Mr. Prithvi Sovern Kuntal v. The State Of Maharashtra & Ors.

A.M Khanwilkar, J.:— By this writ petition, under Article 226 of the Constitution of India, the Petitioner, who is the younger brother of one Abhishek Sovern Kuntal (hereinafter referred to as the Detenu), has challenged the detention order passed against the said Abhishek Sovern Kuntal, dated May 30, 2000, under section 3(1) of the COFEPOSA Act, 1974.

2. Although several contentions have been raised in the present writ petition, however, since we are inclined to accept the ground of challenge that the detention order suffers from non-application of mind, we have not dealt with the other contentions in the present judgment.

3. The Respondent No. 2, Detaining Authority, issued detention order on May 30, 2000 indicating therein that power under section 3(1) of COFEPOSA Act of detaining the said Abhishek Sovern Kuntal was being exercised with a view to prevent him in future from abetting smuggling of goods. Along with the said detention order the grounds of detention and the subjective satisfaction recorded by the Detaining Authority was furnished to the said detenu. The grounds of detention, however, records as under:

“From the prevailing circumstances, it is apparent that you have knowingly been dealing in smuggling of goods. I am satisfied that unless detained you are likely to continue to engage in aforesaid prejudicial activities in future also and therefore it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with view to preventing you in future from smuggling of goods.”

4. The contention raised before us is that the reason for detention indicated in the detention order is at variance with the reason mentioned in the grounds of detention on which basis the Detaining Authority recorded its subjective satisfaction. In other words, what is contended is that the detention order mentions reason for detaining the detenu to prevent him from abetting of smuggling of goods, whereas the grounds of detention mentions the reason as to prevent the detenu in future from smuggling of goods. It is contended that there is marked distinction between abetting the smuggling of goods and to engage oneself in the activity of smuggling of goods. The Petitioner, therefore, contends that the detention order clearly suffers from the vice of non-application of mind because of the said variance in the reason mentioned in the detention order and the grounds of detention. It is contended that besides the Impugned order being bad on account of non-application of mind, the same will have to be frowned upon for having affected the precious right of the detenu to make effective representation. Inasmuch as, the detenu was confused and mislead because of the said variance in the impugned order and the grounds of detention. In support of this proposition, reliance has been placed on the decision of the Apex Court in Lala Ram v. State of U.P, as well as certain unreported decisions of this Court.

5. The learned A.P.P on the other hand contends that the grounds of detention be read along with the statements and documents furnished to the detenu along with the said grounds. It is submitted that the entire record furnished to the detenu will be relevant to cull out as to whether there is variance in the order and the grounds; and if it is found that the order can be supported on the basis of any statement/document then no fault can be found with the detention order either on the touch stone of non-application of mind or having caused prejudice to the detenu to make effective representation. She submits that if it is found that there is material on record to support the conclusion reached in the impugned order that the same has been passed with a view to preventing the detenu in future from abetting smuggling of goods then the ground of non-application of mind cannot be pressed into service. The learned Counsel further contends that there can be no difference between abetting smuggling of goods and the activity of smuggling of goods itself, for both the offences concern the same transaction within the meaning of the provisions of the Customs Act. The learned Counsel has placed reliance, particularly on para 34 of the decision of the Apex Court in Narendra Purshotam Umrao v. B.B Gujral, and Vijayaben Purshotam v. B.B Gujral, Reliance is also placed on the decision of this Court in 1995 (3) Cri. L.J 2533 as well as unreported decision of this Court in W.P (Cri.) 350 of 1997 decided on 29th August 1997 and 1st September 1997 and Writ Petition No. 561 of 1989 decided on 21st July, 1989. The decision of this Court in Writ Petition No. 561 of 1989 is pressed into service to contend that it is essential to read the order along with all other documents together and not in isolation. In para 4 of the said decision this Court observed that the order has to be read with grounds of detention and the legality and propriety of the detention has to be judged after taking composite view of the order and the grounds.

6. After considering the rival submissions we find that the issue which arises for consideration in the present case is no more res integra. The Apex Court in (1979) 2 SCC 637 : AIR 1979 SC 420, particularly in para 27, has concluded that the activities contemplated by clauses (i) to (v) of section 3(1) of the Act are not over-lapping and the Legislature was quite conscious in that behalf. The Apex Court has thus held that the activities contemplated by clause (i) to (v) in section 3(1), each of them are distinct activities. There is no doubt that so far as abetting smuggling of goods is concerned the same is governed by clause (ii) whereas the activity of smuggling is governed by clause (i). As such there is marked distinction between charging a person of indulging in abetting the smuggling of goods and that of engaging in the activity of smuggling of goods. In criminal jurisprudence also it is well settled that abetment of an offence is not a minor offence and the ingredients that must be proved for the abetment of an offence are quite different from those required to establish the substantive offence. It is also well settled that the charge of substantive offence as such gives no intimation of a trial to be held for abetment. Consequently when the man is accused of a substantive offence he may not be conscious that he will have to meet an imputation of collateral circumstances constituting the substantive offence itself. Thus offence of abetment is distinct than the substantive offence and both the offences are exclusive. This proposition is enunciated in the decision in Navinchand v. The State,.

7. We, therefore, have no hesitation to record that when a person is sought to be detained to prevent him in future from abetting the smuggling of goods, the subjective satisfaction that will have to be recorded will be surely on a different consideration than the one against a detenu who is sought to be detained to prevent him in future from smuggling of goods.

8. As such, the variance in the order referring the reason for detention of preventing the detenu in future from abetting the smuggling of goods, would clearly suffer from the vice of non-application of mind of the Detaining Authority, for both the situations are exclusive and not over-lapping at all. As a necessary corollary such an order cannot stand the test of judicial scrutiny. In support of this proposition we would refer to the unreported decision of this Court which has been relied upon by the Petitioner dated 4.3.1993 in Criminal Writ Petition No. 1105 of 1992. In the said case, similar contention was raised as to the efficacy of the order of detention which shows that the satisfaction of the Detaining Authority is recorded in the detention order with regard to the alleged prejudicial activity of the detenu falling under section 3(1)(i) of the COFEPOSA Act i.e “smuggling goods”, whereas a perusal of the grounds of detention shows that the satisfaction of the Detaining Authority was recorded in the grounds with regard to the alleged prejudicial activity of the detenu falling under section 3(1)(iii) of the said Act i.e “engaging in transporting smuggled goods”. While dealing with the said contention this Court held that two grounds being at variance reflects improper application of mind and/or non-application of mind on the part of the Detaining Authority and that the detention order was passed in a casual and mechanical manner. In the said decision this Court also referred to another decision of this Court in Islamuddin Badruddin Shaikh v. L. Hmingliana, wherein it was held that because of the said variance the detenu was prevented from making an effective representation under Article 22(5) of the Constitution of India for which reason the detention order was required to be struck down. In another unreported decision of this Court in Khimaram Chowdhary v. The State of Maharashtra, this Court clearly observed that it is well settled that “smuggling” and “transporting” are distinct and different and that the grounds though may be overlapping in some cases are distinct, for which reason the Detaining Authority while passing order and furnishing grounds of detention must clearly indicate as to why the order is passed. This Court, in the said matter relied on another unreported decision of this Court in Criminal Writ Petition No. 114 of 1990 decided on 4th April, 1990 which had taken identical view. Reliance has also been placed on the unreported judgment of this Court in Rameshchandra Ramji Shah v. State of Maharashtra, where this Court has held that because of variance of subjective satisfaction reflected in the grounds of detention and the order of detention, it must follow that the order of detention suffers from non-application of mind. Another unreported decision relied upon by the Petitioner is in Shantisingh Chagansingh Chauhan v. State of Maharashtra, which has held that if there is variance in the grounds of detention and the order of detention such an order cannot be sustained. In another unreported case of this Court relied upon by the Petitioner, in Hajarimal Veerchand Jain v. State of Maharashtra, facts of the said case are identical to the present case. In the said case the order of detention mentioned that the Government of Maharashtra was satisfied that with a view to prevent the detenu from abetting the smuggling of goods, it was necessary to detain him, whereas the conclusion on the basis of the material placed before the detaining authority it recorded that the detenu was indulging in smuggling activities and to prevent him from indulging in such prejudicial activities in future the Government considered it necessary to detain him. We are concerned with similar situation in the present case. In the said case, this Court, after referring to the decision of the Apex Court in (1979) 2 SCC 637 : AIR 1979 SC 420, and on considering different shades of arguments advanced before it, concluded that the Detaining Authority had not come to the conclusion that the detenu was indulging in abetting of smuggling of goods. It was thus held that the order of detention which seeks to prevent the detenu from abetment of smuggling of goods, therefore, has absolutely no nexus to the grounds of detention of preventing the detenu from indulging in smuggling activities. In the said decision it is observed that ‘there is no substance in the contention that the activities contemplated by clauses (i) to (v) are necessarily over-lapping. It is now well settled that whether in a given case two or more activities attributed to the detenu overlap or not is a question of fact to be determined on the basis of the nature, frequency and volume of smuggling activities”. The said decision further observes that “the order of detention which seeks to prevent the detenu from abetment of smuggling of goods, therefore, has absolutely no nexus to the grounds of detention apart from the fact that the material placed before the Detaining Authority does not justify the conclusion that the petitioner was abetting smuggling of goods. The detention order therefore deserves to be quashed on this ground alone.”

9. We have no hesitation in adopting the view expressed in the aforesaid decision of this Court dated 12th November, 1984 in Hajarimal Jain's case, for even in the present case on close scrutiny of the grounds of detention furnished to the detenu there is nothing to indicate or even a slightest suggestion that the detenu was engaged in abetting the smuggling of goods. In other words, there was no material on record to justify the satisfaction recorded in the detention order that with a view to prevent the detenu from engaging in abetting in smuggling of goods in future or even in the past. In the circumstances we have no hesitation in quashing the detention order passed against the detenu in the present case on the ground of non-application of mind.

10. However, since the learned Counsel for the Respondent has referred to the decision of the Apex Court in (1979) 2 SCC 637 : AIR 1979 SC 420, particularly paras 33 and 34 thereof, to contend that on facts it can be presumed that detenu was the person who was actually engaged in abetting smuggling of goods and more over since there was ample material on record to indicate that the detenu was actually indulging in smuggling and not a mere abettor, the detention order as passed ought not to be lightly interfered with on such a technical plea. We are afraid it is not possible to entertain such a plea. In our view, we cannot overlook the fact that we are dealing with the liberty of a citizen and therefore it is the duty of the Court to see whether the detention order complies with the mandatory requirements, albeit technical in nature. We have already observed that on close scrutiny of the grounds as well as the other materials supplied to the detenu along with the detention order, on the basis of which the Detaining Authority has recorded its subjective satisfaction, there is not even an iota of material to indicate that the detenu was engaged in abetting smuggling of goods. The learned A.P.P made unsuccessful attempt in placing reliance on para 11 of the grounds to contend that case of abetment against the detenu can be made out. The relevant extract of the said para is reproduced thus:—

“that for withdrawing this amount you or your brother Mr. Prithvi Kuntal used to come and as per the bank procedure the person who is withdrawing the cash is required to sign behind the cheque.”

11. We are afraid, this assertion at best would indicate that Prithvi Kuntal, brother of the detenu, can be said to be have indulged in abetting of smuggling activities and not the detenu. No other material was pointed out to us to support the reasoning indicated in the detention order of preventing the detenu in future from abetting smuggling of goods.

12. The learned A.P.P placed reliance on unreported judgment of this Court in Shaikh Ahme Kasim Shivkar v. State of Maharashtra,. In para 4 of the said decision, this Court has observed that the detention order cannot be read in isolation but read along with the grounds of detention. The said proposition, in our view, has no bearing with regard to the issue with which we are concerned in the present case. The issue is whether the detention order would suffer on the vice of non-application of mind because of the variance in the detention order and the grounds of detention as aforesaid. We have no hesitation in observing that in case of variance in the reason for detention recorded in the detention order and the reason in the grounds on the basis of which the Detaining Authority arrived at the subjective satisfaction, it would be a clear case of non-application of mind.

13. The other unreported decision relied upon by the learned A.P.P is in Nazir Ahmed Abdul Hamid v. State of Maharashtra, Even the said decision is of no avail as in the said case this Court has examined the facts of that case. From para 24 onwards this Court has discussed the fourth contention raised in the said matter about the alleged disparity between the order and the grounds of detention. In the said case the order of detention made reference to the detenu's activity of smuggling of goods, as against that the grounds of detention mentioned that the detenu was engaged in the activity referable to clause (iii) of sub-section (1) of section 3 of COFEPOSA Act viz. engaging in transporting or concealing or keeping smuggled goods. In the said decision this Court adverted to the materials in the said case and in para 30 held that it was not possible to accept the contention that there was any disparity between the order of detention in referring smuggling of goods and grounds of detention which refers to engaging in transporting or concealing or keeping smuggled goods. The Court clearly recorded its finding that materials placed before the Detaining Authority clearly indicated that the detenu was smuggling goods and was also engaged in transporting smuggled goods. The Court thus held that it was erroneous to assume that the grounds of detention only referred to the detenu's role in engaging or transporting or concealing or keeping smuggled goods. In this backdrop, this Court in para 32 of that decision negatived the plea of variance between the order of detention and grounds of detention.

14. We have no hesitation in observing that in a given case if there is variance between the order of detention and the grounds of detention it would surely be a case of non-application of mind inasmuch as it reflects on the genuineness of the subjective satisfaction recorded by the Detaining Authority. The inevitable effect of variance in the order and grounds, in our view, would be that the order as passed on the basis of which the detenu is kept under detention, is not supported by the grounds or vice versa. In such a situation the detention of a person cannot be said to be legal and as per authority of law.

15. Besides the detention order being bad on the ground of non-application of mind, the inevitable effect of such a variance is that the detenu would be seriously prejudiced in making effective representation against his detention. It would be preposterous to contend that no prejudice would be caused to the detenu because the detenu can he presumed to have knowledge on the basis of materials supplied to him along with the detention order. Such a wide proposition, in our view, cannot be sustained in law. We are of the view that in such a situation the detenu is bound to be confused in making representation. Inasmuch as, the detenu would be misled and confused as to whether to assail the reason recorded in the detention order or the grounds. The detenu cannot be made to fend for himself to find out as to what material weighed with the Detaining Authority to arrive at the subjective satisfaction. On the other hand it is well settled that grounds in support of detention order should clearly spell out the position. Therefore, we have no hesitation in observing that in case of variance between the detention order and the grounds of detention the detenu would surely be prejudiced in making an effective representation against his detention and thereby denying him right guaranteed under Article 22(5) of the Constitution of India. The Apex Court in (1990) 2 SCC 113 : AIR 1990 SC 1185 has enunciated this proposition on which we would place reliance.

16. We are, therefore, of the view that because of the variance in the detention order and the grounds of detention, the impugned order of detention not only suffered from the vice of non-application of mind but also suffered on the ground that the detenu was prejudiced in making effective representation against his detention which infarcts his right guaranteed under Article 22(5) of the Constitution of India.

17. Taking any view of the matter the impugned detention order passed against said Shri Abhishek Sovern Kuntal, cannot be sustained in law. We, therefore, allow the writ petition and quash and set aside the impugned detention order. The detenu be set at liberty forthwith, unless required in some other offence. Rule made absolute.