Case Note & Summary
The Bombay High Court dismissed a habeas corpus petition challenging the preventive detention of Rakesh Ramdas Jejurkar under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu, through his brother, sought quashing of the detention order dated 03/10/2023 passed by the Joint Secretary to the Government of India. The grounds of detention alleged that the detenu was a key member of a smuggling syndicate involved in smuggling areca nuts from Dubai by mis-declaring them as other goods. The detaining authority recorded satisfaction that it was necessary to detain the detenu to prevent him from smuggling goods, abetting smuggling, and engaging in transporting or concealing smuggled goods. The petitioner argued that the use of the disjunctive 'or' in the order showed non-application of mind, as the authority was uncertain which specific activity was sought to be prevented. The court, however, held that the use of 'or' does not invalidate the order, as the detaining authority had clearly applied its mind to the material and the satisfaction was based on the overall conduct of the detenu. The court relied on the Madras High Court decision in Mrignaini Kanwar v. State of Tamil Nadu and distinguished the Supreme Court decisions in Kishori Mohan Bera and Akshoy Konai, which dealt with different statutes. The petition was dismissed, and the detention order was upheld.
Headnote
A) Preventive Detention - COFEPOSA Act - Subjective Satisfaction - Use of Disjunctive 'or' - The detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, used the disjunctive 'or' while describing the activities to be prevented (smuggling, abetting smuggling, transporting or concealing smuggled goods). The court held that mere use of 'or' does not indicate non-application of mind, as the detaining authority is not required to specify which particular activity is sought to be prevented; the satisfaction is based on the cumulative effect of the detenu's activities. (Paras 6-8)
B) Preventive Detention - COFEPOSA Act - Validity of Detention Order - The court, relying on the Madras High Court decision in Mrignaini Kanwar v. State of Tamil Nadu, rejected the argument that the use of 'or' renders the order bad, as the detaining authority had clearly applied its mind to the material and recorded satisfaction that the detenu was a habitual offender involved in smuggling. (Paras 7-8)
Issue of Consideration
Whether the use of the disjunctive 'or' in the detention order, reproducing the language of Section 3(1)(iii) of COFEPOSA Act, indicates non-application of mind by the detaining authority, rendering the order invalid.
Final Decision
The petition is dismissed. The detention order is upheld.
Law Points
- Preventive detention
- COFEPOSA Act
- subjective satisfaction
- non-application of mind
- use of disjunctive 'or'
- smuggling of goods
- abetting smuggling
- transporting or concealing smuggled goods
Case Details
2024 LawText (BOM) (7) 27
CRIMINAL WRIT PETITION NO.3706 OF 2023
Ms.Ansari for Petitioner, Mr.Sandesh Patil for Respondent Nos.1,2 and 4
The Union of India & Ors.
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Nature of Litigation
Habeas corpus petition challenging preventive detention order under COFEPOSA Act
Remedy Sought
Quashing and setting aside the detention order and release of the detenu
Filing Reason
Detenu's brother filed petition alleging that the detention order was passed without proper application of mind due to use of disjunctive 'or' in describing the activities to be prevented
Previous Decisions
Rule was issued on 10/11/2023 and petition taken for final hearing by consent
Issues
Whether the use of the disjunctive 'or' in the detention order indicates non-application of mind by the detaining authority, rendering the order invalid?
Submissions/Arguments
Petitioner argued that the detaining authority used the disjunctive 'or' instead of conjunctive 'and', showing uncertainty and non-application of mind, relying on Kishori Mohan Bera and Akshoy Konai.
Respondent argued that the use of 'or' does not invalidate the order, relying on Mrignaini Kanwar and G.K.Kantharaja Setty, and that the detaining authority had applied its mind to the material.
Ratio Decidendi
The use of the disjunctive 'or' in a preventive detention order, reproducing the language of Section 3(1)(iii) of COFEPOSA Act, does not per se indicate non-application of mind. The detaining authority's satisfaction is based on the cumulative effect of the detenu's activities, and the order is valid if the authority has applied its mind to the material.
Judgment Excerpts
The Detaining Authority, being the Joint Secretary to the Government of India, in exercise of powers conferred under Section 3(1) of COFEPOSA Act, directed detention of the detenu, since he was satisfied that it was necessary to detain him, with a view to prevent him from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future.
The Petitioner says and submits that the detaining authority has used the disjunctive word 'or' instead of conjunctive word 'and' as the detaining authority was not sure for which category he wants issue impugned detention order against the detenu.
By referring to the various authoritative pronouncements, an inference was drawn that the use of disjunctive 'or' will not lead to an inference that the detaining authority, without applying mind, has passed the impugned order with an element of casualness, by mechanically reproducing the language used in Section 3(1) of the Act.
Procedural History
Detention order passed on 03/10/2023 by Joint Secretary to Government of India under COFEPOSA Act. Habeas corpus petition filed by detenu's brother. Rule issued on 10/11/2023. Petition taken for final hearing by consent of parties.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: Section 3(1), Section 3(1)(i), Section 3(1)(ii), Section 3(1)(iii), Section 2(e)
- Customs Act, 1962: Section 2(39)
