JUDGMENT Charanjit Talwar, J.
(1) The detenu, Ashok Gupta is seeking quashing of the detention order dated the 13th October, 1988 passed by Shri K. L. Verma, a specially empowered Officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the Act). This order was made with a view to preventing the detenu from smuggling goods. The grounds of detention also dated the 13th October, 1988, were served on him on 14th October, 1988 while he was in detention in Tihar Jail, New Delhi.
(2) At the outset it may be noticed that this is the second lime that the petitioner is being detained under the provisions of the Act. The earlier order of detention passed on 8th March, 1988 with a view to preventing him from smuggling goods and engaging in keeping smuggled goods, was quashed by this court on June 10, 1988 in Cr. Writ Petition No. 180 of 1988. The case of the respondents in a nut shell is that the impugned detention order is not based only on the material which was the basis of the earlier detention but that 'further material', which has been unearthed after the first detention, has been taken into consideration and relied upon for the prseat detention. Their main argument is that the "further material' constitutes fresh grounds of detention. It is, therefore, necessary to notice the facts of the case preceding the first order of detention.
(3) In pursuance of intelligence reports that some diplomatic consignments had been booked at Hongkong by Air France Airlines, surveillance was kept on all the consignments scheduled to arrive by that airline from Hongkong at cargo Terminal, Indira Gandhi International Airport, New Delhi. The particulars of five suspicious consignments, which had been booked by M/s Andrews & Co. 29-31, Leighton Road, Hongkong by Air France Flight No. AF-179, dated the 13th February', 1988, came to be known to the Custom authorities on 14th February, 1988. The particulars were the Airway Bill Nos, the date they were booked, the weight of the consignments and the names of the accredited diplomatic These consignments were kept under watch. It was found out after enquiries from the Air France Airlines that delivery orders in respect of those consignments had been collected on 15th February, 1988 by one Kumar Sambhav of M/s. Arena Electronics. One of the consignments containing 27 packages weighing 1168 Kgs covered under Airway Bill No. 057-1954-6995 in the name of Mr. Sameuddin, Embassy of Democratic Republic of Arghanistan, New Delhi created suspicion with regard to its real contents vis-a-vis the covering invoice and the exemption certificate issued by the Ministry of External Affairs, New Delhi. Release of that consignment was, therefore, delayed and Kumar Sambhav, who had filed the documents for the clearance of the said consignment was apprehended and interrogated.
(4) During the course of interrogation on 15th February, 1988 Kumar Sambhav in his statement under Section 108 of the Customs Act, 1962 stated, inter alia, that he was working with M/s Arena Electronics, D-12/A, Haus Khas, New Delhi since October, 1986 and that up to May, 1987 he had been doing all the clearing work of that firm; that the said firm dealt in diplomatic mail order business and had been importing all the consignments from Andrews & Co., Hongkong.
(5) Kumar Sambhav further disclosed that he was employed as a Sales Executive in that firm and that the detenu herein Ashok Gupta, S/o Late Shri A. N. Gupta was the owner of the firm, whose office was also situated at D 12/A, Haus Khas, New Delhi. He stated that he was getting a salary of Rs. 1500 per month and Rs. 300 per consignment as clearing charges as also 5 per cent commission of Cif value of the invoice of order. He stated that the detenu Ashok Gupta used to take orders from Embassy people himself and it was only after May, 1987 that he also started procuring orders from the Embassy people independently.
(6) Kumar Sambhav also disclosed the manner in which, after taking delivery of 70 to 80 consignments, the detenu bad disposed them of clandestinely in the market.
(7) In his statement made on 15th February, 1988 and also on 17th February, 1988, Kumar Sambhav stated that he had obtained an authority letter dated the 15th February, 1988 signed by Mr. Sameuddin of Afghanistan Embassy on the letter head of the Embassy of Democratic Republic of Afghanistan, New Delhi. Likewise, he had obtained delivery orders in respect of the other co-consignments belonging to the four Iraqi diplomats on that very day. He also disclosed the airway bill nos of the said consignments.
(8) Mr. Sameuddin, First Secretary of the Embassy of Democratic Republic of Afghanistan stated that the detenu herein was : introduced to him as the boss of M/s Arena Electronics and Kumar Sambhav as his employee. He admitted having instructed Kumar Sambhav to arrange the import of a consignment considering him to be the employee of the detenu representing Arena Electronics. He also admitted that he had obtained an exemption certificate from the Ministry of External Affairs. According to him, he had negotiated with Kumar Sambhav for the import of only those goods for which an exemption certificate had been granted. It appears that he showed his complete ignorance as to why and for what purpose the actual goods contained in the consignment covered by the Airway Bill No. 057--6995 had been imported.
(9) It may be noted that ordinarily diplomatic consignments having an exemption certificate from the Ministry of External Affairs are not opened in Cargo Terminal for examination and are passed by Customs, in routine. Because of the secret information that the five consignments in question did not contain the goods as per invoices surveillance had been kept on those consignments. The consignment, which was the subject matter of the import by the Afghan diplomat, was the basis of the first detention order passed on 8th March, 1988. It is apparent from the grounds that the only fact not known to the authorities by then about the other four consignments, was the exact nature of the goods contained therein: that those goods were not as per invoices, was known; that those goods had been smuggled was known. The modus operandi of the petitioner herein in disposing of the smuggled goods, which were imported clandestinely in the name of the diplomats, was also known. This is the admitted position in the counter-affidavit. Some of the averments contained therein are being highlighted herein below.
"In reply to paragraph 8, it is stated that it is correct that the arrival of the consignment pertaining to Iraqi Embassy was in the knowledge of the customs, but the smuggled nature of the goods was established only on 30-9-1988 when the goods were examined."
"INreply to para 9, it is stated that the earlier orders (detention order) were on the basis of the consignment smuggled into India in the name of Afghan Diplomat whereas the subject detention orders are 291 in respect of the goods smuggled in the name of Iraqi Diplomats. It is incorrect to say that the subject detention orders are based on the earlier material only. Though some of the documents/ statements relied upon in the earlier detention order have also been taken into account in the present case but further material has also been taken into consideration and relied upon. The original statement of Shri Kumar Sambhav having been corroborated by the circumstantial and other evidence, it was not necessary to record a fresh statement of Kumar Sambhav."
(10) As is clear from the above averments, Kumar Sambhav's statement had been recorded prior to the issuance of the earlier order. That statement is admittedly being taken into account by the detaining authority in arriving at its subjective satisfaction while passing the present detention order. After the quashing of the earlier order on June 10, 1988, the petitioner was released from detention and his further statement was recorded on 4th October, 1988. The detaining authority has found corroboration of Kumar Sambhav's statement from the facts disclosed in the petitioner's statement. In paragraph 10 of the counter affidavit a portion of that statement of the petitioner has been quoted. It reads: "I would send Kumar Sambhav to the Embassy to collect all the documents and after collecting he would go to the cargo terminal for clearance."
(11) From the above quoted portion of the statement the detaining authority, who has filed the counter-affidavit, has concluded that it: "Confirim that the said authority letters of Iraqi Diplomats were either supplied by Shri Ashok Gupta to Kumar Sambhav or these Were obtained .by him from the diplomats concerned on behalf of Ashok Gupta. Shri Ashok Gupta in his statement dated 16-2-1988 has himself admitted that for the purpose of procuring an order from a Diplomat or any Embassy, he visited the particular person or embassy to obtain order."
(12) The respondents do not deny that the smuggled goods, which are the subject matter of the present detention order, had been imported by the petitioner prior to his first detention order made on 8th March, 1988. But as noticed above, their stand is that the case of smuggling by him on behalf of Iraqi Diplomats was established only on 30th September 1988 when the consignments pertaining to Airway Bills No. 057- 2438-0042. 057-2438-0075, 057-2438-0064 and 057-2438- 0053 were examined and found to be not as per the invoices. We may note that it is evident from the record that some efforts were made by the Customs through the Ministry of External Affairs to contact the diplomats in question of the Iraqi Embassy to find out whether the consignments that had arrived in their names were ordered by them and if so, when were they lively to clear them. It appears, however, that the Embassy of Republic of Iraq while admitting that the Embassy had arranged with M/s Arena Electronics, 12A Haus Khas, New Delhi to import the articles for the four named diplomats but had cancelled the said orders as soon as it came to their knowledge that M/s Arena Electronics were dealing illegally in the import of goods. The case of the respondents is that as the Iraqi Embassy had refused to take delivery of the consignments, those were examined on 30th September, 1988 in the presence of Dr. K. Rawi, Counsellor of Embassy of Iraq, Mr. Khalid Mohd. Khalid, a diplomat of Embassy of Iraq, Mr. S. C. Maitra, Protocol Officer, Ministry of External Affairs and Mr. Pradeep Kumar of the Ministry of External Affairs.
(13) On the establishment of the case of smuggling on behalf of Iraqi diplomats, the impugned order of detention was passed. It appears that the respondents case is that the exact nature of the smuggled goods having been found only on 30th September, 1988, which fact corroborated the statement of Kuman Sambhav made prior to the first detention order on 15th/17th February, 1988) it was permissible in law to treat this material as fresh ground for making the impugned detention order.
(14) Can the fresh material which has come to the knowledge of the respondents to establish a criminal case(s) against the petitioner under the Customs Act, be considered ''grounds" to re detain him under the Cofeposa Act ? This is the main question which falls for consideration in this case.
(15) We may note that after his release from detention on June 10, 1988, there is no allegation by the respondents that the petitioner was thereafter involved in any fresh prejudicial or smuggling activity. He Was arrested on 21st September, 1988 in a case under Section 132 and 135(l)(a) of the Customs Act, 1962 and admitted to bail on 27th September, 1988 by the Addl. Chief Metropolitan Magistrate, New Delhi. He was again arrested on 4th October, 1988 in another Customs case but released on bail on 7th October, 1988 by the said Magistrate We are not concerned with those prosecutions. The petitioner was thereafter detained vide detention order dated the 13th October, 1988 under the Act, which order is impugned herein. A number of grounds have -been taken in the petition but as noticed above, the main attack is that the second detention order, which is based on the same grounds, as the one passed earlier, is not permissible.
(16) Mr. Rajinder Dutt, learned counsel for the respondents agrees that in view of the clear enunciation of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat & Ors, 1982 (2) Scc 24(1) that after the quashing of the detention order by the High Court, the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds. However, his plea is that the grounds are not the same. A number of authorities have been cited by counsel for the parties in support of their rival contentions.
(17) The Supreme Court in a number of reported decisions has held that if an order for the detention of a person had been subsequently revoked for the period for which the detention order was made, had expired, a fresh order of preventive detention is permissible provided fresh facts come into being after the date of revocation or expiry of that order.
(18) In Chotka Hembram v. State of West Bengal and others it was observed that : "If no fresh facts come into being after the date of revocation or expiry as may warrant the making of an order of detention, the requisite condition precedent to the making of the subsequent order would be non-existent and it would not be permissible to make a subsequent order of detention under Section 3 of the Act." The act under discussion was the Maintenance of Internal Security Act, 1971. (19) Thus the question really is what are grounds, la Khudiram Das v. State of West Bengal and ors, it has been held that: "The grounds mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which therefore, the order of detention is based."
Accroding to the respondent, apart from the basic facts and material which were communicated to the petitioner Along with the first detention order, there are fresh grounds to re detain the detenu. In Har Jas v. State of Punjab and Others, it was held that a fresh order of detention can only be made if fresh grounds come into existence after the expiry or revocation of the earlier order of detention. No fresh order could be made on the grounds which existed prior to the revocation or expiry of the earlier order of detention. 20. In Masood Alam v. Union of India & Ors, wherein a similar question had arisen under Maintenance of Internal Security Act, 1971, it has been held that : "The power of preventive detention being an extra-ordinary power intended to be exercised only in extraordinary emergent circumstances, the legislative scheme of Sections 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond the maximum period fixed. In the present case it is not urged and indeed it is not possible to urge that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State Government, any fresh facts could arise for sustaining the fresh order of detention. The submission on behalf of the State that the petitioner's activities are so highly communal and prone to encourage violent communal activities that it was considered absolutely necessary to detain him in the interest of security of the State and maintenance of public order cannot prevail in face of the statutory restrictions and the guaranteed Constitutional rights which are available to all persons."
(20) In Mohd. Shafi and another v. State of Jammu and Kashmir, it has been reiterated that a fresh order of detention could be made only if fresh grounds come into existence after the expiry of revocation of the earlier order of detention. No fresh order could be made on grounds which existed prior to the revocation or expiry of the earlier order of detention.
(21) After careful consideration of the documents and other material on the record, we are of the view that the fresh material collected cannot be described as fresh grounds which entitle the respondents to pass the present impugned order. The material which gave the respondents a clue as to the nature of goods alleged to have been smuggled on behalf of. the Iraqi diplomats. can certainly be used against the petitioner for prosecuting him but that material does not constitute fresh grounds for detention. The prejudicial activity of the petitioner was known prior to the passing of the first order of detention. According to Kumar Sambhav's statement, he had already cleared on behalf of the petitioner about 70-80 consignments of this nature. The consignments in respect of the Iraqi diplomats were suspicious and, therefore, a watch had been kept on them. The modus operandi of the detenu was also known. It was suspected that the goods in the said consignments were nut as per the invoices. The nature of the goods in our view is not a fresh basic material and, therefore, cannot be described as fresh grounds.
(22) In the view which we are taking, it is not necessary to deal with the other contentions urged by Mr. Mathur.
(23) The result is that the petition is allowed. The continued detention of the petitioner under the impugned detention order is set aside. The Rule is made absolute. We direct that the petitioner be set at liberty forthwith unless required to be detained under any other valid order passed by a Court or any other competent authority.