Supreme Court of India
SHIV RATAN MAKLM S/O NANDLAL MAKLMversusUNION OF INDIA AND ORS.
- Citation
- 1985 INSC 250
- Decided
- 16 December 1985
- Disposal
- Dismissed
- Bench
- P N BHAGWATI
Holding
The detention order under s.3 of COFEPOSA is valid as it is preventive, the solitary incident and explained delay do not invalidate it, and it is not an abuse of power to bypass criminal prosecution.
Summary
Shiv Ratan Makhlam was intercepted at the India‑Nepal border in November 1984 and two pieces of foreign‑marked gold were seized from his trousers. He was arrested, released on bail, and later, in April 1985, the Government issued a detention order under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petitioner challenged the order on three grounds: that a single smuggling incident does not justify preventive detention, that the five‑month delay between the incident and the order indicated malafides, and that the order was intended to bypass criminal prosecution. The Supreme Court held that a solitary incident, when coupled with the nature of the offence and the petitioner’s own statements, can establish sufficient cause for detention; the delay was satisfactorily explained and did not create a presumption of malafides; and preventive detention serves a different, preventive purpose from punitive criminal prosecution, so the order was not an abuse of power. Consequently, the writ petition was dismissed and the detention order upheld.
Issues considered
- Whether a solitary incident of smuggling can constitute sufficient cause for detention under s.3 of COFEPOSA.
- Whether the lapse of time between the incident and the issuance of the detention order vitiates the order on grounds of malafides.
- Whether a preventive detention order can be used to circumvent or supplant criminal prosecution.
Legislation cited
Subjects
preventive detentionsmugglingforeign exchangeCOFEPOSAsolitary incidentdelay and nexusmalafidespreventive vs punitive law
Judgment
843
A
SHIV RATAN MAKlM S/O NANDLAL MAKlM
v.
UNION OF INDIA AND ORS.
DcCEMllER 16, 1985
B
[P,N, BHAGWATI, C.J. AND R.S. PATHAK, J.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, s.3 - Detention order - Solitary
incident - Whether sufficient for detention - Time gap between
incident and detention order - Whether vitiates order - Detention
order - Whether call be made to !:!ubvert, supplant or substitute
c
the punitive law.
The petitioner while returning from Nepal was intercepted
by the Customs Officers in the morning of' 20th November, 1984 and
searched in the presence of independent witnesses. From his
D
trousers' pocket two pieces of foreign marked gold in the shape
of round tablets weighing 373.800 gms. were recovered and seized
under the Customs Act. The petitioner was arrested and on
interrogation he filed a written statement admitting the search
and the seizure. On an application made by him he was released on
bail.
E
The second respondent thereafter passed an order dated 11th
April 1985 under s. 3 of COFEPOSA Act directing the detention of
the petitioner. The representation of the petitioner was rejected
by the Central Government. The advisory Board opined that there
was sufficient cause for the detention of the petitioner and the
Central Government confirmed the detention order directing
F
detention for one year.
The petitioner challenged the validity of the order of
detention before this Court contending: (i) that the order of
detention was based on a solitary incident and apart from this
incident there were no other incidents showing that he was
G
habitually smuggling gold, (ii) that considerable time had
I
elapsed between the date of recovery of gold pieces and the
detention order, and this long lapse of time showed that the
detention order was vitiated by malafides, and (iii) that the
detention order was made with a view to circumventing or
by-passing the criminal prosecution and that the power of
detention cannot be used to subvert, supplant or substitute the
H
punitive law.
844 SUPREME COURT RE.PORTS [1985] SUPP, 3 s.c.R.
A
Dismissing the petition,
llE1D : 1, Having regard to the nature of the activity and
the circumstances in which the petitioner was caught smuggling
gold, and the facts set out by him in his written statement, the
B second respondent was justified in reaching the ~atisfaction that
the petitioner was engaged in smuggling gold and that with a view
to preventing him, it was necessary to detain him, [847 E-F]
2. Where an unreasonably long period has elapsed between
the date of the incident and the date of the order of detention,
an inference may legitimately be drawn that there is no nexus
c between the incident and the order of detention and the order of
detention may be liable to be struck down as invalid. But there
can be no hard and fast rule as to what is the length of time
which ahould be regarded sufficient to snap the nexus between the
incident and the order of detnetion, (646 A-Bl
In the instant case, the lapse of time bet...,en the date of
o the incident and the date of order of detention has been
sufficiently explained by the detaining authority. No inference
of malafides can, therefore, be drawn. (846 B-<;]
3, The object of making an order of detention is preventive
while the object of a criminal prosecution is punitive. Even if a
E criminal prosecution fails and an order of detention is then
made, it would not invalidate the order of detention. If an
order of detention is made only in order to bypass a criminal
prosecution which may be irksome because of the inconvenience of
proving guilt in a Court of law,' it would certainly be an abuse
of the power of prevent!ve detention and the order of detention
F would be bad. But i f the object of making the order cf detention
is to prevent the colllllission in future of activities injurious to
the comwnity, it would be a perfectly legitimate exercise of
power to make the order of detention. The Court would have to
consider all the facts and circumstances of the case in order to
determine on which side of the line the order of detention
G falla. (846 F; 649 B-il]
In the instant case, the petitioner was caught in the act
of smuggling gold and the circumstances in which the gold was
being smuggled as also the facts set out in the written statement
I
of the petitioner clearly indicate that the petitioner was
H engaged in the activity of smuggling gold. It, therefore, cannot
be said that the order of detention was passed by the second
SHIV RATAN MAKlM v. u.o.I. [BBAGl<ATI, c.J.] 845
respondent with a view to subverting, supplanting or substituting
the criminal law of the land.. The order of detention was passed A
plainly and indubitably with a view to preventing the petitioner
from continuing the activity of smuggling and it was, therefore,
a perfectly valid order of detention. [849 D-F]
l!qbhharta Vo State of West Bengal, [1973] 3 SCC 250 relied
upon. B
ORIGINAL JURISDICTION Writ Petition (Criminal) No. 1122
of 1985.
(Under Article 32 of the Constitution of India)
c
Soli J, Sorabji, A.K. Nag and K.D. Prasad for the
Petitioner.
N.C. Tulkdar, and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by D
BllA(;llAT!, CJ. This is a writ petition filed by the
petitioner for a writ of habeas corpus praying for revocation of
the order of detention dated 11th April 1985 passed by respondent
No. 2, Joint Secretary to the Government of India, against the
petitioner under Section 3 of the Conservation of Foreign E
Exchange and Prevention of Sn.iggling Activities Act 1974 (herein-
after referred to as COFEPCSA Act). We heard the writ petition on
18th September 1985 and after hearing the arguments advanced on
both sides, we passed an order on the same date dismissing the
writ petition. We now proceed to give our reasons for making that
order.
F
On the basis of information received by them, the Customa
Officers at Panitanki Land Customs Station intercepted an
auto-rickshaw bearing No. WGY-9854 coming from Nepal at about 8
a.m. in the morning of 20th November 1984. There were four
occupants in the auto-rickshaw, namely, the petitioner, Raj Kumar
Gupta, Pre& Prasad Bothari, and Aksdeshi Bahadur. These four G
occupants as well as the driver of the auto-rickshaw were
searched by the Customs Officers in the presence of independent
I witnesses and as a result of the search, no contraband goods were
found in the possession of the other three occupants and the
driver of the auto-rickshaw but from the pocket of the trousers
worn by the petitioner, two pieces of foreign marked gold in the
shape of round tablets weighing 373.800 gms. and valued at H
846 SLPREl'J. COURT REPORTS [1985] SUPP. 3 s.c.R.
A Rs.74760 were recovered and they were seized under the Customs
Act. The petitioner was immediately arrested and on interroga-
tion, he filed a written statement on the sarre day stating that
he had been uneffiployed for a long time and that he was introduced
in the business of purchase and sale of foreign marked gold by
one Prakash Pincha and that on 16th ~ovember 1984, he left
R Kathiar by bus and arrived in Kathmandu at 6 a.m. on 18th
November 1984 and stayed at Kanji Lodge in Kathoondu and as per
prior arrangement, he contacted one Dena Lal Aggarwal on
Telephone ~o. 344889 and Lena Lal Aggarwal thereu~on came to
Kanji Lodge along with the requisite quantity of gold and he took
delivery of gold froru Dena Lal Aggarwal and paid him Rs. 70400 in
Indian currency and thereafter he left Kathmandu at 1800 hrs. on
c 19th November 1984 reaching Kakarbatha opposite Panitanki ~and
Customs Station at 7 .3G a.m. on 20th ~ovember 1984 and boarded
auto-rickshaw bearing No. wGY-9854 which later on picked up the
other passengers and ultimately the auto-rick.shaw 'Was intercepted
and he was searched resulting in the seizure of two pieces of
foreign marked gold which were in the pocket of his trousers. The
petitioner was produced before the Sub-Livisional Judicial
o Magistrate, Siliguri on 21st November 1984 and on an application
made by him, he was released on bail by the · Sub-Divisional
Judicial ~.agistrate on 5th December 1984. The second respondent
who is the Joint Secretary to the Government of India thereafter
passed an order dated 11th April 1985 under Section 3 of COFEPOSA
Act directing that the petitioner be detained and kept in custody
E in the central Jail, Patna. The order of detention recited that
it was passed with a view to preventing the petitioner from
smuggling f,Oods. Ihe grounds on which the order of detention was
based were supplied to the petitioner immediately on his arrest
under the order of detention. The petitioner made a representa-
tion dated 17th ~iay 1985 against the order of detention but the
F representation was rejected by the Central Government on 23rd May
1985. The case of the petitioner was placed before the Advisory
Board which gave the opinion that there was sufficient cause for
the detention of the petitioner and on receipt of this opinion of
the Advisory Board, the Central Government by an order dated 6th
June 1985 confirmed the order of detention and directed that the
G petitioner 9e detained for a period of one year from the date of
his detention, namely, 23rd April 1985. The petitioner thereupon
preferred the present "rit petition challenging the validity of
the order of detention and seeking a direction that he may be
released from detention.
H Though several grounds were taken in the writ petition only
three were seriously pressed by the learned counsel appearing on
behalf of the petitioner: The first ground was that the order of
SHIV RATAN MAKI1'1 v, U,"0,1, [BliAG\iATI, C,J .J. 847
A
detention was based on the solitary incident in which two pieces
of foreign marked go).d were recovered from the pock.et of the
trousers of the petitioner on 20th Novefuber 1984 and apart from
this incident there were no other incidents ·showing that he was
habitually smu;,gling gold. The second ground was that consider-
able time had elapsed between the date when he was found to be
B
carrying two pieces of foreign marked gold and the date of the
order of detention and this ,long lapse of time shOwed that the
order of detention was vitiated by malafides. And the last ·ground
was that the order of detention was made with a view to circum-
venting or byfassinb the criminal prosecution instituted against
the petitioner and the detaining authority had not applied its
mind to the vital aspect that the power of detention cannot be
c
used to subvert, supplant or substitute the punitive law. We do
not think any of these three grounds can be sustained.
So far the first 1:.round is concerned, it is obvious that
having regard to the nature of the activity of smuggling, an
D
inference could legitimately be drawn even from a single incident
of smuggling that the petitioner was indulging in siwggling of
gold moreover. The written statement given by the petitioner
clearly indicated that the petitioner was engaged i~ the business
of purchase and sale of foreign marked gold and that this
incident in which he was caught was not a solitary incident. The
E
facts stated by the petitioner in his written statement could
legitimately give rise to the inference that the petitioner was a
member of a smuggling syndicate an<l merely because only one
incident of smuggling by the petitioner came to light, it did not
mean that this was the first and only occasion on which the
petitioner tried to siwggle gold. There can be no doubt that
having regard to the nature of the activity and the circumstances
F
in which the petitioner was caught sn;uggling gold and the facts
set out by him in his written statement, the second respondent
was justified in reaching the satisfaction that the petitioner
was engaged in smuggling gold and that with a view to preventing
him from smuggling gold, it was necessary to detain him.
G
Turning to the second .ground of challenge, we do not think
that the lapse of time between the date when two pieces of
foreign marked gold were found on the person of the petitioner
and the date of the order of detention was so unduly long er that
the explanation for such lapse of time offered by the respondents
was so unsatisfactory that we should draw an inference of mala-
fides on the part of the detaining authority in making the order H
' of detention. The delay in making the order of detention has, in
our opinion, been satisfactorily explained by the time-chart set
SUPREME COURT REPORTS (1985) SUPP. 3 s.c.R.
A'
out as Annexure R-1 to the counter affidavit filed by Shri A.K,
Agnihotri on behalf of the respondents. It is no doubt true that
where an unreasonably long period has elapsed between the date of
the incident.and the date of the order of detention, an inference
may legitimately be· drawn that there is no nexus between the
incident and the order of detention and the order of detention
. may be liable to be struck down as invalid. But there can be no
hard and. fast rule as to what is the length of time which should
be regarded sufficient to snap the nexus between the incident and
the order of detention. We are of the view that here the lapse of
time between the. date of the· incident and the date of the order
of detention has . been sufficiently . explained by the detaining
authority and hence we are not prepared to draw the inference of
c . n:.alafides merely because the order of detention happened to be
. made about five months after the petitioner was ·found carrying
two pieces of foreign marked gold.
The last ground urged· on behalf of the petitioner is also
equally without substance. The contention of the petitioner was
that 1 criminal prosecution cannot be circ~ented or short-
D
circuted by ready resort to preventive detention and the power of
detention caiinot be used to subvert, Supplant or substitute the
punitive· law of the land. The petitioner urged that no material
has been disclosed by the·respondents to establish the existence
of any exceptional reasons which would justify recourse to
preventive· detention in the p[esent case such as.witnesses being
afraid to depose against the detenu in court or other genuine
difficulties.in.bringing the culprits to book in a criminal court
under thE. ordinary law of the land and in the absence of such
--- reasons before the detaining authority, it was not competent to
the detaining authority to make the order of detention by passing
F · the criminal prosecution. This argument completely overlooks the
'-.. , fact that the object of making an order of detention is preven-
· · , . tive while the object of a criminal prosecution is punitive. Even
" i f a criminal prosecution fails and an order. of detention is then
made, it would not invalidate ·· the, order of deter.tion,
becaus'e,' as· pointed out by 'this court in Subhbarta v. State of
G ·-llest .Bengal, [1973) 3 s.c.c. 250, "the purpose of preventive
detention being different frolll" conviction and punishment and
'subjective satisfaction beillg necessary in the former while proof
beyond reasonable doubt being necessary in the latter", the order
of detention Would . not be bad merely because the criminal
--.._ ·•prosecution, has failed •. lt.was pointed out by this Court in that
case that . "the · Act creates in the authority con~e~~ a new,
·H
.-
SliIV RAIAN MKlh v. u.o.r. [I>HAGWAII, c.J.) 849
jurisdiction to make orders for preventive detention on their A
subjective satisfaction on grounds of. suspicion of conimission in .
future of acts prejudicial to the · collllllllility in general. This
jurisdiction is different from that of judidal trial in courts
for offences and oCjudicial orders for prevention of offences.
Even unsuccessful'• judicial trial or. proceeding 1'0Uld therefore ll
not operate as a bar to a detention order or render. it malafide".
If the-failure of-the criminal prosecution can be no bar to the
making of -an order -of detention·, a fortiorari the mere fact that
a criminal prosecution can be instituted cannot operate as a bar
against the making of an order of detention. - If an - order of
detention is made only in order to by pass a criminal prosecution C
1'hich may be irksome because of the inconvenience of proving
guilt in a court of law, it 1'ould certainly_ be an. abuse of the
power of preventive detention and the order of detention 1'ould be
bad. But if the object of making the order of _detention is to
prevent the commission in future of activities injurious to the
community, it 1'ould be a perfectly legitimate exercise of power D
to make the -order of detention. ·The Court 1'ould have· to consider
all the facts and circumstances of.the case in order to determine
on which side .'of the line the order of detention falls. Here the
petitioner was caught in the act- of smuggling gold and the
circumstances in 1'1.lch the gold was_ being smuggled as also the
facts set out in the written statement of the petitioner clearly E
indicate that the petitioner 1'as •engaged in the activity of
, smuggling gold and if that be so, it is not possible to say that
the order of detention 1'as passed by the 'seco_nd respondent with a
view to subverting, supplanting or substituting the.criminal law
of the land. The order of detention was plainly and indubitably
with a view to · preventing the petitioner from continuing the F
activity of smuggling and it was therefore a perfectly valid
order of detention.
These "ere the reasons for which-,.e sustained the order of
·detention and dismissed the writ petition. G
A.P.J. Petition dismissed.
-,/·-
/
•
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