By TIOL News Service

MUMBAI, JULY 15, 2015: THE detenu has been lodged at Nasik Road Central Prison in pursuance of a detention orderpassed under the COFEPOSA Act, 1974.

This order is challenged by the detenu's son in a Writ Petition before the Bombay High Court.

Facts: The detenu was scheduled to depart for Singapore by Jet Airways Flight and hence arrived at the Mumbai International AirPort. Because of his alleged suspicious movements, the officer of the third respondent informed others and a discreet watch was kept over him. When the detenu checked in his baggage at the counter, the officers in plain clothes intercepted him. The detenu was carrying assorted foreign currency equivalent to Indian Rs.38,10,565/- which was seized from his possession/baggage under panchanama. By an arrest memo dated 22.11.2014 the detenu was arrested. It was alleged that he attempted to smuggle the foreign currency out of India. He was produced before the Competent Magistrate's Court and enlarged on bail. While being enlarged, a bail bond was directed to be furnished. The bail bond incorporated an undertaking by the detenu not to leave the country without prior written permission of the officer concerned or the Court as the case may be.

The detention order was served on the detenu on 20.4.2015.

It is submittedby the petitioner that the proposal forwarded by the Sponsoring Authority has been blindly accepted by the detaining Authority and, therefore, the detention order is vitiated by non-application of mind. The argument is that the detention order states that the detenu has to be prohibited in future from smuggling goods and, therefore, it is necessary to make the detention order; in the grounds of the detention order, a subjective satisfaction is recorded by referring to the prior cases and the detenu booked therein and the detenu is termed as a repeated offender. Inasmuch as it is the submission that there is variance between the subjective satisfaction based on which the detention order is made and the grounds thereof.

The Additional Public Prosecutor submitted that there is no substance in the grounds of challenge in the sense that the detention order and the grounds have to be read as a whole; that the subjective satisfaction is based on the gravity of the offence and the well organized manner in which the detenu engaged in prejudicial activities; that with a view to prevent him from indulging in smuggling activities in future that he is required to be detained; that the attempt to read one paragraph in isolation and torn out of context should not result in detention order being set aside. The detention order being in accordance with law deserves to be upheld and the petition must be dismissed, is his submission.

The High Court after considering the submission and perusing the petition and all annexures inter alia observed thus -

+ We agree that this is not a case of any variance between the order of detention and the subjective satisfaction recorded therein, so also the grounds or reasons in support thereof. The subjective satisfaction is clearly based on the ingredients of clause (i) of Subsection (1) of Section 3 of the COFEPOSA Act, 1974.

+ In the present case the argument is that there is a bond executed and furnished and which records an undertaking of the detenu that he would not leave India without prior permission of the competent official or the Court. Pertinently, the learned Counsel does not dispute that the passport in the case before us was returned to the detenu. The detenu, thus, was free to utilize the passport.

+ It may be that the passport authority has independent powers and after it was informed of the prejudicial activities of the detenu, it would have prevented departure from India, but that by itself does not mean that the detaining authority in any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thus, there was an application of mind to germane and relevant factors necessary to invoke Section 3(1)(i) of the COFEPOSA.

+ In the present case, reading of the undertaking shows that it is a condition on which the bail has been granted. The condition inter alia is that the detenu shall attend the office of the officer or the Court on every day on which the investigation or trial is held and an undertaking is given by the detenu that he will not leave India without prior written permission of the concerned officer or the Court as may be. This is not enough to nullify the subjective satisfaction and which is recorded in the present case.

+ Suffice it to note that the subjective satisfaction is recorded with reference to the past activities of smuggling carried out by the detenu and in order to prevent him from indulging in similar activities in future that the detention order has been made.

+ Once we have found that the subjective satisfaction and as recorded clearly spells out the distinction in law, then, we are in agreement that one word or sentence from the detention order cannot be picked up and read in isolation or torn out of context.

+ The subjective satisfaction is based on the detaining authority's opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future. On account of the statements made in the affidavits in reply as well, we are satisfied that the detenu's rights guaranteed by Article 22 of the Constitution of India are in no way infringed nor is the mandate of the said Article in any way violated.

Holding that the detention order did not suffer from any legal infirmity, the Writ Petition was dismissed.

(See 2015-TIOL-1595-HC-MUM-COFEPOSA)