JUDGMENT V.S. Aggarwal, J.
1. Petitioner Bipin Kumar Jain assails the order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended (for short "the Act").
2. The relevant facts are that the petitioner is a holder of Indian passport. On 20.11.2000, he arrived at Indira Gandhi International Airport, New Delhi from Hongkong by Air India flight No. AI-321. He collected the baggages and walked through the green channel. On suspicion, at the exist gate of Arrival Hall, he was intercepted by the Customs officer and was inquired if he was carrying any gold or any other dutiable article. The answer given by the petitioner is stated to be in negative. Not satisfied with the reply, the officer called two independent witnesses and in their presence, search was to be conducted. The petitioner did not require the presence of a magistrate or a gazetted officer. He was taken to the Preventive room in the Arrival Hall. The search of the bag led to the recovery of five mobile phones of Motorola. Thereafter personal search of the petitioner was conducted. The petitioner was asked to take off the shoes and socks and 16 pieces of gold bars were recovered. The value of the goods was assessed. The petitioner made a voluntary statement admitting the recovery and seizure of gold and mobile phones. He was arrested on 21.11.2000 under Section 104 of the Customs Act, 1962 and was produced before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. Thereafter it is asserted that the Lieutenant Governor, National Capital Territory of Delhi, took into consideration the retraction made by the petitioner and other facts and on being satisfied, had passed the impugned order.
3. The petitioner assail the said order alleging that his detention has been effected for twin purposes, namely, smuggling off goods and engaging in transporting, concealing and keeping smuggled goods. According to the petitioner, the activities of transporting, concealing and keeping smuggled goods could only be attributed to Raju's man who was outside the airport because as per his statement the petitioner was to hand over the same to him. It has been asserted further that the detaining authority had not applied his mind and there has been inordinate delay in passing the detention order while further the detention order was passed while the petitioner was in judicial custody. On all these counts, it is claimed that the detention order necessarily is illegal and, therefore, is to be quashed.
4. In the reply filed, it has been pointed that petitioner visited abroad on 13 occasions in the year 2000. All these visits were for a short period and petitioner had been caught red handed. It is clearly mentioned in the grounds of detention that petitioner was involved in concealing the goods. Hence it can not be ruled out that the petitioner would not be involved in future in engaging in transporting, concealing and keeping smuggled goods. The allegations about delay in passing order of detention were controverter and it was further alleged that legible copies had been supplied. All other assertion of the petitioner too were controverter.
5. On behalf of the petitioner, it had been urged and argued that a single act of carrying the goods, which is alleged by the State, can not form a good ground for detention of the petitioner and, therefore, the order in question necessarily must be set aside. In support of his this argument, reliance by the learned counsel was placed in the decision of this Court in the case of SUWA RAM v. UNION OF INDIA, 1989 (2) DELHI LAWYER 420. The facts in the case were that the petitioner therein had gone to the red channel and declared goods worth 2650. His suite-case was examined and it was found that it contained two cast iron locks and an electric iron. On breaking the lock, it was found that gold in the form of one cylindrical solid state was present and one piece of gold in the shape of "V" was recovered. It was on these facts that this Court had examined the controversy. On detailed examination and on various grounds, the order in question was quashed but pertaining to the argument that was so-much thought of by the learned counsel, it was held:
14. It is true that on a solitary instance of smuggling, in appropriate cases, an order of detention can be passed if after taking all the material into consideration the detaining authority comes to the conclusion that a detnu is likely to indulge in such activity in future unless he is detained. ....."
6. As a word, this court can not accept the contention that the solitary instance of smuggling can not form part of detention order. It, in fact, is the satisfaction of the concerned authority and ordinarily unless patently there is no material on record, the High Court will not sit as a court of appeal over that satisfaction, to be recorded by the concerned authority. Here, in the present case in hand, the detaining authority had looked into the facts and also the fact that during the year 2000 the petitioner had made 13 short trips to Hongkong and one to U.A.E. It is the totality of facts, which weighed with the detaining authority and thereupon when such are the considerations, coupled with fact that the petitioner was hiding the articles which were smuggled by him, it can not be stated, therefore, that the single act could not form part of the order of detention.
7. It has to be remembered that orders passed under the ct are to prevent future smuggling or in other words, to prevent him from acting in any manner prejudicial to the conservation of foreign exchange or abetting the smuggling of goods or engaging in transporting or concealing such goods etc. Therefore, a single act in peculiar facts, indeed, with this being the object of law, can form part of a detention order. The particular plea, therefore, must be rejected.
8. Confronted with this position, the learned counsel very eloquently pointed that by no stretch of imagination the petition can be taken to be transporting the smuggled goods and to that extent, it must follow that there was no application of mind by the detaining authority. He relied on the Division Bench decision of this court in the case of DEVINDER SINGH DABAR @ GOLDIE @ GOLDY v. UNION OF INDIA, 1977 JOURNAL OF CRIMINAL CASES 410. It is apparent from perusal of the facts in the case of Devinder Singh that the same were distinguishable. Devinder Singh was assailing the detention order while in the cited case, there were four Russian ladies, who had been intercepted by customs authorities and their baggage revealed certain gold articles. It was these ladies, who were carriers/smugglers of gold and they had not even identified Devinder Singh. It was this background, which prevailed with this Court to hold that Devinder Singh was not smuggling the gold because in the material placed on record, the gold was being brought to India at the instance of one Olga Kaluasheva and it had been taken into custody at the airport itself. It had been the peculiar facts of the case, therefore, which prevailed and the argument that was being advanced will not, indeed, help the learned counsel.
9. We know from the judgment of the Supreme Court in the case of NARENDRA PURSHOTAM UMRAO v. B.B. GUJRAL AND ORS., 1979 CRL.L.J. 469 that the expression "smuggling" occurring under Section 2(e) of the Act, must be given a wider meaning with a view to broaden the scope of preventive detention. The intention of legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct and both were separate grounds for detention. Keeping in view this fact, this matter had been considered by this Court in the case of RAVINDER KUMAR v. ADMINISTRAtor OF DELHI AND ANR., 1990 CRL.L.J. 2212. In the cited case also, the petitioner had been intercepted and certain gold and watches were recovered. Therein too the petitioner had been traveling abroad for short durations and the statement made was that he wanted to sell foreign goods to earn money. It was held that detention order so passed was valid and, therefore, on that ground it could not be set aside.
10. The position in the present case is by and large identical. It transpired that during the year 2000, as already referred to above, the petitioner had made following short visits:-
S.No. Date of de- Date of arrival Airport Destination Parture (in India) of Arri-
(from India) val ____________________________________________________________________________
1. 20.01.2000 22.01.2000 Sahar Hongkong
2. 20.03.2000 22.03.2000 Sahar Hongkong
3. 20.05.2000 22.05.2000 Sahar Hongkong
4. 26.06.2000 28.06.2000 Sahar Hongkong
5. 30.06.2000 02.07.2000 Sahar Hongkong
6. 05.07.2000 08.07.2000 Sahar Hongkong
7. 27.07.2000 20.07.2000 Sahar Hongkong
8. 02.08.2000 05.08.2000 IGI UAE Airport
9. 03.10.2000 06.10.2000 Sahar Hongkong
10. 09.10.2000 10.10.2000 Sahar Hongkong
11. 18.10.2000 22.10.2000 Sahar Hongkong
12. 03.11.2000 05.11.2000 Sahar Hongkong
13. 19.11.2000 20.11.2000 IGI Hongkong Airport ____________________________________________________________________________ He had arrived at IGI International Airport and thereupon took up to green channel where he was intercepted. In his statement made he had disclosed that goods had been given to him by one Raju in Hongkong and the petitioner was to be re-imbursed in this regard. Merely because if he had not gone out of IGI Airport, will not imply that he was not likely to engage in transportation of smuggled. His detention order was not passed because he had infact transported smuggled goods but to prevent him smuggling goods and engaging himself in the transport of such goods. The totality of the facts clearly reveal that fact in the facts of the present case and, therefore, the plea must fail.
11. The last submission in this regard was that there has been no application of mind and there is no nexus with the purpose to be achieved viz-a-vis the order of detention and the grounds that have been given. The order of detention dated 1.12.2001 reads:
"Whereas the Lt.Governor of the National Capital Territory of Delhi is satisfied with respect to the person known as Shri Biping Kumar Jain S/o Shri Futarmal Jain R/o 22/24, Anantwadi, 4th floor, R.No. 94, Bhuleshwar, Mumbai-400 002 presently lodged in Central Jain, Tihar, New Delhi that with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods in future, it is necessary to make the following order:
Now, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Lt.Governor of the National Capital Territory of Delhi hereby directs that the said Shri Bipin Kumar Jain be detained and kept in custody in the Central Jail, Tihar, New Delhi."
12. The basis grounds of detention have already been given above but in this regard paragraph 14 of the same must also be referred:-
14. On the basis of the foregoing facts and circumstances the Lt.Governor of the National Capital Territory of Delhi has no hesitation in arriving at the conclusion that you have the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented you are likely to indulge in the smuggling activities in future. The Lt.Governor is aware that the prosecution proceedings under the Customs Act, 1962 have already been initiated against you and adjudication proceedings under the Customs Act, 1962 are likely to be initiated against you, and your passport is with the Customs Department but you are likely to travel clandestinely for the purpose of smuggling, hence the Lt.Governor of the National Capital Territory of Delhi is satisfied that it is necessary to detain you under the provision of the Conservation of the Foreign Exchange and Prevention of the Smuggling Activities Act, 1974 with a view to preventing you from smuggling goods and also preventing you from engaging in transporting, concealing and keeping smuggled goods in future.
13. It is a settled principle that grounds have to be read as a whole and not one paragraph as in isolation of the other. The order of detention has been passed to prevent the petitioner from smuggling of goods and also from engaging in transporting, concealing and keeping smuggled goods in future. This is apparent from the statement pertaining to the grounds of detention which has been reproduced above. It was noted that petitioner was likely to travel clandestinely for the purpose of smuggling and the order was necessary to prevent him from smuggling goods and transporting the same. When both are read together, it is clearly made out that the facts had been brought correctly before the detaining authority. The detaining authority had applied the mind and consequently the purpose of Section 3 of the Act was clearly envisaged and satisfied so as to prevent the petitioner from acting as such in future. The other grounds have not been urged.
14. For these reasons, given above, the petition being without merit, must fail and is hereby dismissed.