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PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

ARVIND SHERGILL & ANR.

DATE OF JUDGMENT: 13/09/2000

BENCH:

S. RAJENDRA BABU, J. & D.P. MOHAPATRA, J.

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, J. :-

L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

Harinder Pal Singh Shergill, the husband of respondent

No. 1, was arrested on 3.8.1998 by the Customs Authorities

on the suspicion that he was in possession of foreign

currency of 66217 US Dollars at Sahar International Airport,

Mumbai and a statement made by him under Section 108 of the

Customs Act was recorded. For seizure of the foreign

currency a Panchnama was drawn. Then the said Shergill was

produced before the Chief Metropolitan Magistrate, Mumbai,

on 4.8.1998 who remanded him to judicial custody till

10.8.1998. Thereafter, the said Shergill was granted bail

on 14.8.1998 by the Additional Chief Metropolitan

Magistrate, Mumbai. Subsequently, on 17.11.1998 application

filed by the appellants for cancellation of the bail in

respect of the said Shergill was dismissed. On the same

date appellant No. 2 passed an order directing the

detention of the said Shergill in the custody of the Central

Prison, Nasik and the grounds accompanying the said order

indicated that the same was made under Section 3(1) of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (for short COFEPOSA Act) on the basis

that with a view to preventing him from smuggling of goods

in future it was necessary to make the order. In the

grounds it was further stated that though the said Shergill

was found to have indulged in a solitary incident, the

organised manner in which he indulged in such activity

reflected his potentiality and propensity to continue to

indulge in such activities in future and, therefore, it was

necessary to detain him so as to prevent him from smuggling

the goods. This was challenged by wife of the said Shergill

by a writ petition filed before the High Court even before

the said Shergill was apprehended by the concerned

authorities. In the High Court on behalf of the appellants

two preliminary contentions were raised one, as to the

jurisdiction of the court and, other that it was a pre-

detention case and, therefore, the court should not

interfere with the same. The appellants also referred to

various decisions on this aspect of the matter. The High

Court held against the appellants in both the points.

However, in the view we propose to take in the matter, we

consider it unnecessary to consider the preliminary

questions raised in the case.

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We turn now to the merits of the matter. The High Court

noticed that Section 3 of the COFEPOSA Act is a very drastic

provision as also the stand of the respondents husband that

his possession of the said foreign currency was valid.

However, the High Court stated that it would not like to

examine the merits of the case at this juncture because the

adjudication proceedings and criminal case arising under the

Customs Act are still pending. The High Court further

observed as follows :-

It is not the case of the Union of India that the

husband of the petitioner earlier had been taking out the

currency to the foreign lands. Whether for a solitary act,

even if it is assumed for the sake of arguments as correct,

would it be proper on the part of the U.O.I. to invoke the

provisions of Section 3(1) of the COFEPOSA Act. In this

view of this Court, it may not be worthwhile as it defeats

the very object of the Act which is preventive in nature.

If the husband of the petitioner has committed a substantive

offence, that offence should be tried by a competent court

of jurisdiction but if in the adjudication proceedings, the

husband of the petitioner is in position to explain the

possession of the currency, it will have a direct bearing on

the complaint which has been filed by the authorities before

the Chief Metropolitan Magistrate, Mumbai. In the view of

this court, the impugned order has been passed in haste

without application of mind as to whether the impugned act

attributed to the husband of the petitioner was, in fact,

with the object of conservation and augmentation of foreign

exchange.

Therefore, this Court is of the opinion that the

impugned detention order, Annexure P-7 with the grounds of

detention, cannot be sustained in the eyes of law and has to

be quashed and I order accordingly.

The High Court has virtually decided the matter as if it

was sitting in appeal on the order passed by the detaining

authority. Action by way of preventive detention is largely

based on suspicion and the court is not an appropriate forum

to investigate the question whether the circumstances of

suspicion exist warranting the restraint on a person. The

language of Section 3 clearly indicates that the

responsibility for making a detention order rests upon the

detaining authority who alone is entrusted with the duty in

that regard and it will be a serious derogation from that

responsibility if the court substitutes its judgment for the

satisfaction of that authority on an investigation

undertaken regarding sufficiency of the materials on which

such satisfaction was grounded. The court can only examine

the grounds disclosed by the Government in order to see

whether they are relevant to the object which the

legislation has in view, that is, to prevent the detenu from

engaging in smuggling activity. The said satisfaction is

subjective in nature and such a satisfaction, if based on

relevant grounds, cannot be stated to be invalid. The

concerned authorities have to take note of the various facts

including the fact that this was a solitary incident in the

case of the detenu and that he had been granted bail earlier

in respect of which the application for cancellation of the

same was made but was rejected by the court. In this case,

there has been due application of mind by the concerned

authority to that aspect of the matter as we have indicated

in the course of narration of facts. Therefore, the view

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taken by the High Court in the circumstances of the case

cannot be sustained. However, the learned counsel for the

respondent submitted that the order of detention was made on

17.11.1998, whereas the writ petition was filed on 21.4.1999

and order of stay was passed on the same date and

subsequently that order continued till the disposal of the

matter on 4.8.1999. Thus, he submitted that the facts upon

which detention had been ordered and the actual detention

not being effected till today, the nexus thereto has snapped

and in the light of the decision of this Court in Sunil

Fulchand Shah v. Union of India & Ors., 2000 (3) SCC 409,

it would not be appropriate for this Court to direct

detention of the husband of the respondent now. A bench of

Five Judges of this Court examined this matter and majority

of Judges held that a detenu need not be sent back to

undergo the remaining period of detention after a long lapse

of time when even the maximum prescribed period intended in

the order of detention has expired, unless there is still a

proximate nexus between the period of detention prescribed

when the detenu was required to be detained and the date

when the detenu is required to be detained pursuant to the

appellate order and the State is able to satisfy the court

about the desirability of further or continued detention.

It was also made clear therein that where a long time has

not lapsed or the period of detention initially fixed in the

order of detention has also not expired, the detenu may be

sent back to undergo the balance period of detention.

Therefore, in the present case, what we have to look is

whether any long period has lapsed as it has happened in

Sunil Fulchand Shahs case (supra) wherein the petitioner

was directed to be detained for a period of one year with

effect from 4.7.1986 and the said period of one year expired

on 3.7.1987 and the matter was taken upon for hearing only

on 16.2.2000. In the circumstance, when the period of

detention itself had expired 13 years earlier, then this

Court came to the conclusion as aforesaid. However, this is

not the position in the present case at all. Husband of the

respondent evaded arrest as is obvious and obtained an

interim order from the High Court which was in force till

the disposal of the writ petition and thereafter on quashing

of the detention order question of detention made did not

arise now. Therefore, we do not think that it would be

appropriate to state that merely by passage of time the

nexus between the object for which the husband of the

respondent is sought to be detained and the circumstances in

which he was ordered to be detained has snapped. However,

we make it clear that if those circumstances did not exist,

then it would be appropriate for the Government to revoke

the order of detention and, if still certain circumstances

as apprehended in the order of detention exist, it will be

open to the Government to enforce the same. Making this

position clear, we allow this appeal and set aside the order

made by the High Court.