IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2017 PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL & THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA W.P.H.C.No.97/2016 BETWEEN:
IBRAHIM SHAREFF, S/O ABDUL RAWOOF, AGED ABOUT 66 YEARS, R/AT NO.8, I MAIN, I CROSS, NEAR WISDOM SCHOOL, B.T.M.I STAGE, BANGALORE-560 029. ... PETITIONER (By Sri KIRAN S.JAVALI, ADV. FOR Sri CHANDRASHEKARA K., ADV.) AND 1. ADDITIONAL CHIEF SECRETARY AND PRINCIPAL SECRETARY TO GOVERNMENT OF KARNATAKA, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560 001, BY SHRI SUBHASH CHANDRA.
2. GOVERNMENT OF KARNATAKA, BY PRINCIPAL SECRETARY, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560 001.
3. SENIOR SUPERINTENDENT, CENTRAL PRISON, BANGALORE. ... RESPONDENTS (By Sri I.THARANATH POOJARY, AGA) THIS WPHC IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING THE DETENTION OF SHRI MOHAMED SHUAB BAHADUR, S/O IBRAHIM SHARIFF @ ABDUL RAWOOF SAHIB BAHADUR, BY ORDER HD 3 SCF 2016 DATED 07/06/2016(ANNEXURE-"A") AS ILLEGAL AND VOID ABINITIO.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.02.2017, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, B.S.PATIL, J., MADE THE FOLLOWING:
ORDER 1. In this writ petition, petitioner is challenging the detention of his son – Mohamed Shuab Bahadur as per the detention order dated 07.06.2016 passed by the Additional Chief Secretary to Government, Home Department, Government of Karnataka, Bengaluru. The order of detention is passed in exercise of power under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (COFEPOSA ACT), to prevent the detenue from indulging in acts of smuggling of foreign currency and gold.
2. It is borne out from the materials on record including the grounds of detention produced at Annexure-B to the writ petition that specific intelligence was gathered to the effect that a passenger by name Mr. Nidheesh Tharol was to arrive at Kempegowda International Airport, Bengaluru, from Dubai (UAE) by Air India flight – AI 994 at about 6.30 hours on 02.10.2015. The said passenger was likely to hand over gold of foreign origin to Mr. Mivin and Mr. Mufeed Majeed, ground handling staff of Air India Sats near the aerobridge area. As per the intelligence, the said Mivin and Mufeed Majeed were to hand over the said gold either to one Mohamed Shuab Bahadur/the detenue and son of petitioner or to his associate waiting in the parking area outside the airport.
3. Based on the said intelligence information, the officers of DRI intercepted Mr. Nidheesh Tharol at the aerobridge area. On enquiry, he informed that he had certain baggage. On further questioning, he admitted that he was carrying crude gold jewellery (24 Carat) in the form of two gold chains, one ring and one bangle and was supposed to hand over the said crude gold jewellery to either Mr. Mivin or Mr. Mufeed Majeed, who would approach him at the aerobridge area. On further enquiry with the ground staff available at the aerobridge area, the two persons, Mivin and Mufeed Majeed were identified and were found in the aerobridge area. On repeated enquiry, they also revealed that they were supposed to take delivery of the above said crude gold jewellery brought by Nidheesh Tharol at the aerobridge area. The gold items were recovered from Nidheesh Tharol totally weighing 258.59 grams and valued at Rs.6,80,609/-. They were seized by conducting mahazar dated 02.10.2015. Four cell phones belonging to Nidheesh Tharol, Mivin and Mufeed Majeed were also seized for the purpose of investigation. Statements of about eleven persons were recorded.
4. Mr. Nidheesh Tharol stated that he was in the business of readymade garments at Kozhikode; as he was in need of quick money, he was offered a good opportunity by his childhood friend Mujeeb @ Raja @ King; his work was to carry gold from Dubai to India, for which expenses would be borne by Mujeeb. He also stated that he had to carry gold and hand over the same at the aerobridge to some airport staff at the Bangalore Airport who would in turn smuggle it out. He also admitted that he was later on informed of the names of two Air India Sats ground staff personnel – Mivin and Mufeed Muzeed who would be on duty for the night shift and he would have to hand over the gold to either of them at the aerobridge.
5. Statement of Mivin was also recorded, who narrated the modus operandi adopted to hand over the gold. He also stated that even earlier, such smuggling operations had taken place, wherein he used to hand over the gold to Mohamed Shuab Bahadur – the detenue. Mivin is also said to have stated that he was indulging in such work for about 6 days in a month and had done so totally about 60 times and in that process, he had abetted in smuggling more than 60 Kgs. totally valued at Rs.16 Crores. It is also stated that Mivin in his statement dated 02.10.2015 informed that the present detenue called him on 01.10.2015 in the afternoon and informed him that the detenue would be sending one Kg. bars with one passenger by Air India flight – AI 994 and that the detenue would confirm the same before departure of the flight from Dubai on Thursday midnight; he (Mivin) received a message from the detenue that the flight got delayed and the gold was not being sent through the passenger. The detenue further informed that one Mr. Nidheesh would be arriving in the same flight with gold jewellery for which he needed assistance. Mivin agreed for the same and informed the detenue that he would receive gold from the said passenger at the aerobridge and then deliver it outside the airport. However, after arrival of the flight – AI 994 and passengers started to disembark, the officers of DRI intercepted the said passenger and recovered the gold jewellery.
6. Statement of A.Majeed Mufeed was also recorded on 02.10.2015 under Section 108 of the Customs Act, 1962, wherein he admitted that he was working as Guest Service Agent for M/s. Air India Sats Airport Services Private Limited at Kempegowda International Airport, Bangalore. The nature of his duties included interacting with the passengers arriving by domestic and international flights in the airport from the aerobridge area onwards. He further stated that as he was finding it very difficult to meet his daily needs, he got attracted by the suggestion made by Mivin that he could make easy money by helping the passengers in smuggling gold. He also explained the modus operandi adopted in helping the smuggling of gold. It is stated by him that he would proceed to the aerobridge and meet such passengers whose details used to be given by Mivin; passengers would hand over the smuggled gold to him or in the alternative would drop in the smuggled gold in packets in the waste bin kept in the aerobridge; that there were no CCTV cameras in the said area and hence, he used to collect such smuggled gold in packets from the waste bin. He also stated that on 02.10.2015, Mivin asked him to collect gold from Nidheesh Tharol at the aerobridge; Mivin had informed him that the said Nidheesh would be coming from Dubai to Bangalore via Goa. However, as he was not in aerobridge duty, he could not collect the smuggled gold from Nidheesh Tharol; officers of DRI intercepted Nidheesh Tharol and recovered the gold jewellery from him.
7. The said Mivin and Mufeed Majeed were both arrested on 02.10.2015 under Section 104 of the Customs Act, 1962, for committing the offence punishable under Section 135(a) and 135(b) of the Customs Act, 1962. On further enquiry regarding the activities resorted to by Mivin and Mufeed Majeed and the amount received and invested by them and after verifying the entire materials collected during the course of investigation, the authorities came to the conclusion that the investigation and the confessional statement of the two staff of the airport made it clear that the detenue – son of the petitioner was the recipient of smuggled gold to the tune of 130 Kgs. Search of residential premises of detenue situated at No.8, 1st Main, 1st Cross, 1st Stage, BTM Layout, N.S.Palya, Maruti Layout, Bangalore, on 07.10.2015 resulted in seizure of several incriminating materials.
8. Despite issuance of summons to appear before Bangalore DRI Office on 08.10.2015, detenue did not appear on the specified date. It is also relevant to notice that the detenue had moved Crl.Misc.6957/2015 under Section 438 Cr.P.C. seeking anticipatory bail from the LIX Additional City Civil & Sessions Judge, Bangalore City, which was allowed on 07.11.2015 with certain conditions. In the voluntary statement of the detenue recorded on 03.12.2015, he admitted that he used to visit Bangkok and bring goods such as coats, other garments and articles and live puppies from Bangkok and arrange for selling in Bangalore on commission basis. At times, he used to bring gold jewellery from Bangkok and sell them to the shopkeepers in Chikpet, Bangalore. He admitted that Mr.Mivin at Bangalore used to help him for clearance of goods without declaration to Customs.
9. It is further seen that the Sessions Court cancelled the anticipatory bail vide order dated 21.04.2016 as the detenue failed to comply with the conditions of bail and did not appear before the investigating agency on almost six dates. It is also brought out in the course of investigation that the detenue was involved in foreign currency smuggling case equivalent to Rs.1,04,35,812/-, wherein two persons namely Abdul Ghani and Hameed Ulla were arrested on 09.12.2015 at KIA, Bangalore and foreign currency was seized. On interrogation, both of them admitted that the said foreign currency was in fact given to them by the detenue and the associate of the detenue, one Fazal, for further disposal at Dubai. During the course of investigation, the authorities claim that it came to light that the detenue was the master mind in the smuggling racket of foreign currency to the tune of 0.29 crores also. The further case of involvement of foreign currency smuggling in a sum of Rs.29,37,702/- registered by Bangalore Zonal Unit which was attempted to be smuggled out of the country has been also referred to. On 09.02.2016, the detenue in this case and his associate Fazal were intercepted by the officers of BRI, Bangalore and interrogated with regard to involvement in the seizure of foreign currency and the gold of foreign origin.
10. Fazlur Rahman also stated that both of them were actively involved in smuggling of gold and smuggling of foreign currency out of India and that he used to arrange carriers for smuggling of gold into India. In the further statement of the detenue recorded on 09.02.2016, he has stated among other things, that he had met Mivin through one Arun Verma working for Thai Airways at Bangalore Airport and apart from Mivin and other colleagues of Air India Sats, he used to help in clearance of smuggled gold by way of concealment and non-declaration to Customs using various modus operandi.
11. In paragraph 30 of the grounds of arrest, it is stated that the offence committed by the detenue had serious ramifications affecting the fabric of Indian economy and security. Further, it has been alleged that all the accused involved had committed/abetted offence of smuggling of gold affecting the business of the genuine traders. It is also stated that the detenue was a habitual offender and was a mastermind along with Fazal and others having played a key role in the well organized gang which indulged in smuggling of gold and foreign currency. Thus, it has been alleged that the detenue had put the economy of the country to peril; that he had been a kingpin in the execution of heinous crime against Indian economy in general.
12. The detenue was informed of his right to make representation to the Central Government against the detention order and to the detaining authority and also to the Advisory Board and also regarding the procedure followed before the Advisory Board constituted under Section 8 of the COFEPOSA Act. In the details of documents relied upon, the detaining authority referred to totally 89 documents.
13. Main contention urged by the learned counsel for the petitioner is that the order of detention is vitiated because it states that ‘to prevent the detenue from the act of smuggling foreign currency and gold’, it was necessary to make the order of detention. According to the learned Counsel, as per the grounds of detention, petitioner was allegedly involved in the act of abetting smuggling of foreign currency and gold and not in actually committing the act of smuggling of foreign currency and gold, therefore, the very premise on which the detaining authority has proceeded was wholly erroneous. He also points out that the satisfaction in the grounds of detention and in the order of detention being at variance caused confusion in the mind of the detenue affecting his valuable right available to him under Article 22 of the Constitution in submitting his reply.
14. It is his second contention that the detaining authority while passing the order of detention has relied upon a number of documents including the confessional statement recorded from the other accused, but the detaining authority failed to notice the fact that some of the other accused had retracted the statements made by them, therefore, there was non-application of mind to the effect of retraction. Hence, the detention order is vitiated.
15. It is next contended that the order of detention is vitiated for the reason that illegible documents were furnished and relied upon, which has affected the detenue’s right. It is specifically urged in the writ petition that the illegible documents are found at pages 326, 328, 329, 330, 333, 338, 345, 346, 347, 353, 357, 363, 365, 377 and 382.
16. It is further contended that paragraph 43 of the grounds of detention refer to the show cause notice issued for initiation of prosecution by the appropriate authorities under the Customs Act, 1963, however, the said documents were not furnished, and therefore, the detention order is vitiated. He has placed reliance on the following among other judgments.
(i) DHARMISTA BHAGAT VS STATE OF KARNATAKA & ANOTHER – 1989 Supp (2) SCC 155 – regarding rejection of detenue’s request for supply of legible copy vitiating the detention.
(ii) SMT. ICCHU DEVI CHORARIA VS UNION OF INDIA & OTHERS – AIR 1980 SC 1983, to contend that thought order setting aside detention might result in setting free a possible smuggler which may result in letting loose the smuggler who might in all probability resume his nefarious activities causing incalculable mischief and harm to the economy of the nation, but at the same time, the court cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and that it was tolerated in a free society only as a necessary evil, because the power to detain is an extraordinary power constituting encroachment on personal liberty and it was the solemn duty of the court to ensure that the said power was exercised strictly in accordance with the requirements of the Constitution and the law.
(iii) AYYA ALIAS AYUB VS STATE OF U.P. & ANOTHER – AIR 1989 SC 364 has been relied, wherein again, personal liberty protected under Article 21 of the Constitution is held so sacrosanct and so high in the scale of constitutional values that the Apex Court has shown great anxiety for its protection and wherever a petition for writ of habeas-corpus was brought up it has been held that the obligation of the detaining authority was not confined just to meet the specific grounds of challenge but was one of showing that the impugned detention meticulously accorded with the procedure established by law. However, at this stage itself, we must state that in this judgment, the Apex Court has in paragraphs 8 & 9 dealt with the compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right to personal liberty would lose all their meaning. ‘The pressures of the day in regard to the imperatives of the security of the State and of public order, it is said, might require the sacrifice of personal liberty of individuals. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public-order or to the security of State provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender.’ In this connection, the statement of Thomas Jeferrson to the following effect has been referred, “To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus, absurdly sacrificing the end to the needs”.
17. Referring to the grounds of detention, it is contended by the Counsel for the petitioner that show cause notice dated 02.06.2016 regarding seizure of foreign currency of Rs.1,04,35,812/- from Abdul Ghani and Sri Hameedulla had not been supplied nor its effect considered and hence, the detention is illegal. It is also contended that the concerned accused had specifically retracted the confessional statement recorded from them and such detraction has not been noticed. It is also urged that in the bail application, petitioner has detracted from his voluntary statement. Several judgments are relied upon to contend that these infirmities would vitiate the order of preventive detention.
18. Learned Additional Government Advocate has strongly refuted the contentions urged by the Counsel for the petitioner. He has placed reliance on the judgment in the case of MADAN LAL ANAND VS UNION OF INDIA & OTHERS – AIR 1990 SC 176, to urge that in case of preventive detention, documents having bearing on the subjective satisfaction of the detaining authority must be placed before the detaining authority and if some of the documents have no bearing on the matter, even in their absence, subjective satisfaction taken would not be affected; failure to place such documents or provide the same to the detenue would not be material. He has also relied on the judgment in the case of N.K.BAPNA VS. UNION OF INDIA & OTHERS – (1992) 3 SCC 512 and in the case of SITTHI ZURAINA BEGUM Vs. UNION OF INDIA & OTHERS – (2002) 10 SCC 448 to contend that the volume and nature of the goods seized and the fact that the detenue was part of a bigger network in bringing the gold into the country violating relevant laws and other fact situation involved in this case made it clear that the meaning of the word ‘smuggling’ could not be confined to the goods going out of the country and coming back which are contraband or to evade duty, but may include encouraging such activities as well by dealing in such goods. He has also invited our attention to the judgment in the case of USHA AGARWAL Vs. UNION OF INDIA AND OTHERS – (2007) 1 SCC 295. He has urged by referring to paragraph 13 of the said judgment that a document could be relevant for considering the case of the person for preventive detention, if it relates to or has a bearing on either of the following two issues: (a) Whether the detenue had indulged in smuggling or other activities prejudicial to the State, which the COFEPOSA Act is designed to prevent; and (b) Whether the nature of the illegal and prejudicial activity and the manner in which the detenue had indulged in such activity, gave a reasonable indication that he would continue to indulge in such activity. In other words, whether he had the propensity and potentiality to continue the prejudicial activity necessitating an order of detention. He urges that in case the twin considerations have been satisfied, the detention order is perfectly justified. He has also placed reliance on the judgment dated 04.01.2017 passed by the Apex Court in Criminal Appeal No.2281/2014 in the case of GAUTAM JAIN Vs. UNION OF INDIA & ANOTHER IN CRL.APPEAL NO.2281/2014 DATED 04.01.2017.
He has invited our attention to paragraphs 21 & 22 of the said judgment to emphasize the fact that in the said case, the Apex Court, by referring to various earlier judgments, has laid down that when the detention order has been made based on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly, if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad. Reliance is also placed on the judgment in the case of MST.L.M.S. UMMU SALEEMA Vs. SHRI B.B.GUJARAL AND ANOTHER - (1981) 3 SCC 317 to contend that every failure to furnish copy of the documents to which reference is made in the grounds of detention does not tantamount to infringement of Article 22(5) of the Constitution fatal to the order of detention and that only failure to furnish copies of such documents as were relied upon by the detaining authority making it difficult for the detenue to make an effective representation that would tantamount to violation of the fundamental right guaranteed by Article 22(5). He, therefore, contended that non-supply of the show-cause notice in the instant case would not vitiate the detention order. Reliance is also placed by him on the judgment in the case of ABDUL SATHAR IBRAHIM MANIK VS UNION OF INDIA & OTHERS – (1992)1 SCC 1, particularly to the observations made in paragraphs 12 & 13.
19. On careful consideration of the entire materials on record, we are of the considered view that the detaining authority has formed its subjective satisfaction regarding the involvement of the detenue in smuggling of nearly 120 to 130 Kgs. of gold through Kempegowda International Airport, Bengaluru, by engaging handling agents. The authorities have recovered from travel agents, documents which disclose that the detenue had purchased tickets for international passengers who acted as carriers for bringing gold on various occasions. They have also found that the detenue had himself made about 45 to 50 visits during the period from March 2014 to October 2015 to Bangkok and Dubai and had indulged in making cash transactions worth Rs.35 lakhs during November 2013, October 2013, without even having PAN, through ICICI Bank Savings Account. The investigation conducted by the DRI leading to seizure of Rs.1,04,35,812/- worth foreign currency on 09.12.2015 has revealed that it was the result of planned execution of smuggling operation jointly by the detenue and his associate one Fazal. Thus, overwhelming materials and seizures including seizure of mobiles from airport ground staff at the aerobridge namely Mivin and Mufeed Majeed have formed the basis of the subject satisfaction.
20. Merely because the show-cause notice referred to in the list of documents had not been considered, the same would not render the satisfaction derived by the authority vitiated as the said document was not the document on which the satisfaction was based. Further, the grounds urged in support of detention made it clear that the detenue was the kingpin along with Fazal in smuggling of gold and foreign currency. The search and seizure, in the background of the conspiracy hatched by several persons resulting in smuggling of gold into India and smuggling of currency out of India does not provide any room for the petitioner to contend that there was no material to show that the detenue had himself involved physically and personally in the act of smuggling and that order of detention under Section 3(1)(i) of the Act could not have been issued. The fact that there was vital link between the detenue and Nidheesh Tharol from whom contraband gold was recovered and with Mivin and Mufeed Majeed and others who have actively participated in the illegal activities is evident from the materials gathered during the course of investigation. It is these materials which are made basis for the detaining authority to form the subjective satisfaction.
21. The so called illegible documents at pages 326, 328, 329, 330, 338, etc., are not the documents on which reliance has been placed by the detaining authority for the purpose of passing the order of detention. Therefore, ground urged in this regard cannot be accepted. It is true, relevant evidence if excluded from consideration vitiates the detention. But in the instant case, no case is made out to show that relevant material has been excluded from consideration. We are also aware of the fact that preventive detention would seriously affect the freedom and liberty of the citizen and it is the solemn duty of the court to ensure strict compliance with the procedure prescribed. Mere reference to the earlier order passed in WPHC.No.43/2010 wherein Fazal was involved and a detention order was passed, which the Court had quashed, could not render, in the facts of the present case, the detention illegal. The said fact has not been taken as one of the grounds to base the order of detention.
22. In the instant case, the confessional statement is not the only factor upon which the detaining authority has passed the order. There are several independent facts other than the confessional statement in the form of seizure of gold and recovery of important documents from travel agents, the travel details of the detenue, the nature and manner of activities having deleterious effect on the national economy, thereby seriously and adversely affecting the interest and security of the State, have been brought home during the course of investigation.
23. As held by the Apex Court in the case of PRAKASH CHANDRA MEHTA Vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA & OTHERS – 1985 (SUPP) SCC 144, particularly in paragraphs 78 to 82 and in the wake of the overwhelming materials gathered in the course of investigation by the authorities in the form of seizure of gold, currency notes and several other incriminating materials, the need to protect the society from social menace by detaining such persons engaged in smuggling and related activities which have adverse effect on the national economy aimed at disrupting the economy has to be kept in mind along with the all important fact that the procedural safeguards have to be ensured and the power conferred on the authorities is not casually exercised so that fundamental freedom guaranteed to the citizens is not undermined. Therefore, by adopting such pragmatic and realistic approach, we have carefully considered the entire materials and are of the view that exercise of power by the authorities, in the instant case, has been strictly as per the safeguards provided.
24. We may also add here that Fazal who is one of the associates has not retracted from his statement. So far as the detenue in this case is concerned, he has sought to make some statement in the bail application which has the effect of giving a go bye to his earlier voluntary statement. As per Section 108(3) of the Act, the detenue was bound to state the truth. The effect of this statement is not like a statement given to the police. Therefore, merely because while filing the application for bail before the Court, an attempt was made to deny the statement made under Section 108(3) of the Act, it cannot be said, in the facts of the present case, that the detention order is vitiated because the detenue had detracted from that statement. As already pointed out, the order of detention is not based on the statement of the detenue. Indeed, Mivin and Majeed, the ground staff in the airport have not retracted their statements. Hence, it cannot be said that the detaining authority has acted illegally.
25. For all the reasons stated above, we are of the view that no case is made out for interference with the order of detention passed. Hence, this writ petition is dismissed.
Sd/- JUDGE Sd/- JUDGE KK