Dilbagh Singh @ Billa vs Union Of India And Ors.
1989 Latest Caselaw 510 Del

JUDGMENT

P.K. Bahri, J.

(1) By this judgment I would dispose of these two criminal writ petitions brought by the co-detenus.

(2) An order of detention dated March 27, 1989, has been passed by a Joint Secretary to the Government of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') defaming Dilbagh Singh with a view to preventing him from engaging in transporting and concealing smuggled goods. A declaration dated April 10, 1989, under Section 3(1) of the Cofeposa Act has been also issued against him. Similar detention, order dated March 27, 1989, has been passed against Sukhwinder Singh under the same provision and for the same object and declaration dated April 10, 1989, also has been issued against him under Section 3(1) of the Cofeposa Act.

(3) The facts as evident from the grounds of detention served on the two detenus, in brief, are that on the basis of some prior secret information the officers of Directorate of Revenue Intelligence, New Delhi, intercepted a truck No. PAT-410 on March 5, 1989, at Kundli which is on Delhi-Haryana Border and these two co-detenus and another co-detenus Satnam Singh (whose criminal writ petition is being decided separately) were found present in the said truck and were apprehended. The search of the truck made in presence of the said detenus and independent witnesses resulted in recovery of 199 foreign marked gold biscuits of 10 tolas each from a cavity in tile right-hand side door of the cabin of the said truck. On the basis of the statement of Satnam Singh, his residential premises were searched on March 6, 1989, which resulted in recovery of 100 foreign marked gold biscuits. Sukhwinder Singh was engaged as a Cleaner in the beginning of year 1987 and by the end of 1989 he became driver of the aforesaid truck and he. was stated to have been engaged by one Jatinder Singh in whose name the truck stood registered although the truck was jointly owned by Jatinder Singh and Satnam Singh and he was being paid Rs. 500 per month as salary.

(4) Similarly, Dilbagh Singh was engaged as a Cleaner in the aforesaid truck by Satnam Singh at a salary of Rs. 200 per month in addition to Rs. 15 per day for food. On March 4, 1989, they had loaded bags of rice from M/s. Sachdeva Rice Mill. Amritsar, at about 4 P.M. and as instructed by Satnam Singh, a day earlier, they brought this truck to Ghee Mandi and at about 8 P.M. Satnam Singh came with a bag in his hand which contained the aforesaid gold biscuits which were then concealed in the secret cavity made in the door of the truck with their help and the truck was brought to Delhi and was apprehended by the officers of the Directorate of Intelligence. On the basis of the aforesaid facts the detaining authority in both the cases reached the subjective satisfaction that these two detenus have been engaging in transporting and concealing smuggled goods and they should be detained under Cofeposa Act with a view to preventing them from smuggling in transporting and concealing smuggled goods.

(5) Various grounds have been urged by the learned counsel for the petitioner in support of the writ petitions but it is not Dilbagh Singh @ Billa Vs. Union of India & others necessary to refer to all those grounds because these writ petitions are liable to be allowed on a very short ground.

(6) The facts, as enumerated above, reveal that these two petitioners were working as driver and cleaner in the aforesaid truck and they have been involved only in this single solitary prejudicial activity. The learned counsel for the petitioner has vehemently argued that there is no subjective satisfaction recorded in the grounds of detention that these two detenus have any propensity or potentiality to indulge in similar type of prejudicial activity in future. He has urged that in absence of any material in the grounds of detention indicating such propensity of the detenus to indulge in similar type of prejudicial activity in future the subjective satisfaction reached by the detaining authority in passing the detention orders is vitiated due to non-application of mind.

(7) Counsel for the petitioner has placed reliance on Debu Mahto v. State of West Bengal, , v. Union of India, 1989(2) Delhi Lawyer 420(2) and Fazal Ghosi v. State of U.P. and others, 1987 Crl. L.J. 1910(3) :

(8) The learned counsel for the respondents.. on the other hand, has contended that in the present case the very nature of the prejudicial activity indulged in by the said two co-detenu by itself i sufficient to reach the subjective satisfaction that if the detention order had not been passed they would have indulged in same like prejudicial activity in future and it was not necessary in law for the detaining authority to have recorded his subjective satisfaction in so many words in the grounds of detention in this connection. Counsel for the respondents has placed reliance on Mrs. Saraswathi Seshagiri v. State of Kerala and another, .

(9) In the case of Debu Mahto (supra), the Supreme Court had opined as follows : "WEmust, of course, make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so. it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behavior of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention."

In the said case the detenu was found Along with his associates. In removing three bales of empty jute bags after breaking a railway wagon. The Supreme Court found that the said solitary act was not sufficient to lead to subjective satisfaction that the detenu was likely to repeat the said prejudicial activity.

(10) In the case of Saraswati Seshagiri (supra) the ratio laid down in the case of Debu Mahto (supra) was reiterated and it was observed that it is evident that inference in each case will depend on the nature of the act and the attendant circumstances. In this case the detenu had made efforts to export Indian currency to the tune of Rs. 2,88,900 to a foreign country in a planned and premeditated manner by clever concealment of it in several parts of his baggage. So, from the aforesaid nature of the incident, it was held that subjective satisfaction could be reached by the detaining authority that if the petitioner was not detained he is likely to indulge in similar prejudicial activity in future. So, it depends on facts of each case in order to decide whether subjective satisfaction could be reached by the detaining authority or cot on the basis of a single solitary prejudicial activity of a particular petitioner.

(11) In the case of Sua Ram (supra) the facts, in brief, were that the petitioner had arrived from Dubai at the Indira Gandhi International Airport and his baggage was found to contain gold concealed is an electric iron. It appeared that the special cavities had been made in the locks and the electric iron for concealing the gold. In the grounds of detention it was recorded that the petitioner had been smuggling goods into India. It was found that there was no such material available on the record to suggest that the petitioner had indulged in any such activity previously. After referring to the ratio laid down in the case of Debu Mahto (supra) and also to a Division Bench judgment of this court in the case of Hira Lal v. M.V.N. Rao, 1985 Cr. Sukhvinder Singh @ Billa Vs. Union of India other L.J. 854(5), the Single Bench held that there was an isolated act of smuggling committed by the petitioner and it has not been stated in the grounds of detention specifically that if the petitioner was not defamed he was likely to smuggle gold in future and there was nothing to indicate that the petitioner, though having committed an isolated act, is a party to an activity of smuggling which is being conducted in an organized or systematic manner. It was found that the petitioner was nothing more than a carrier of gold for his friend and there was no material on which the detaining authority could have formed the opinion that the petitioner was likely to indulge in similar type of prejudicial activity in future and thus, the order of detention was quashed.

(12) The facts of the present case as far as these two detenus are concerned are on a better footing than were the facts in the case of Sua Ram (supra). Here, the detenus were only driver and cleaner of the truck and they appeared to have obeyed the directions of their master in helping him in concealing the said gold in the cavity of door of the truck and transporting the said smuggled gold in the said truck from Amritsar to Delhi. There is no material indicating in the grounds of detention or in the documents relied upon that these two detenus were to obtain any extra financial benefit for themselves in indulging in the said prejudicial activity. There is no material that they have been members of any organized and systematic syndicate in indulging in such like activity. In the case of Saraswathi Seshagiri (supra) the petitioner himself was the person who indulged in the prejudicial activity of trying to export huge amount of Indian currency to a foreign country and thus, the very grave nature of the offence being committed by the said petitioner, it was held that the subjective satisfaction could be reached that if not detained, such a petitioner would have the propensity to indulge in similar like prejudicial activity in future. Such is not the case as far as these two detenus are concerned. So, I hold that the detaining authority could not have reached the subjective satisfaction in absence of any material that these detenus are likely to repeat the prejudicial activity if they are not detained. Hence, the impugned orders are liable to be quashed on the ground alone.

(13) I allow the writ petitions, make the rule absolute and quash the impugned orders and direct that the petitioners be released forthwith if not required to be detained in any other case.