when in fact those statements were retracted. Mr. Khan submitted this statement made in the grounds of detention indicates non-application of mind and non-application of mind vitiates the detention order. The petitioner has not raised this contention in the petition. The petitioner is attributing non-application of mind to the detaining authority. The detaining authority’s subjective satisfaction is under challenge. In the absence of any specific averment made in the petition calling upon the detaining authority to explain it is not possible for us to deal with this submission. Mr. Khan placed reliance on the judgment of the Supreme Court in Harish Pahwa v. State of U.P. and urged that in detention matters even if a point is not raised in the petition in view of its importance, it can be decided. In our opinion judgment in Harish Pahwas’s case has no application to this case. In that case the point urged before the court was delay in considering representation. Delay in considering representation can be assessed on the basis of the files of the department. The Supreme Court observed that all material necessary for the determination of the question was on record and, therefore, the point was allowed to be raised. Non-application of mind of the detaining authority on the ground of alleged wrong statement made in the grounds is linked to the satisfaction of the detaining authority. Such point cannot be raised at the last moment. We, therefore, refuse to entertain this submission.
33. In view of the above, we are of the opinion that there is no infirmity in the impugned detention order. It is perfectly legal and justified. The petition is, therefore, rejected.
34. OPERATIVE PART OF THE ORDER
For the reasons stated in the Judgment, this Court has rejected the petition filed by the wife
of the detenu Umesh Shetty.