Sikota Wina vs Union Of India And Another
1984 Latest Caselaw 413 Del

JUDGMENT

B.N. Kirpal, J.

1. The challenge in this writ petition so to the order of detention dated 29th June, 1984 issued by the Government of Maharashtra under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA ACT'), whereby the petitioner has been detained fined with a view "to prevent him from smuggling goods".

2. As per the grounds of detention which were served on the petitioner, the detention order has been passed on the basis of an incident which had occurred on 13th June, 1984. The petitioner, along with his wife and an employee of his Mr. A. J. Ndemanga, had been cleared through the Customs and were aboard the Zambian Airways Flight No. QZ-781 for Lusaka. The petitioner and his wife held tickets which entitled them to travel by first class whereas Ndemanga held ticket for Economy Class. It is further stated in the grounds that the Customs Authorities intercepted, at the checking counter in the Departure Customs Hall, a person who gave his name as K. S. Kongwa. He was also a Zambian citizen. Two suitcases had been checked and it was apprehended that the said suitcases contained some contraband goods. On being questioned, Mr. Kongwa stated that the said suitcases had been checked in by him on the tickets of Mr. Ndemanga, who was stated to have been working as a Driver of the petitioner and his wife. Mr. Kongwa further told the authorities that as per his knowledge the suitcases contained Narcotics. Thereafter the petitioner, his wife and Mr. Ndemanga were brought from Security Hall and they were also questioned about the said suitcases. All three of them stated that they had no knowledge of the said suitcases, nor did they know as to what was contained in them. Mr. Ndemanga, in his statement, informed the Customs Authorities that he had given his ticket to Mr. Kongwa for getting clarification about the class in which he was to travel and he neither knew to whom the said two suitcases belonged nor did he know about the contents thereof. Neither the petitioner nor his wife nor Mr. Kongwa, on being asked, was able to produce the keys for opening the said suitcases. The two suitcases bore the label showing the name as being belonging to G. Tanishi, Box 31259 Lusaka. In the grounds it is stated that the Customs Officers checked the passenger Manifest of the said flight, but the abovementioned name did not appear in it. Mr. Kongwa, of course, in his statement, implicated the petitioner and his wife. The said suitcases, when they were opened, were found to contain Mandrex tablets. The petitioner and his wife identified the suitcases which had admittedly been checked in by them. The inspection of the said suitcases did not reveal any incriminatory goods. Similar was the case with regard to the hand baggage which they were carrying. As already noted, on 29th June, 1984 the order of detention was passed. In the grounds of detention, after the aforesaid facts had been stated, it was mentioned that "You along with your wife Princess Sikota Wina masterminded the conspiracy or smuggling of Mandrex tablets out of India. You along with your driver Alfred Ndemanga attempted to smuggle mandrex tablets out of India with the active help of K. S. Kongwa. Government, therefore, considers it necessary to detain you under COFEPOSA Act, 1974 with a view to prevent you from indulging in such type of prejudicial activities in future". A representation against the said detention order had been filed, but the same has been rejected.

3. In the present petition under Art. 226 of the Constitution of India, the aforesaid detention order has been challenged. It is not necessary to refer to or deals with all the contentions which have been raised by Mr. Sibal, because, in our opinion, the order has to be quashed on the ground that it does not show any application of mind.

4. It was submitted by Mr. Sibal that the purpose of the detention law is not to punish a person but is to prevent him from indulging in any nefarious acts in future. In the present case the learned counsel submitted that there was no justification for detaining the petitioner because he was leaving India and the question of his indulging in any smuggling activities in future did not arise.

5. For the purpose of this case, we will proceed on the assumption that the petitioner may have been involved in the attempt to smuggle Narcotics out of India. The question which, however, arises is whether this solitary instance, which is mentioned in the grounds of detention, is sufficient for the authorities to come to the conclusion that an order under S. 3(1) of the COFEPOSA Act should be passed in respect of a foreigner who was leaving the country.

6. It is no doubt true that, depending upon the facts and the circumstances of each case, even a solitary instance may justify the passing of such an order. It is now settled law that an order of detention is not meant to be punitive. The detention law, like the present, is preventive in nature. It is incumbent upon the authorities passing the order to apply their mind and to decide whether it is necessary to detain a person in order to prevent him from indulging in smuggling activities in future. In other words, if the smuggling activities of that person cannot be checked or prevented except by detaining him, only then an order under S. 3(1) can be passed.

7. What are the facts in the present case ? The petitioner and his wife along with the driver were leaving the country. They are not permanently residing here. In fact they were holding Zambian passports. If they had not been detained, they would have left the country. For the alleged act of trying to illegally smuggle Narcotics out of India punitive action under the normal laws of the land can be taken against them. The grounds of detention, however, do not show that the detaining authority applied its mind to the vital aspect, namely, as to whether in order to prevent the petitioner from smuggling in future it was necessary to detain him or not. As is evident from the facts enumerated above, the petitioner was himself leaving the country and if the authorities were convinced that he was indulging in smuggling, then there was no difficulty in preventing the petitioner from coming to India once again. We may note at this stage that in the grounds of detention it is not indicated that the petitioner had been visiting India in the past. It is not as if there was any systematic or organized smuggling activity in which the petitioner is alleged to have taken part. As per the grounds of detention it is a single isolated instance which had taken place on 13th June, 1984 which has led the detaining authorities to pass the impugned order. In our opinion, it was neither necessary nor proper for an order of detention being passed in a case like the present where the alleged smuggler was leaving the country. His future activities in this country could certainly be controlled by preventing him from coming to India. In order to prevent him from indulging in smuggling activities in future, it was not necessary to issue an order of detention.

8. For the aforesaid reasons, the order dated 29th June, 1984 issued by the Government of Maharashtra under S. 3(1) of the COFEPOSA Act, ordering the detention of the petitioner, is quashed. He is directed to be set at liberty forthwith unless required to be detained under any other valid order of detention or warrant or order of a Court.

9. Petition allowed.