JUDGMENT
Manmohan Sarin, J
1. Petitioner, Shri Gian Chand Kishore, by this petition filed through his wife Smt.Gulshan Devi, under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, seeks quashing of order of detention bearing No.F.5/4/2005-Home(P-II) dated 22nd August, 2005, passed under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA Act).
2. Pursuant to the order passed on 22nd August, 2005, petitioner was arrested on 23rd August, 2005 and has been in detention since then. Petitioner had submitted a representation against his detention to the Lt. Governor on 29th September/4th October, 2005, which has been annexed as Annexure P-6 to the writ petition. The same was rejected by the Lt. Governor on 19.10.2005. The State Advisory Board, constituted under the COFEPOSA Act, also considered the matter and has given its opinion dated 20th October, 2005 to the effect that there was sufficient cause for detention of the petitioner. The Lt. Governor vide its order dated 16th November, 2005, confirmed the same for a period of 12 months from 23.8.2005. In the circumstances, petitioner has preferred the present petition, assailing the order of detention.
3. Before dealing with the grounds urged by the petitioner in assailing the order of detention, facts relevant for the purpose of the petition, may be briefly noted:-
(i) Petitioner/detenu Gian Chand Kochar, holder of Indian Passport No.E.6067657 was going to Frankfurt by Air India flight No.AI 137. He was intercepted by the Customs Officers. He declared that he was carrying 1000 Euros only. After the requisite notice, personal search and a search of his baggage was carried out in the presence of a gazetted officer. On personal search 1000 Euros and Indian rupee Rs.250 were found, while in search of the baggage 30000 Euros and Indian currency of Rs.21,000/- were recovered. Petitioner’s mobile phone was also seized for facilitating investigation.
(ii) Petitioner in his voluntary statement dated 7th May, 2005, under Section 108 of the Customs Act, admitted recovery of foreign currency of 1000 Euros and Rs.21,250/- in Indian currency. Currency was seized by the Customs Officers on the basis of its being illegally attempted to be exported in contravention of provisions of the Customs Act as also of the Foreign Exchange Management Act, 1999 and being liable for confiscation.
(iii) Petitioner on 29th April, 2005 i.e. hardly 8 days before the incident of 7th May, 2005 was caught smuggling 5 Kgs. of saffron. Personal penalty of Rs.25,000/- and a redemption fine of Rs.40,000/- was imposed on him. Petitioner only deposited the amount of personal penalty and got his passport released, but did not pay the redemption fine. On 7th May, 2005 petitioner was caught, as noticed above, with 31000 Euros valued at Rs.17 lacs approximately, while attempting to board the flight to Frankfurt.
(iv) Petitioner is stated to have studied up to Class IV. Hence, petitioner claims to be virtually illiterate and unable to read or write English or Hindi. As per petitioner, he earlier did some business in leather and subsequently in crockery and now, was doing business of commission agent.
(v) Between October, 2003 and April, 2005, petitioner had travelled abroad twice in 2003, four times in 2004 and twice in 2005. The respondent after arrest of the petitioner on 7.5.2005, produced him before a Magistrate, who remanded him to judicial custody till 20.5.2005. Petitioner’s bail application dated 12.5.2005 and 24.5.2005 were dismissed. Another application dated 28.5.2005 was dismissed in default on 30.5.2005 by the Additional Sessions Judge. Petitioner moved his fourth bail application on 30.5.2005. The same was allowed vide order dated 2.7.2005 subject to the condition that the petitioner would not leave the country and surrendered his passport. Complaint was lodged on 4.7.2005 under Section 132 read with Section 135(1)(a) of the Customs Act. It is in the aforesaid background of facts that after petitioner had been released on bail on 2.7.2005, the impugned order of detention was passed on 22.8.2005.
4. Mr. R.M. Bagai, learned Counsel for the petitioner assailed the order of detention as having been passed without application of mind. He submits that the detention order proceeds on the basis as if there is evidence of organized crime and gang activities. However, no details are mentioned either in the detention order or in the documents attached or relied on. He submits that there is nothing produced on record to indicate that petitioner has an organization or was assisted by others in carrying out the illegal activities. The offending activities attributed to the petitioner are those performed by an individual. Mr.Bagai submits that on the materials disclosed, it could not be said that petitioner was either assisted by some one or led by some one. He submits that in the absence of any factual foundation with regard to any organizational activity or organized crime being the basis of the detention order, the same stood vitiated by non-application of mind. Not only this it deprived the petitioner of the right of an effective representation against it.
5. Mr.Bagai next submitted that there was no question of propensity towards crime. Petitioner has marriageable age daughters and it was extremely unlikely that he would indulge or have the propensity to indulge in smuggling or similar activities. He submits that the only other incident mentioned by the respondent is when the petitioner was bringing saffron worth Rs.25,000/- for personal use. It was for self consumption. Respondent had levied a redemption fine of Rs.40,000/-, which made it uneconomical and unviable as it was a meager quantity. Petitioner, therefore, did not avail of the said option.
6. Petitioner further submits that he was denied the right of an effective representation before the Advisory Board. He submits that he was brought to the hearing after changing several DTC buses and made to walk handcuffed and was completely shattered when he reached in the evening and hence could not brief the counsel or make an effective representation. Lastly, Mr. Bagai submitted that petitioner’s representation against the detention order was rejected without application of mind. Petitioner had specifically asked to be supplied the material in support of the allegation that he was indulging in organized crime. No evidence or material for the same was provided.
7. Reliance was placed by Mr. Bagai on Praduman Singh v. Union of India and Ors. 112 (2004) Delhi Law Times 321 in support of his submission that orders, which disclosed non-application of mind, were liable to be set aside. In Praduman Singh’s case the detention order had used the phrase ‘Statement of others’ while on record, there were no statements. Hence the order was held to be vitiated. Mr. Bagai cited the above judgment, seeking to draw an analogy that the detention order insofar as it proceeded on the basis of organized crime and gang activity, betrayed non-application of mind. Reliance had also been placed by Mr. Bagai on A.C. Razia v. Government of Kerala and Ors. Judgment Today 2004 (1) SC 264 in support of his contention that petitioner being illiterate, the grounds of detention were required to be read over and explained to him in a language understood by him.
8. Ms. Mukta Gupta, learned Counsel for the State opposes the writ petition and refuted the factual assertions sought to be made by the petitioner. She submitted that translation of all the documents annexed to the detention order and relied on therein had been duly supplied to the petitioner in Hindi with which he was conversant. She referred to the voluntary statement of the petitioner recorded under Section 108 of the Customs Act in petitioner’s own handwriting in Hindi Petitioner had admittedly studied up to class IV. There is merit in the contention of Ms. Mukta Gupta and her submission is duly supported by the statement of the petitioner recorded in Hindi in his own hand. The statement does not appear to be a labored or constructed effort, as claimed by the petitioner. The constitutional safeguards, in our view, have been duly met with in supplying the copies of the documents to the petitioner in Hindi, a language understood by him.
9. As regards the impugned order of detention being vitiated by non- application of mind, since it referred to the petitioner having the propensity to indulge in smuggling activities in an organized and clandestine manner, it has to be borne in mind that petitioner, who claims to be working as a commission agent, has admittedly travelled abroad between October, 2003 to May, 2005, nine times. Petitioner a week before the last incident was found to be smuggling 5 kg of saffron on which a penalty of Rs.25,000/- and redemption fine of Rs.40,000/- was levied. Such frequent travels and in the last incident, where foreign currency over Rs.17 lacs is attempted to be smuggled out by itself indicate that the activities of the petitioner would be part of a large network and not the act of an individual. Ms.Mukta Gupta submitted that these find support from the act of petitioner in obtaining a cellular phone in the name of one Prabhat Lumba son of Jagan Nath Lumba with forged documentation. Mr. Prabhat Lumba on being questioned, denied the filling up of the enrolment form for the mobile phone and his signatures thereon. Besides, the receipt of numerous telephone calls from Balvinder Singh on the mobile phone of the petitioner at the time of his arrest are all indicative of organized activity. We find merit in the above submission of the learned Counsel for the State.
10. Reference may usefully be made to the decision of the Supreme Court in Sitthi Zuraina Begum v. Union of India and Ors. – Judgment Today 202 (9) SC 479. This was a case where the Custom Authorities had intercepted the detenu with baggage resulting in seizure of contraband much in excess of the declared value. The plea sought to be raised was that it was a solitary incident and hence should not be made the basis of a detention order. The Supreme Court did not entertain this plea that there could not be preventive detention on a solitary incident. The Supreme Court noted, 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 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 coming back with goods which are contraband or to evade duty but may encourage such activities as well by dealing in such goods.
In the cited case, the detenu had declared the value of goods as Rs.80,000/- while the contraband seized was Rs.13 lacs. The ratio of the above cited case is applicable to the present case, where the petitioner not being a person with known affluence or means, has been making frequent trips abroad without any apparent vocation or disclosure of business interest. The inference of being part of a larger network and indulging in smuggling activities can be safely drawn. Attempt to bring saffron and thereafter attempt to smuggle out foreign currency of over 17 lakhs lend credibility to the inference drawn.
11. Respondent has also denied the allegation of petitioner having been denied the right of effective representation before the Advisory Board. It was explained that hearing by the Advisory Board had been fixed at 4.00 p.m. and at that time, there was no Jail van available from the Tihar Jail and the detenu was accordingly brought by public transport, namely, DTC bus. However, allegation of being handcuffed or being subjected to ill-treatment are denied by State before the Advisory Board. Also, the petitioner was adequately represented by Mr. Bagai, who has argued the present petition. No such grievance can be entertained. Similarly, as held in Sitthi Zuraina Begum v. Union of India and Ors. (supra), surrender/non-availability of passport may not be a handicap for smuggling.
12. In view of the foregoing, we find that petitioner has failed to make out any ground to successfully challenge the detention order. Petition has no merit and is dismissed.