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PETITIONER:

SHIV RATAN MAKIM S/O NANDLAL MAKIM

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT16/12/1985

BENCH:

BHAGWATI, P.N. (CJ)

BENCH:

BHAGWATI, P.N. (CJ)

PATHAK, R.S.

CITATION:

1986 AIR 610 1985 SCR Supl. (3) 843

1986 SCC (1) 404 1985 SCALE (2)1504

CITATOR INFO :

R 1986 SC2177 (48)

F 1989 SC1282 (9)

RF 1990 SC 225 (9)

ACT:

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974, s.3 - Detention order -

Solitary incident - Whether sufficient for detention - Time

gap between incident and detention order - Whether vitiates

order - Detention order - Whether can be made to subvert,

supplant or substitute the punitive law.

HEADNOTE:

The petitioner while returning from Nepal was

intercepted by the Customs Officers in the morning of 20th

November, 1984 and searched in the presence of independent

witnesses. From his trousers' pocket two pieces of foreign

marked gold in the shape of round tablets weighing 373.800

gms. were recovered and seized under the Customs Act. The

petitioner was arrested and on interrogation he filed a

written statement admitting the search and the seizure. On

an application made by him he was released on bail.

The second respondent thereafter passed an order dated

11th April 1985 under s. 3 of COFEPOSA Act directing the

detention of the petitioner. The representation of the

petitioner was rejected by the Central Government. The

advisory Board opined that there was sufficient cause for

the detention of the petitioner and the Central Government

confirmed the detention order directing detention for one

year.

The petitioner challenged the validity of the order of

detention before this Court contending: (i) that the order

of detention was based on a solitary incident and apart from

this incident there were no other incidents showing that he

was habitually smuggling gold, (ii) that considerable time

had elapsed between the date of recovery of gold pieces and

the detention order, and this long lapse of time showed that

the detention order was vitiated by malafides, and (iii)

that the detention order was made with a view to

circumventing or by-passing the criminal prosecution and

that the power of detention cannot be used to subvert,

supplant or substitute the punitive law.

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844

Dismissing the petition,

^

HELD : 1. Having regard to the nature of the activity

and the circumstances in which the petitioner was caught

smuggling gold, and the facts set out by him in his written

statement, the second respondent was justified in reaching

the satisfaction that the petitioner was engaged in

smuggling gold and that with a view to preventing him, it

was necessary to detain him. [847 E-F]

2. Where an unreasonably long period has elapsed

between the date of the incident and the date of the order

of detention, an inference may legitimately be drawn that

there is no nexus between the incident and the order of

detention and the order of detention may be liable to be

struck down as invalid. But there can be no hard and fast

rule as to what is the length of time which should be

regarded sufficient to snap the nexus between the incident

and the order of detention. [848 A-B]

In the instant case, the lapse of time between the date

of the incident and the date of order of detention has been

sufficiently explained by the detaining authority. No

inference of malafides can, therefore, be drawn. [848 B-C]

3. The object of making an order of detention is

preventive while the object of a criminal prosecution is

punitive. Even if a criminal prosecution fails and an order

of detention is then made, it would not invalidate the order

of detention. If an order of detention is made only in order

to bypass a criminal prosecution which may be irksome

because of the inconvenience of proving guilt in a Court of

law, it would certainly be an abuse of the power of

preventive detention and the order of detention would be

bad. But if the object of making the order of detention is

to prevent the commission in future of activities injurious

to the community, it would be a perfectly legitimate

exercise of power to make the order of detention. The Court

would have to consider all the facts and circumstances of

the case in order to determine on which side of the line the

order of detention falls. [848 F; 849 B-D]

In the instant case, the petitioner was caught in the

act of smuggling gold and the circumstances in which the

gold was being smuggled as also the facts set out in the

written statement of the petitioner clearly indicate that

the petitioner was engaged in the activity of smuggling

gold. It, therefore, cannot be said that the order of

detention was passed by the second

845

respondent with a view to subverting, supplanting or

substituting the criminal law of the land. The order of

detention was passed plainly and indubitably with a view to

preventing the petitioner from continuing the activity of

smuggling and it was, therefore, a perfectly valid order of

detention. [849 D-F]

Subbharta v. State of West Bengal, [1973] 3 SCC 250

relied upon.

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition (Criminal) No.

1122 of 1985.

(Under Article 32 of the Constitution of India)

Soli J. Sorabji, A.K. Nag and K.D. Prasad for the

Petitioner.

N.C. Tulkdar, and R.N. Poddar for the Respondents.

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The Judgment of the Court was delivered by

BHAGWATI, CJ. This is a writ petition filed by the

petitioner for a writ of habeas corpus praying for

revocation of the order of detention dated 11th April 1985

passed by respondent No. 2, Joint Secretary to the

Government of India, against the petitioner under Section 3

of the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act 1974 (hereinafter referred to as

COFEPOSA Act). We heard the writ petition on 18th September

1985 and after hearing the arguments advanced on both sides,

we passed an order on the same date dismissing the writ

petition. We now proceed to give our reasons for making that

order.

On the basis of information received by them, the

Customs Officers at Panitanki Land Customs Station

intercepted an auto-rickshaw bearing No. WGY-9854 coming

from Nepal at about 8 a.m. in the morning of 20th November

1984. There were four occupants in the auto-rickshaw,

namely, the petitioner, Raj Kumar Gupta, Prem Prasad

Bothari, and Akadeshi Bahadur. These four occupants as well

as the driver of the auto-rickshaw were searched by the

Customs Officers in the presence of independent witnesses

and as a result of the search, no contraband goods were

found in the possession of the other three occupants and the

driver of the auto-rickshaw but from the pocket of the

trousers worn by the petitioner, two pieces of foreign

marked gold in the shape of round tablets weighing 373.800

gms. and valued at

846

Rs.74760 were recovered and they were seized under the

Customs Act. The petitioner was immediately arrested and on

interrogation, he filed a written statement on the same day

stating that he had been unemployed for a long time and that

he was introduced in the business of purchase and sale of

foreign marked gold by one Prakash Pincha and that on 16th

November 1984, he left Kathiar bus and arrived in Kathmandu

at 6 a.m. on 18th November 1984 and stayed at Kanji Lodge in

Kathmandu and as per prior arrangement, he contacted one

Dena Lal Aggarwal on Telephone No. 344889 and Dena Lal

Aggarwal thereupon came to Kanji Lodge along with the

requisite quantity of gold and he took delivery of gold from

Dena Lal Aggarwal and paid him Rs. 70400 in Indian currency

and thereafter he left Kathmandu at 1800 hrs. on 19th

November 1984 reaching Kakarbatha opposite Panitanki Land

Customs Station at 7.30 a.m. on 20th November 1984 and

boarded auto-rickshaw bearing No. WGY-9854 which later on

picked up the other passengers and ultimately the auto-

rickshaw was intercepted and he was searched resulting in

the seizure of two pieces of foreign market gold which were

in the pocket of his trousers. The petitioner was produced

before the Sub-Divisional Judicial Magistrate, Siliguri on

21st November 1984 and on an application made by him, he was

released on bail by the Sub-Divisional Judicial Magistrate

on 5th December 1984. The second respondent who is the Joint

Secretary to the Government of India thereafter passed an

order dated 11th April 1985 under Section 3 of COFEPOSA Act

directing that the petitioner be detained and kept in

custody in the Central Jail, Patna. The order of detention

recited that it was passed with a view to preventing the

petitioner from smuggling goods. The grounds on which the

order of detention was based were supplied to the petitioner

immediately on his arrest under the order of detention. The

petitioner made a representation dated 17th May 1985 against

the order of detention but the representation was rejected

by the Central Government on 23rd May 1985. The case of the

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petitioner was placed before the Advisory Board which gave

the opinion that there was sufficient cause for the

detention of the petitioner and on receipt of this opinion

of the Advisory Board, the Central Government by an order

dated 6th June 1985 confirmed the order of detention and

directed that the petitioner be detained for a period of one

year from the date of his detention, namely, 23rd April

1985. The petitioner thereupon preferred the present writ

petition challenging the validity of the order of detention

and seeking a direction that he may be released from

detention.

Though several grounds were taken in the writ petition

only three were seriously pressed by the learned counsel

appearing on behalf of the petitioner. The first ground was

that the order of

847

detention was based on the solitary incident in which two

pieces of foreign marked gold were recovered from the pocket

of the trousers of the petitioner on 20th November 1984 and

apart from this incident there were no other incidents

showing that he was habitually smuggling gold. The second

ground was that considerable time had elapsed between the

date when he was found to be carrying two pieces of foreign

marked gold and the date of the order of detention and this

long lapse of time showed that the order of detention was

vitiated by malafides. And the last ground was that the

order of detention was made with a view to circumventing or

bypassing the criminal prosecution instituted against the

petitioner and the detaining authority had not applied its

mind to the vital aspect that the power of detention cannot

be used to subvert, supplant or substitute the punitive law.

We do not think any of these three grounds can be sustained.

So far the first ground is concerned, it is obvious

that having regard to the nature of the activity of

smuggling, an inference could legitimately be drawn even

from a single incident of smuggling that the petitioner was

indulging in smuggling of gold moreover. The written

statement given by the petitioner clearly indicated that the

petitioner was engaged in the business of purchase and sale

of foreign marked gold and that this incident in which he

was caught was not a solitary incident. The facts stated by

the petitioner in his written statement could legitimately

give rise to the inference that the petitioner was a member

of a smuggling syndicate and merely because only one

incident of smuggling by the petitioner came to light, it

did not mean that this was the first and only occasion on

which the petitioner tried to smuggle gold. There can be no

doubt that having regard to the nature of the activity and

the circumstances in which the petitioner was caught

smuggling gold and the facts set out by him in his written

statement, the second respondent was justified in reaching

the satisfaction that the petitioner was engaged in

smuggling gold and that with a view to preventing him from

smuggling gold, it was necessary to detain him.

Turning to the second ground of challenge, we do not

think that the lapse of time between the date when two

pieces of foreign marked gold were found on the person of

the petitioner and the date of the order of detention was so

unduly long or that the explanation for such lapse of time

offered by the respondents was so unsatisfactory that we

should draw an inference of malafides on the part of the

detaining authority in making the order of detention. The

delay in making the order of detention has, in our opinion,

been satisfactorily explained by the time-chart set

848

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out as Annexure R-I to the counter affidavit filed by Shri

A.K. Agnihotri on behalf of the respondents. It is no doubt

true that where an unreasonably long period has elapsed

between the date of the incident and the date of the order

of detention, an inference may legitimately be drawn that

there is no nexus between the incident and the order of

detention and the order of detention may be liable to be

struck down as invalid. But there can be no hard and fast

rule as to what is the length of time which should be

regarded sufficient to snap the nexus between the incident

and the order of detention. We are of the view that here the

lapse of time between the date of the incident and the date

of the order of detention has been sufficiently explained by

the detaining authority and hence we are not prepared to

draw the inference of malafides merely because the order of

detention happened to be made about five months after the

petitioner was found carrying two pieces of foreign marked

gold.

The last ground urged on behalf of the petitioner is

also equally without substance. The contention of the

petitioner was that criminal prosecution cannot be

circumvented or short-circuited by ready resort to

preventive detention and the power of detention cannot be

used to subvert, supplant or substitute the punitive law of

the land. The petitioner urged that no material has been

disclosed by the respondents to establish the existence of

any exceptional reasons which would justify recourse to

preventive detention in the present case such as witnesses

being afraid to depose against the detenu in court or other

genuine difficulties in bringing the culprits to book in a

criminal court under the ordinary law of the land and in the

absence of such reasons before the detaining authority, it

was not competent to the detaining authority to make the

order of detention by passing the criminal prosecution. This

argument completely overlooks the fact that the object of

making an order of detention is preventive while the object

of a criminal prosecution is punitive. Even if a criminal

prosecution fails and an order of detention is then made, it

would not invalidate the order of detention, because, as

pointed out by this court in Subharta v. State of West

Bengal, [1973] 3 S.C.C. 250, "the purpose of preventive

detention being different from conviction and punishment and

subjective satisfaction being necessary in the former while

proof beyond reasonable doubt being necessary in the

latter", the order of detention would not be bad merely

because the criminal prosecution has failed. It was pointed

out by this Court in that case that "the Act creates in the

authority concerned a new

849

jurisdiction to make orders for preventive detention on

their subjective satisfaction on grounds of suspicion of

commission in future of acts prejudicial to the community in

general. This Jurisdiction is different from that of

judicial trial in courts for offences and of judicial orders

for prevention of offences. Even unsuccessful judicial trial

or proceeding would therefore not operate as a bar to a

detention order or render it malafide". If the failure of

the criminal prosecution can be no bar to the making of an

order of detention, a fortiorari the mere fact that a

criminal prosecution can be instituted cannot operate as a

bar against the making of an order of detention. If an order

of detention is made only in order to by pass a criminal

prosecution which may be irksome because of the

inconvenience of proving guilt in a court of law, it would

certainly be an abuse of the power of preventive detention

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and the order of detention would be bad. But if the object

of making the order of detention is to prevent the

commission in future of activities injurious to the

community, it would be a perfectly legitimate exercise of

power to make the order of detention. The Court would have

to consider all the facts and circumstances of the case in

order to determine on which side of the line the order of

detention falls. Here the petitioner was caught in the act

of smuggling gold and the circumstances in which the gold

was being smuggled as also the facts set out in the written

statement of the petitioner clearly indicate that the

petitioner was engaged in the activity of smuggling gold and

if that be so, it is not possible to say that the order of

detention was passed by the second respondent with a view to

subverting, supplanting or substituting the criminal law of

the land. The order of detention was plainly and indubitably

with a view to preventing the petitioner from continuing the

activity of smuggling and it was therefore a perfectly valid

order of detention.

These were the reasons for which we sustained the order

of detention and dismissed the writ petition.

A.P.J. Petition dismissed.

850