JUDGMENT
M. Jagannadha Rao, C.J.
(1) This writ petition is filed by the petitioner, at the pre-detention stage, apprehending his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called COFEPOSA) seeking the quashing of the detention order F.No. 673/43/94 dated 24.5.1994 passed under Section 3(1) of COFEPOSA.
(2) Petitioner contends (in para 1 of the petition) that a few days before filing of the writ petition, the respondents wanted to detain the petitioner, came to the petitioner’s premises with the detention order, the petitioner was not there and the detention order was copied by the petitioner’s ‘relative’ in the petitioner’s absence. The alleged copy of the detention order is filed as Annexure P-1. It is contended that from the copy it is clear that the petitioner is sought to be detained as an ‘abettor’ of smuggling activities. This contention is based on the alleged copy of the detention order. Of course, it is common ground that petitioner does not have a copy of the grounds of detention.
(3) Learned counsel for the petitioner has contended that though at the pre-detention stage, the challenge to the proposed detention can be based only on very limited grounds, – as mentioned by the Supreme Court in Government of India vs. Smt. Alka Sukbhash Gadia (1992) Scc (Suppl)(1) 495, – the case of the petitioner falls within the said limited grounds. Petitioner assumes that inference of ‘abetment’ is drawn on the basis that the petitioner ‘abetted’ smuggling by two persons: viz. Shri Abdul Bashir Moideen and Shri Mohd. Ali Abdullah. These two persons are said to have brought 42 pieces and 21 gold biscuits respectively from Dubai to India on 29.12.93. Petitioner states that these two persons have been released by the Advisory Board and that on that basis the detention orders in their cases have been revoked. Petitioner says that if the alleged principal offenders have been released by the Advisory Board, there can be no ground to treat the petitioner as an ‘abettor’. It is also contended that the grounds are vague. Reference is made to Government of India’s notifications to show that petitioner’s driver receives at Igi Airport only those who have paid duty on gold brought into India up to 5 kgs. and those who had stayed in Dubai for more than 6 months.
(4) The following are the allegations in the writ petition : THE petitioner says that he belongs to Kerala but is a non-resident Indian, he had business interests in Dubai and India, that he is running a restaurant in Dubai and having business of sale and purchase of motor vehicles in India, that on 28.1.94 he was taken by the customs officials at Delhi and under Section 108 of the Customs Act a statement was recorded on 28.1.94, 1.2.94 and 2.2.94. He says he is illiterate and his signature was obtained on a document containing his alleged statement. He says he retracted from the statement in 2.2.94 before the Court. Petitioner is running a restaurant at Dubai known as ‘Tandur Restaurant’ and a Toy shop. According to the alleged statement said to be made by petitioner, on 29.12.93, one Mr. V.C. Joseph alias Tony, who is an educated driver, drove the petitioners vehicle and received two passengers Abdul Bashir Moideen and Mohd. Ali Abdullah at Igi Airport, New Delhi, and they brought 5 Kgs. of gold each. The gold was within limits prescribed in Government of India’s notification dated 29.12.92 (Ex P-4). Petitioner was away at Kerala since 30.11.93 to 27.1.94. Petitioner was arrested under the Customs Act on 2.2.94 (P.5) and released on bail by the Additional Sessions Judge, New Delhi on 10.2.94 (Ann. P6). A show cause notice was served on petitioner on 22.6.94 by the Customs authorities which asked petitioner to explain why adjudication proceedings should not be taken against him (P7). Petitioner replied on 8.8.94 and 7.11.94 (P8) and the proceedings are pending. The show cause notice referred to the bringing in gold of 5 Kgs. each by Mohd. Ali Abdullah and Abdul Bashir Moideen on 29.12.93 from Dubai, to the said persons going on green channel and to their being interrogated on suspicion and foreign currency of Rs. 1.10 lakhs and $ 1780 being respectively recovered from them. They were arrested and statements recorded from them. The said two persons were detained under Cofeposa on 24.5.94 and were later released by the Advisory Board as they were carrying the gold of 5 Kgs. each and as they were having enough money to pay the duty. It is denied that while stepping into the green channel, they had intended to avoid paying duty. These are the allegations in the writ petition.
(5) Learned counsel, referred us to the connected notification of Customs Act in this connection. Counsel also requested us to look into the report of the Advisory Board to see whether the said Mohd. Ali Abdullah and Abdul Bashir Moideen were released not on technical or procedural grounds but whether they were released on the finding that there was no violation of provisions of the Customs Act.
(6) The writ petition is filed at the pre-detention stage. We passed an order, ordering notice and stated that we would like to know from respondents whether the case fell within the principles laid down by the Full Bench of this Court in Mansukh Chhagan Lal vs. Union of India 1995 Crl. L.J. 1097 read with the judgment of the Supreme Court in Prem Singh’s case 1994(2) Scale 747, referred to therein. In the Full Bench this Court referred to the Supreme Court judgment in Alka Subhash Gandia. If the case is to be covered by Prem Singh’s case, it will have to be dismissed.
(7) Counter has been filed. We have also called for and looked into the report of the Advisory Board in the case of Mohd. Ali Abdullah and Abdul Bashir Moideen. We shall proceed on the assumption that the Advisory Board had let off the above said two persons on merits and not merely on violation of procedural safegaurds.
(8) The petitioner is relying on the copy of the detention order said to have been prepared by his ‘relative’ when the respondents sent somebody to serve the detention order at the premises of the petitioner. Petitioner says that from that copy it is clear that he is being charged as an `abettor’ of smuggling activities and that once the alleged two principal offenders are let off by the Advisory Board, there was no scope of the petitioner being treated as an abettor of any offence of smuggling. Therefore petitioner seeks orders at the `pre-detention’ stage.
(9) There are here two aspects to be considered. We shall point out certain aspects relating to alleged copy of the detention order. We shall later refer to the want of copy of the grounds of detention.
(10) The petitioner says that the detention order was brought to petitioner’s premises a few days before the filing of the writ petition. Who brought it and what his name is or who the ‘relative’ who copied from the original order is, are not known. The affidavit of the ‘relative’ is not filed. Assuming that the petitioner is charged as an ‘abettor’of smuggling, there is nothing in the detention order to say that petitioner is being charged as an ‘abettor’ of offences by the two persons who arrived at the Igi Airport on 29.12.93.
(11) Petitioner has filed the Section 108 statements of the said two persons, and his own Section 108 statement and of his driver Mr. Joseph. The tenor of the answers given read with the counter filed by the respondents also suggests that petitioner is receiving generally, several others too who come from Dubai, arranges car for them at Igi airport, and accommodates them at Holiday Home Hotel etc. The statements do not confine the matter to the two persons who were received by the petitioner’s driver on 29.12.93.
(12) Further, unless the ‘grounds’ of detention are looked into, it is not possible to know what the respondents meant by saying petitioner is an ‘abettor’. Petitioner can not presume the contents of the grounds and contend that there were only two principal offenders namely those two who were let off by the Advisory Board. In fact, in the counter, it is stated that an adjudication order has been passed against the petitioner by the Customs authority (Order No. 2/95) dated 26.4.95 imposing a penalty of Rs. 1 lakhs. It is stated in the counter that according to Section 108 statement of Mr. Joseph, the driver: “…HEis working for the petitioner and his role is to receive passengers carrying gold and take them to Hotel Holiday Home. It is said petitioner is the “main brain” behind the operation….”
(13) The counter proceeds on the basis that the abetment is not confined to two persons.
(14) No doubt, petitioner’s statement and of Mr. Joseph under Section 108 is that only those customers are received at Igi airport who have lived for more than 6 months in Dubai and who bring gold up to 5 Kgs. and who produce receipt of payment of duty, as per government notification liberalising import of gold. But we cannot, at this stage, presume what would be the contents of the grounds as and when they are served (The fact remains that penalty of Rs. 1 lakh has since been levied against the petitioner on 26.4.95 in adjudication proceedings). Under Cofeposa the detaining authority has five days normally to prepare and serve the grounds of detention.
(15) The Supreme Court had occasion in Prem Singh’s case to deal with an appeal wherein, at the pre- detention stage, the High Court restrained the authorities from detaining the petitioner therein on the ground that the Advisory Board had, on same facts, released two co-accused connected with the same transaction. The Supreme Court allowed the appeal by the Government and held that the High Court erred in ordering release. The grounds of detention in the case of other co-accused who were before the Advisory Board could not be the basis for presuming that the reasons for detention of another co-accused (the writ petitioners) were also the same. At the pre-detention stage the Court cannot presume such facts. The Supreme Court observed: “AS rightly urged on behalf of the appellant, merely because the Advisory Board rendered the advice for release of Vijay Kumar and other detenues “afortiori”, it does not follow the Advisory Board will do the same thing. Even then, it is the function of the Advisory Board and not a ground for interference at pre-detention stage.”
(16) In Prem Singh’s case, it was argued that the liberalisation policy in relation to import of gold had a bearing on the order of detention which was to be served on Prem Singh. This contention was rejected. The Supreme Court after referring to Alka Subhash Gadia, observed: “THE High Court has completely misunderstood the scope of liberalisation of policy in relation to import of gold and the conditions under which such import could be made. What is nexus between the policy and the preventive detention?”
(17) Learned counsel contended that in Prem Singh’s case, the incident took place on 28.1.92 (as is clear from the judgment of the High Court in Crl. W.P. No. 637/92 dated 16.2.93) whereas the liberalisation policy was introduced later and the High Court was obviously wrong in that case in referring to the policy as applicable to the case and that the Supreme Court’s observations must be understood in that light. It is argued that in the present case, the incident relating to the two persons Abdul Bashir Moideen and Mohd. Ali Abdukllah took place on 29.12.93, long after the policy came into force and hence the Prem Singh’s case is distinguishable. We may here state that the observations of the Supreme Court that liberalisation policy and preventive detention are different, are general. It is not open to us to explain away the said observations in Prem Singh’s case. In any event, as stated earlier, in the absence of the grounds of detention, it is not possible to presume that the respondent’s subjective satisfaction is based upon the events of 29.12.93 alone. The Supreme Court in Prem Singh’s case observed: “THE stand of the present appellant who figured as respondent in the High Court was the ground of detention as far as the writ petition is concerned were yet to be served. By what process of reasoning the High Court came to the conclusion that the ground of Vijay Kumar and that of the petitioner before it are common is difficult to discuss.”
(18) There is no question, on the facts before us, of presuming facts that might be contained on the grounds of detention which are yet to be served. Merely from the alleged copy of the detention order, it is not possible to assume to the contents of grounds of detention. Such grounds could be served normally within 5 days after detention. In our view, Prem Singh’s case concludes the case against the petitioner at the pre-detention stage.
(19) Learned counsel contended that the grounds are vague. But, without the grounds of detention before us, we cannot go into the said question for the purpose of applying the five exceptions laid down in Alka Subhash Gadia’s case. In fact, the Supreme Court in Alka Subhash Gadia’s case held that no mandamus can be issued to the respondents to place before the Court the proposed grounds of detention. Merely by looking into the Advisory Board’s order in the case of the two other persons who were released, we cannot presume the grounds of detention in the petitioner’s case. Petitioner can get the copy of the grounds only after he surrenders and allows himself to be detained.
(20) In the Full Bench decision in Mansukh Chaganlal vs. Uoi 1995 Cr. L.J. 1097, we have elaborately discussed the exceptions raised in Alka Subhash Gadia and also Prem Singh’s case. We have held that, at the pre- detention stage, petitioner has to bring his case within the exceptions in Alka Subhash Gadia for seeking relief. We shall now see if petitioner has brought his case within the exceptions. (1) It is not the case of the petitioner that the order of detention is not passed under the Act under which it is proposed to be passed. (2) It is not his case that it is being executed against the wrong person. (3) It is not possible to say in this case, on the material placed before us by petitioner and at this stage that the detention is for a wrong purpose. (4) It is not possible to say, on the material placed before us by the petitioner, that the order is passed on vague, extraneous and irrelevant grounds; (5) It is not the case of the petitioner that the order is passed by a wrong authority.
(21) In the result, we follow Prem Singh’s case and hold that the present case does not come under the exceptions in Alka Subhash Gadia. We have rejected the other contentions also as stated above.
(22) Learned counsel for the petitioner has referred to other rulings also but we do not find them relevant as we are bound by the principles laid down by the Supreme Court in Prem Singh’s case.
(23) The writ petition is liable to be dismissed. This will not preclude the petitioner from filing a writ petition after surrendering and receiving grounds of detention. Nothing said in this order will come in the way of the petitioner for challenging the detention order after receipt of the grounds. Criminal writ petiltion is dismissed.