Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12
PETITIONER:
NARENDRA PURSHOTAM UMRAO ETC.
Vs.
RESPONDENT:
B. B. GUJRAL & ORS..
DATE OF JUDGMENT17/11/1978
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SARKARIA, RANJIT SINGH
TULZAPURKAR, V.D.
CITATION:
1979 AIR 420 1979 SCR (2) 315
1979 SCC (2) 637
CITATOR INFO :
F 1980 SC 798 (1)
E 1980 SC 849 (4,6)
R 1981 SC 510 (18)
R 1981 SC1077 (1)
R 1981 SC2069 (4)
R 1981 SC2166 (13)
R 1984 SC1334 (16)
R 1987 SC 217 (6)
F 1987 SC1748 (13)
R 1987 SC1977 (7)
R 1988 SC1256 (7)
R 1988 SC2090 (29)
RF 1990 SC 321 (23)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 -S- 3(1) Scope of,‘- S. 8(b)-
Constituational safeguards embodied in Art, 22(5) must be
read into S. 8(b).
HEADNOTE:
The appellant was detained under s. 3(1) of the
Conservation of Foreign Exchange an(1) Prevention of
Smuggling Activities Act, 1974 with a view to prevent him
from smuggling goods. Two representations made by him
against his detention were forwarded by the Government to
the Advisory Board with its comments. He was later produced
before the Advisory Board. On receipt of the Advisory
Board’s report that there was sufficient cause for
detention, the order of detention was confirmed by the
Government.
The High Court dismissed his petition under Art. 226 of
the Constitution. In appeal the appellant challenged the
order of detention on the ground that (1) it was in
violation of the right guaranteed under Art. 22(5) inasmuch
as the Government withheld consideration of the
representations made by him till after the hearing by the
Advisory Board, and (2) the impugned order of detention was
bad due to non-application of mind of the detaining
authority inasmuch as the facts alleged clearly and
distinctly showed that the appellant did not himself smuggle
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12
the goods.
Dismissing the appeal,
^
HELD: (1)(a) There was no warrant for the submission
that the disposal of the representations made by the
Government was not in conformity with Art. 22(5) of the
Constitution. [319H]
(b) It is well settled that in case of preventive
detention of a citizen, Art 22(5) of the Constitution
enjoins that the obligation of the appropriate Government to
afford the detenu an opportunity to make a representation
and to consider that representation is distinct from the
Government s obligation to constitute a Board and to
communicate the representation, amongst other material, to
the Board to. enable it to form its opinion and to obtain
such opinion. [321E]
Abdul Karim & ors. v. State of West Bengal, [1969] 3
SCR 479; Pankaj Kumar Cluakrabarly & ors. v. State of West
Bengal, [1970] 1 SCR 543, Khuairul Haque v. The State of
West Bengal W. P. No. 246 of 1969, decided on September 10,
1969, Jayanarayan sukul v. State of West Bengal, [1970] 3
SCR 225. Dhurus Kanu v. State of West Bengal, AIR 1975 SC
571; referred to.
(c) The constitutional safeguards embodied in Art.
22(5) must be read into the provisions of s. 8(b) of the
Conservation of Foreign Exchange and Preventional of
Smuggling Activities Act, 1974 to prevent any arbitrary
executive action. Merely because there is no express
provision in s. 8(b) of the Act placing an obligation to
forward the representation made by the detenu along-
316
with the reference to the Advisory Board unlike the
provisions contained in s. 9 of the Preventive Detention
Act, 1950 and s. 10 of the Maintenance of Internal Security
Act, 1971, it cannot be said that there is no obligation
cast on the Government to consider the representation made
by the detenu before forwarding it to the Advisory Board.
[325C; 322D-E]
Thaneshwar Singh v. The Union of India & ors., Cr. W.
No. 6 of 197 decided on September 25, 1978 (Delhi High
Court); over-ruled.
(d) When the liberty of the subject is involved,
whether it is under the Preventive Detention Act or the
Maintenance of Internal Security Act or the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
it is the bounden duty of the Court to satisfy itself that
all the safeguards provided by the law had been scrupulously
observed and that the subject was not deprived of his
personal liberty otherwise than in accordance with his.
[322-G]
(e) When any person is detained in pursuance of an
order made under any law providing for preventive detention
the authority making the order shall, as soon as may be,
communicate to such person the ground on which the order had
been made and shall afford him the earliest opportunity of
making representations against the order. These procedural
safeguards are ingrained in our system of judicial
interpretation. The power of preventive detention by the
Government under the Act is necessarily subject to the
limitations enjoined on the exercise of such power by Art.
22(5) of the Constitution. [323A]
Khudiram Das v. The State of West Bengal & ors. AIR
1975 SC 550 referred to.
In the instant case there was no infraction of
constitutional safeguards enshrined under Art. 22(5) and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12
there was no failure on the part of the Government to
discharge its obligations under that article. Quite clearly
the Government had forwarded the appellant’s two
representations alongwith its comments to the Advisory
Board. A perusal of the comments of the Government make it
clear that the Government had already formed an opinion that
the order of detention was in conformity with its powers
under the law. It cannot be said that in rejecting the
appellant’s representations the Government was influenced by
the views expressed by the Board. At the hearing the Board
had not indicated its mind as to whether there was
sufficient cause for detention. It is, therefore,
irrefutable that the Government had taken a decision
uninfluenced by what transpired at the hearing before the
Board. The matter was dealt with by the Government all: all
levels, and the detaining authority had come to an
independent conclusion of its own by applying its mind to
the facts and circumstances of the case. [325D-H]
(2)(a) The intention of the legislature in enacting s.
3(1) was to treat the smuggling of goods and abetting the
smuggling of goods as grounds separate and distinct and both
are separate grounds for detention i.e. to take in all such
activities which result in accomplishment of smuggling of
contraband goods. ’the term ’smuggling’ as defined in s.
2(e) of the Act read with s. 2(39) and s 111 of the Customs
Act, is wide enough to include and make liable not only the
actual smugglers but also persons abetting the smugglers, of
contraband goods as well as all persons dealing with any
such goods. A wider meaning is given to the term ’smuggling’
in s. 2(e) of the Act with a view to broaden the scope of
Preventive detention. In a case like the present where a
wide
317
spread network is employed by a person, it cannot be said
that he was not Engaged in the act of smuggling. The
appellant was not only the person who instigated, organised
and facilitated the smuggling of the contraband goods but he
was really a person to whom the goods belonged. The facts
set out in the ground of detention make it clear that the
appellant was the person who was actually engaged in the act
of smuggling of contraband goods into the Indian Customs
waters For all intents and purposes the appellant was the
actual smuggler and not a mere abettor His " activities were
such that his case would be covered by both clauses (i) and
(ii) of s. 3(1) of the Act. [326G-H; 327A-B]
(b) Assuming that the appellant was merely an abettor
in the smuggling of contraband goods on this occasion, still
his activities in this transaction afforded sufficient
grounds for the prognosis that he would have himself
included in actual smuggling of the balance of contraband
goods by remaining behind in the foreign country. [329D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
451 of 1978.
Appeal by Special leave from the Judgment AND order
dated S-G-78 of the Bombay High Court in Criminal
Application No. 15 of 1978.
Ram Jethmalani Ashok Desai, S. J. Thakore, K. R.
Krishnamurthy, Sri Narain for M/s J. B. Dadachanji and Co.
for the Appellants.
H. R. Khanna and M. N. Shroff for the State of
Maharashtra.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12
P. N. Lekhi, Girish Chandra and Miss A. Subhashini for
Union of India.
The judgment of the Court was delivered by
SEN, J.-This appeal by special leave directed against a
judgment of the Bombay High Court dated 5th June, 1978,
dismissing a petition filed by the appellant under Article
226 of the Constitution, by which he prayed for the issue of
a writ of habeas corpus, and the connected petition under
Article 32 of the Constitution by his wife for the issuance
of a writ of habeas corpus for his release raise a common
question and therefore they are disposed of by this common
judgment.
A vessel known as ’Jamnaprasad’ BLS-61 valued at one
lac of rupees was found grounded in a creek off the coast
near village KimKhadi on the 20th August, 1977. On receipt
of information regarding the grounding of the vessel the
Customs officers, Hansot, visited the spot and examined the
contents of the cargo aboard the aforesaid grounded vessel.
It was laden with 12 rolls of stainless steel sheets each
weighing one tonne, valued at Rs. 15,44,400/-. The aforesaid
vessel and the contraband goods found aboard it were seized
by the
318
Customs officers for action under the Customs Act, 1962.
They made inquiries about the whereabouts of the crew
members of the aforesaid vessel ’Jamnaprasad’ and were
successful in apprehending them and the others involved.
Intelligence gathered by the Customs officers clearly
indicate that the appellant was the main person connected
with the smuggling of the aforesaid cargo of contraband
goods, namely 12 stainless steel sheets recovered from
vessel ’Jamnaprasad’ BLS-61.
The appellant, who ostensibly carries on the business
of manufacturing, sale and export of Umrao brand wick
stoves, spray pumps, cash and jewellery metal boxes, in the
name and style of "Umrao Industries" and has his factory for
the manufacture of the aforesaid items at village Kim, has
been detained by an order of the Addl. Secretary to the
Government of India, Ministry of Finance (Department of
Revenue), New Delhi, dated the 1st of February, 1978 under
sub s. (1) of s. 3 of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, with a
view to prevent him from smuggling goods. He was arrested
and placed under detention on the 5th of February, 1978, and
is at present detained in the Central Prison, Bombay. At the
time of his arrest, the appellant was served with the order
of detention together with the grounds of detention with
full particulars on which the order of detention was based.
On 15th February, 1978 the case was referred by the
Government to the Advisory Board as required under s. 8(b)
of the Act to enable the Board to make its report under sub-
cl. (a) of cl. (4) of Article 22 of the. Constitution.
The appellant made two representations against his
detention to the Government, one dated the 4th and the other
dated the 6th of March, 1978, which were received by the
Government on the 7th and 8th March, 1978, respectively. The
Advisory Board had, in the meanwhile addressed a letter
dated 21st of February, 1978, to the Government intimating
that the case would be taken up on the 13th March, asking
that the detenu be produced at the hearing and the
Government should also forward the representation, if any,
made by the appellant, together with the comments/decision
of the Government, if any. On the 13th of March, the
appellant was accordingly produced before the Advisory
Board. The Government placed before the Board the two
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12
representations made by the appellant together with its
comments. The appellant was heard in person; the
Government’s point of view was placed before the Advisory
Board by the Deputy Secretary to the Government, Ministry of
Finance, Department of Revenue, who was accompanied by the
Assistant Collector. Customs,
319
Bulsar. On the 16th of March, 1978, the appellant sent a
telegram to the Advisory Board supplementing his oral
submissions. The detaining authority rejected the
representations made by the appellant on 1 8th of March,
1978. On 10th of April, 1978 the Advisory Board submitted
its report giving its opinion that there was sufficient
cause for the detention. The Government accordingly
confirmed the order B, of detention.
In the light of the circumstances appearing, it was
conceded that the grounds for detention set out the facts
with sufficient degree of particularity and that it did
furnish sufficient nexus for forming the subjective
satisfaction of the detaining authority. The order of
detention was, therefore, not challenged on the ground that
the grounds furnished were vague or indefinite or lacking in
particulars or were not adequate or sufficient for the
satisfaction of the detaining authority, or for the making
of any effective representation.
It is argued that the detention of the appellant was,
however, bad for two reasons namely, (1) the detention was
in violation of the constitutional right guaranteed under
Article 22(5), inasmuch as the Government withheld
consideration of the representations made by the appellant
till after the hearing before the Advisory Board, and (2)
the impugned order of detention is bad due to non-
application of mind inasmuch as the facts alleged clearly
and distinctly show that the appellant did not himself
smuggle the contraband goods. Both the contentions are, in
our opinion, wholly devoid of substance.
It is urged that the Government was under a
constitutional obligation to consider the representations
before the hearing before the Advisory Board. There is no
quarrel with the principle but the difficulty is about the
application of the principle on the facts and circumstances
of the present case.
In fact, the Government has to reach its decision
uninfluenced by the opinion of the Advisory Board. It is,
however, urged that the Government; in This particular case,
had not made up its mind till the hearing before the
Advisory Board on 13th March, 1978, and therefore, its
decision reached on the 18th March was not that independent
application of mind that the law requires, because by then
the proceedings had: begun before the Board and the
Government must have been influenced in its decision.
There is no warrant for the submission that the
disposal of the 1 representations made by the Government, in
the instant case, was not in conformity with Article 22(5)
of the Constitution. First, we shall
320
deal with the law on the subject before dealing with the
factual aspect. Article 22(5) of the Constitution enacts:
"When any person is detained in pursuance of an
order made under any law providing for preventive
detention, the authority making the order shall, as
soon as may be, communicate to such person the grounds
on which the order has been made and shall afford him
the earliest opportunity of making a representation
against the order."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12
In Abdul Karim & ors. v. State of West Bengal(t) this
Court interpreted the language of Article 22(5) and
observed:
"Article 22(5) does not expressly say to whom the
representation is to be made and how the detaining
authority is to deal with the representation. But it is
necessarily implicit in the language of Art. 22(5) that
the State Government to whom the representation is
made should properly consider the representation as
expeditiously as possible. The constitution of an
Advisory Board under section 8 of the Act does not
relieve the State Government from the legal obligation
to consider the representation of the detenu as soon as
it is received by it."
It was further observed:
"In our opinion, the constitutional right to make
a representation guaranteed by Art. 22(5) must be taken
to in elude by necessary implication the constitutional
right to a proper consideration of the representation
by the authority to whom it is made. The right of
representation under Art. 22(5) is a valuable
constitutional right and is not a mere formality. It
is, therefore, not possible to accept the argument of
the respondent that the State Government is not under a
legal obligation to consider the representation of the
detenu or that the representation must be kept in cold
storage in the archives! of the Secretariat till the
time or occasion for sending it to the Advisory Board
is reached. If the view point contended for by the
respondent is correct, the constitutional right under
Art. 22(5) would be rendered illusory."
Thus the two obligations of the Government to refer the case
of the detenu to the Advisory Board and to obtain its report
on the one hand and to give an earliest opportunity to him
to make a representation and consider the representation on
the other, are two distinct obligations independent of each
other.
(1) [1969] 3 SCR 479,
321
In Pankaj Kumar Chakrabarty & ors. v. State of West
Bengal(1), this Court again considered cl. (5) of Art. 22
and enunciate the Following principle:
"In our view, it is clear from cls. 4 and S of
Art. 22 that there is a dual obligation on the
appropriate Government and a dual right in favour of
the detenu, namely, (1) to have his representation
irrespective of the length of detention considered by
the appropriate Government and (2) to have once again
that representation in the light of the circumstances
of the case considered by the board before it gives its
opinion. If in the light of that representation the
board finds that there is no sufficient cause for
detention the Government has to revoke the order of
detention and set at liberty the detenu. Thus, whereas
the Government considers the re presentation to
ascertain whether the order is in conformity with its
power under the relevant law, the board considers such
representation from the point of view of arriving at
its opinion whether there is sufficient cause for
detention."
It is, therefore, well settled that in case of
preventive detention of a citizen, the Constitution by Art.
22(5) as interpreted by this Court, enjoins that the
obligation of the appropriate Government to afford the
detenu the opportunity to make a representation and to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12
consider that representation is distinct from the
Government’s obligation to constitute a Board and to
communicate the representation, amongst other materials, to
the Board to enable it to form its opinion and to obtain
such opinion.
The nature of the dual obligation of the Government and
the corresponding dual right in favour of the detenu under
Art. 22(5) was reiterated by this Court in Khairul Haque v.
The State of West Bengal(2) in these words:
"It is implicit in the language of Art. 22 that
the appropriate Government, while discharging its duty
to consider the representation, cannot depend upon the
views of the Board on such representation. It has to
consider the representation on its own without being
influenced by any such view of the Board. There was,
therefore, no reason for the Government to wait for
considering the petitioner’s representation until it
had received the report of the Advisory Board. As laid
down in Sk. Abdul Karim & ors. v.. State of West Bengal
(supra), the obligation of the appropriate
(1) [1970] I SCR 543.
(2) W.P. No. 246 of 1969, decided on September 10, 1969.
322
Government under Art. 22(5) is to consider the
representation made by the detenu as expeditiously as
possible. The consideration by the Government of such
representation has to be, as aforesaid, independent of
any opinion which may be expressed by the Advisory
Board.
The fact that Art. 22(5) enjoins upon the
detaining authority to afford to the detenu the
earliest opportunity to make a representation must
implicitly mean That such representation must, when
made, be considered and disposed of as expeditiously as
possible, otherwise, it is obvious that the obligation
to furnish the earliest opportunity to make a
representation loses both its purpose and meaning."
The same procedural safeguards were reaffirmed by this
Court in Jayanarayan Sukul v. State of West Bengal (1) and
Dhurus Kanu v. State of West Bengal.(2)
The High Court in this case, and the Delhi High Court
in Thaneshwar Singh v. The Union of India & ors.(3) appear
to be labouring under misconception that merely because
there is no express provision in s.8(b) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Act placing an obligation to forward the representation made
by the detenu along with the reference to the Advisory
Board, unlike those contained in s.9 of the Preventive
Detention Act, 1950 and s.10 of the Maintenance of Intemal
Security Act, 1971 there is no obligation cast on the
Government to consider the representation made by the detenu
before forwarding it to the Advisory Board.
We have no doubt in our mind that when liberty of the
subject is involved, whether be it under the Preventive
Detention Act or the Maintenance of Internal Security Act or
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, it is the bounden duty of the
court to satisfy itself that all the safeguards provided by
the law have been scrupulously observed and that the subject
is not deprived of his personal liberty otherwise than in
accordance with law.
The relevant Articles of the Constitution having a
bearing on this question is Art. 22. Two of these
safeguards, which relate to the observance of the principle
of natural justice and which a fortiori are intended to act
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12
as a check on the arbitrary exercise of power, are tor be
found in Art. 22(5) of the Constitution.
(1) [1970] 3 SCR 225.
(2) AIR 1975 SC 571.
(3) Cr W. No 6 of 1978 decided on September 25, 1978 (Delhi
High Court)
323
When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the ’grounds’ on which the order
has been made and shall afford him the earliest opportunity
of making representation against the order, These procedural
safeguards are ingrained in our system by judicial
interpretation. The power of preventive detention by the
Government under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, is necessarily
subject to the limitations enjoined on the exercise of such
power by Art 22(5) of the Constitution. as constructed by
this Court. Thus, this Court in Khudiram Das v. The State of
West Bengal & ors (1) observed:
"The constitutional imperatives enacted in this
article are two-fold: (1) the detaining authority must,
as soon as may be, that is, as soon as practicable
after the detention, communicate to the detenu the
grounds on which the order of detention has been made,
and (2) the detaining authority must afford the detenu
the earliest opportunity of making a representation
against the order of detention. These are the barest
minimum safeguards which must be abserved before an
executive authority can be permitted to preventively
detain a person and thereby drown his right of personal
liberty in the name of public good and social
security."
This has always been the view consistently taken by this
Court in a series of decision. It is not necessary to burden
this judgment with citations of these decisions. The view to
the contrary taken by the Bombay and the Delhi High Courts
that these procedural safe- guards are not available to a
person detained under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act is clearly wrong.
The Constitution is all pervasive. All laws made by a
State must, therefore, yield to constitutional limitations
and restrictions. The citizen’s right to personal liberty is
guaranteed by Article 22 irrespective of his political
beliefs, class, creed or religion. This Court has forged
certain procedural safeguards in the case of preventive
detention of citizens. These safeguards might be designated
as a regulative ’Postulate of Respect’, that is, respect for
the intrinsic dignity of the human person.
(1) AIR 1975 SC 550.
324
In pursuit of the idealistic considerations as to the
inherent worth and dignity of men, the Parliament, in the
light of the experience gained recently, repealed the
Maintenance of Internal Security Act. The repeal of that Act
is necessitated to promote the citizen’s right to personal
liberty, which is a fundamental and pervasive theme of the
Constitution, to guard against the preventive detention of a
person for political beliefs. This was also in accord with
the recommendation of the Law Commission in its Forty-
seventh Report, p. 2, para 1.4, that preventive detention
should be retained only for preventing anti social and
economic offences. The repeal of the Maintenance of Internal
Security Act and the retention of the Conservation of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12
Foreign Exchange and Prevention of Smuggling Activities Act,
however, does not imply that preventive detention, which is
an anachronism in a democratic society like ours, can be
freely used, without any power of judicial review and
without any checks and balances, against persons engaged in
anti-social and economic offences. This assumption by the
two High Courts ignores centuries of judicial lawmaking when
it denies the competence of courts to weigh competing social
interests. The courts have always viewed with disfavour the
detention without trial whatever be the nature of offence.
The detention of individuals without trial for any length of
time, howsoever short, is wholly inconsistent with the basic
ideas of our Government.
To put it less euphemistically, the alternative is the
renunciation of judicial review itself, and acceptance of
the intolerable principle that the Government is the judge
of its own powers. So, this Court observed in Prabhu Dayal
Deorah v. District Magistrate, Kamrup:
"We say and we think it is necessary to repeat,
that the gravity of the evil to the community resulting
from antisocial activities can never furnish an
adequate reason for invading, the personal liberty of a
citizen, except in accordance with the procedure
established by the constitution and the laws. The
history of personal liberty is largely the history of
insistence on observance of procedure. Observance of
procedure has been the bastion against wanton assaults
on personal liberty over the years. Under our
Constitution, the only guarantee of personal liberty
for person is that he shall not be deprived of it
except in accordance with the procedure established by
law. The need today for maintenance of supplies and
services essential to the community cannot be over-
emphasized. There will be no social security without
maintenance of adequate supplies
(1) [1974] 2 S.C.R. 12 at 22-23.
325
and services essential to the community. But social
security is not the only goal of a good society. There
are other values in a society. Our country is taking
singular pride in the democratic ideals enshrined in
its Constitution and the most cherished of these ideals
is personal liberty. It would indeed be ironic if, in
the name of social security, we would sanction the
subversion of this liberty."
The constitutional safeguards embodied in Art. 22(5) of
the Constitution, as construed by this Court, must,
therefore, be read into the provisions of s. 8(b) of
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 to prevent any arbitrary executive
action.
In the instant case, however, there was no infraction
or the constitutional safeguards enshrined in Art. 22(5). We
are satisfied that there was no failure on the part of the
Government to discharge its obligation under Art. 22(5). The
records of the Government as well as of Advisory Board have
been placed before us It clearly shows that the Government
had forwarded the two representations made by the appellant
on the 4th and 6th of March, 1978, alongwith its comments in
writing together with a forwarding letter on the 9th of
March, 1978. From a bare perusal of the forwarding letter
and the accompanying para-wise comments in writing, it is
amply clear that the Government had already formed an
opinion that the order of detention was in conformity with
its powers under the law. It cannot, therefore, be said that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
the Government in rejecting the representations made by the
appellant by its order dated 18th March, 1978 was, in any
way, influenced by the views expressed by the Board. Though,
the Government was represented at the hearing by the Deputy
Secretary, Ministry of Finance, Revenue Department, and the
Assistant Collector, Customs, Bulsar, it is nobody’s case
that the Advisory Board had at the hearing indicated its
mind as to whether there was sufficient cause for detention.
On the contrary, the telegram sent by the appellant on the
16th March, 1978 ex facie shows that the Board had not
expressed its mind at the hearing. It is, therefore,
irrefutable that the Government had taken a decision
uninfluenced by what transpired at the hearing before the
Board. The matter was dealt with by the Government at all
levels, and the detaining authority had come to an
independent conclusion of his own by applying his mind to
the facts and circumstances of the case. Here, similarly the
Board by its report dated the 10th April, 1978 independently
arrived at its opinion that there was sufficient cause for
detention .
326
Learned counsel for the appellant next strenuously
contends that there was non-application of mind on the part
of the detaining authority. It was submitted that though the
order for detention was made with a view to preventing the
appellant from smuggling goods, i.e., under cl. (i) of sub-
s. (1) of s. 3 of the Act, his case on the facts revealed in
the grounds for detention clearly fell under cl.(ii) of sub-
s.(1) of s. 3, as he could not, by any stretch of
imagination, be treated to be a smuggler but he was only an
abettor. May be, he instigated, organised and facilitated
the act of smuggling, but it is said, the actual smuggling
of the contraband goods, was by others. His act, there fore,
constituted abetment of smuggling for which there is a
separate clause under s. 3(i)(ii). The order of detention
cannot, therefore, be justified under s.3(1) (i). Applying a
wrong clause, it is urged, shows non-application of mind. We
are afraid, the learned counsel is stretching the argument
too fine.
Section 3(1) of the Act, so far material reads:
The Central Government or the State Government or
any officer of the Central Government, not below the
rank of a Joint Secretary to that Government, specially
em powered for the purposes of this section by that
Government, or any officer of a State Government, not
below the rank of a Secretary to that Government,
specially em powered for the purposes of this section
by that Government, may, if satisfied, with respect to
any person (including a foreigner), that, with a view
to preventing him from acting in any manner prejudicial
to the conservation or augmentation of foreign exchange
or with a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or;"
There is, no doubt, a distinction between an act of
smuggling and abetting the smuggling of goods for purposes
of preventive detention under s. 3 (1) of the Act.
Nonetheless, the term "smuggling’ as defined in s. 2(e) of
the Act has the same meaning as in s. 2(39) the Customs Act,
1962, which, when read with s. 111 of that Act, is wide
enough to include and make liable not only the actual
smuggler but also persons abetting the smuggling or
contraband goods as well as all persons dealing in such
goods, etc. Though the provisions of cls. (i) and (ii) of
sub-s(1) of s. 3 of the Act may operate on different fields,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
which may sometimes, as here, overlap, still a wider meaning
is given
327
to the term ’smuggling in s. 2(e) of the Act, with a view to
broaden the scope of preventive detention. Sub-section (1)
of s. 3 of the Act provides for the different grounds of
detention. Clause (i) relates lo smuggling of goods, clause
(ii) relates to abetting the smuggling of goods, clause
(iii) relates to engaging in transporting or concealing or
keeping smuggled goods, clause (v) relates to harbouring
persons engaged in smuggling goods or in abetting the
smuggling of goods. It must, therefore, be assumed that the
intention of the legislature was to treat the smuggling of
goods and abetting the smuggling of goods as grounds
separate and distinct, and both are separate grounds for
detention i.e., to take in all such activities which result
in accomplishment of smuggling of contraband goods.
In a case like the present, where there is a widespread
network employed by a person, it cannot be said that he is
not engaged in the act of smuggling. It is accepted before
us that the appellant. instigated, organised and facilitated
the smuggling of the contraband goods in question. Not only
that but he is really the person to whom the goods belonged.
The appellant went to the extent of going to Dubai for
purchasing the contraband goods, had thereafter taken
delivery of the same at Dubai and had them loaded into the
vessel; the vessel actually belonged to the appellant and
the crew members were engaged by his agent Siddiq Hussain,
who was sent from Bombay to Dubai to bring the vessel. He
took charge of the vessel as a tindel and but for the fact
that the rudder of the vessel failed, the contraband
stainless steel rolls would have landed in the creek near
The factory of the appellant.
It is clear that Kunji Mohmed, in whose name the vessel
’Jamnaprasad’ BLS-61 was registered, was merely a dummy but
the vessel actually belonged to the appellant, who had
purchased it from one Kasam Jamal for a sum of Rs. 40,000/-.
It was he who got the vessel repaired at Bombay and an oil
engine fitted; and, he, through his agent Siddiq Hussain
Sup, engaged the members of the crew. It appears that the
appellant left for Dubai on the 18th of May, 1977 by air and
returned to Bombay on the 2nd June, 1977. He prolonged this
stay at Dubai/Abu Dhabi for seven days and had to pay a fine
of 100 Dirhams per day for his over-stay.
During his period of stay at Dubai, he purchased 20
rolls of stainless steel sheets worth rupees 20 lacs. It
also appears that the appellant and Kunji Mohmed wanted to
load the whole of the contraband good into the vessel but
the driver Ali and Amad Mamad, the tindel, refused to carry
such a heavy cargo. The appellant told them that
328
he would go to Bombay and send Siddiq Hussain Sup. It
further appears that the oil engine in the vessel was
replaced, with his concurrence, with a new diesel engine.
After his departure, only 12 rolls of stainless steel sheets
could be loaded in the vessel by Kunji Mohmed and Amad
Mamad. There after, while the vessel was on its voyage to
India it developed engine trouble and had to remain at sea
for about ten days whereafter, it returned to Sarjah port in
Dubai. In the meanwhile, Siddiq Hussain Sup had reached
there from Bombay, on instructions from the appellant, and
took charge of the vessel as tindel. The vessel again left
Sarjah port but had W remain in the sea near Khodgam for
about 8 to 10 days due to stormy weather. After a voyage of
about 6 to 7 days, the vessel reached near the coast of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12
India outside the creek where it was found grounded. It had
to be anchored at a place known to Siddiq Hussain Sup, that
is, near about the factory of Umrao Industries belonging to
the appellant in village Kim, but the crew members lost the
track and had to move around the creek for about 4 days
because the rudder had failed. Then lt entered the aforesaid
creek, some 20 kms. away from the factory, where it ran
aground due to damage to the rudder.
During a search of the house of Kunji Mohmed, certain
documents relating to the repairs of vessel No. BLS-61 and a
dairy containing telephone Nos. 395279, 375943 and 361973
and also one postal receipt No. 55955 issued by Jamnagar
Post office showing looking of a trunk call to telephone
No. 395279 or 375943 were found. The first two telephone
numbers have been installed at the Bombay office of the
appellant, while the third is at his residence at Bombay.
The postal receipt No. 55955 showed that this trunk call
from Jamnagar was booked for Bombay in the name of the
appellant. Two more trunk call ticket Nos. L. 0285 and 158,
dated 18th June, 1977 showed that the former trunk call was
booked by him to Okha telephone No. 91 with Siddiq Hussain
Sup as P.P., while the latter was in respect of the return
call (lightening) made by the appellant to the aforesaid
okha telephone. The trunk call booked from telephone No. 91
okha was to the appellant’s office telephone No. 395279 in
Bombay with P. P. Babubhai.
Obviously, the over-stay of the appellant at Dubai was
in connection with the loading of the contraband stainless
steel sheet rolls, which have been valued at Rs. 15,44,400/-
. The synchronising of the visit with the taking of the
vessel to Dubai, and then loading of the stainless steel
rolls for the purpose of transportation to India, are very
significant and unimpeachable circumstances to show the
smuggling pro pensities of the appellant.
329
It is quite clear from the facts set out in the grounds
of detention, that the appellant was the person who was
actually engaged in the act of smuggling of the contraband
stainless steel rolls into the Indian customs waters. It is,
therefore, clear that for all intents and purposes the
appellant was the actual smuggler and not a mere abettor.
Furthermore, the activities of the appellant were such that
his case would be covered by both clauses (i) and (ii) of s.
3(1) of the Act. Thus, there was due application of mind.
It is manifest that the appellant could in the instant
case be detained under sub-s.(1) of s. 3 of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 both under clauses (i) and (ii) thereof. In any
case, even assuming that the appellant was merely an abettor
of the smuggling of 12 rolls of stainless steel sheets on
this occasion, still his activities in this transaction
afforded sufficient grounds for the prognosis that he would
have himself indulged in actual smuggling of the balance lot
of 8 rolls of stainless steel sheets remaining behind at
Dubai, if not detained, and as such cl. (i) s. 3(1) of the
Act was properly invoked.
In the result, both the appeal as well as the writ
petition must fail and are dismissed. There shall be no
order as to cost
P.B.R. Appeal and Petition dismissed.
3-978SCI/78
330