ARUNACHALAM, J. - (1.) THE petitioner himself is the detenu. In this writ petition, he has prayed for the issue of a habeas corpus for his production before this Court, to be set at liberty, after quashing the impugned order of detention dated 15.2.1991, passed by the first respondent against him, in exercise of the powers conferred by Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended, with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing or keeping smuggled goods. THE facts which led to the passing of the impugned order of detention will have to be stated.
(2.) ON the basis of intelligence, the officers of Directorate of Revenue Intelligence, Trichy and Madras, while keeping surveillance intercepted the detenu on 6.10.1990 around 3.15 p.m. in front of the office of the Assistant it Director, Handloom Cloth and Yarn, situated a Santhamoorthy Road, Ramnagar, Coimbatore. The detenu was searched and six gold bars with foreign markings kept concealed in cloth pieces and tied below the knee in each of his legs were recovered. The detenu did not possess any documents for the licit origin of the gold bars with foreign markings and, therefore, on the reasonable belief the said gold bars were smuggled into India in contravention of the provisions of the Customs Act, they were seized. ON the clue provided by the detenu, the residential portion of L.K.Sankar; Sekar alias Sekar was searched wherefrom Indian currency of great value were recovered. The gold bars possessed by the detenu were valued at Rs 2,50,565. The detenu volunteered a confessional statement on 6.10.1990. Thereafter, he was arrestee and produced before the concerned court. After follow up action, the impugned order of detention was clamped. Mr.K.A.Jabbar, learned counsel representing the detenu, has urged several contentions to persuade us to quash the impugned order of detention. We will mention those contentions in passing, for, we intend disposing of the writ petition, on one ground, which related to the non-application of mind by the detaining authority, on the possibility of the detenu involving himself or continuing in future in similar activity. The first contention was that there was delay in considering the representation of the detenu dated 12.3.1991. The representation was disposed of on 8.4.1991. The next contention was that documents relating to adjudication later to the detention order have not been placed before the confirming authority. The third ground was that certain documents which the detenu had requested have been furnished to him only after disposal of his representation and that had substantially prevented him from making an effective representation. It was also urged, that the documents at pages 44 and 47 of the paper book supplied, were illegible and that alone would be sufficient to vitate the detention order. On all these grounds we have heard the Additional Central Government Star ding Counsel and we are not inclined to agree with any of those contentions. The reasons there for need not have to be stated, since the petitioner is bound to succeed on the single ground mentioned earlier by us. The single ground posed for our consideration is that the grounds of detention do not disclose any satisfaction arrived at by the detaining authority, to the effect, that the detenu was likely to indulge in the prohibited activity in future and a reading of the grounds in respect of the detention order created an impression that the detention order had been made as a substitute, to punitive action. Since an important and substantial question of law has been raised, based on the language of Sec.3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, visa-vis disclosure of satisfaction arrived at, of the likelihood of the detenu indulging in future prohibited activities, we thought it necessary to hear apart from Mr.K A.Jabbar, Mr.Habibullah Basha, learned Senior Counsel and Mr.B.Kumar. We also heard apart from Mr.T.Srinivasamurthi, Additional Central Government Standing Counsel in charge of this writ petition, Mr.C. A.Sundaram, Additional Central Government Standing Counsel, Mr.B.Sriramulu, the learned. Public Prosecutor and Mr.llias Ali, Additional Central Government Standing Counsel. To appreciate the contention of the learned counsel it is better to refer to the relevant paragraphs in the impugned order of detention. Paragraphs 18 and 19 of the order of detention are extracted hereunder: ?I have carefully gone through the facts and circumstances of the case including the statements recorded, mahazars drawn, bail petitions filed and the orders of the Courts thereon and other documents. On the basis of the aforesaid materials, I have no hesitation in arriving at the conclusion that you have been engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled goods. I am also aware that you have been indulging in similar prejudicial activities on prior occasions also. 19. Even though adjudication and prosecution proceedings under the Customs Act, 1962 are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) with a view to preventing you from transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled goods.?
(3.) IT is very clear from paragraph 18 extracted above, that the detaining authority had carefully gone into the facts and circumstances of the case, including the statements recorded, mahazirs drawn, bail petitions and orders of Court. On the basis of such materials, the detaining authority had concluded that in the past the detenu had been engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled goods, paragraph 18 also shows that the detenu had been involved in similar prejudicial activities on prior occasions also. The sum and substance of the averments found in paragraph 18 will show the involvement in prejudicial activities by the petitioner, not only in the ground instance, but also in similar activities, on prior occasions. In paragraph 19, the detaining authority has stated, that prosecution and adjudication were likely to be initiated, but still he was satisfied that the petitions should be detained with a view to preventing him from transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in keeping or concealing smuggled goods. Nowhere in this order of detention has it been stated, that the petitioner, if allowed to remain at large, will indulge in further future prejudicial activities, needing clamping of the preventive order. We have perused several orders of detention either passed by the State Government or the Central Government, placed before us by either party. In almost all cases it is seen, though the language used may be different, that on the basis of the role played by the detenu and the circumstances pursuant thereto, the detaining authority was satisfied that unless prevented, the detenu would continue the prejudicial activities and, therefore, his detention was considered essential with a view to preventing the detenu in repeating the prohibited activity. Mr.Mahendra Prasad, the officer specially empowered under Sec.3 of the Act who had passed the impugned order of detention, had made similar orders of detention, which have been placed before us, in which his application of mind regarding the possibility of the detenu continuing his future similar prejudicial activity had been mentioned. Unfortunately, the same Officer empowered, had not applied his mind to the scope of future involvement of the detenu, in similar prejudicial activities, while promulgating the impugned order of detention. There is no difficulty, to at once agree, as argued by the Additional Central Government Standing Counsel as well as the learned Public Prosecutor that the very purpose of detention was to prevent future prejudicial activities of the concerned detenus, but in the process of arriving at the need to present any detenu; statements of past activities and present activity alone will not be sufficient, since the application of mind must relate to the future possible prejudicial activity in which the detenu may indulge himself in Sec.3 of the Act reads as hereunder: ?3. Powers to make orders detaining certain persons: 1. The Central Government or State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, especially empowered for the purpose of this Section by the Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - (i) Smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goo is, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods; it is necessary so to do, make an order directing that such person be detained. 2. When any order of detention is made by a State Government by an Officer empowered by a State Government, the State Government shall within ten days, forward to the Central Government a report in respect of an order. 3. For the purposes of Clause (5) of Art.22 of the Constitution the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recovered in writing, not later than fifteen days, from the date of detention.? The words ?it is necessary so to do? found in Sec.3(1) of the Act appear to be significant and important. If these words are excluded and the section were to be read, it permits specially empowered officer, on his being satisfied with respect to any person, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods or allied activities mentioned in the section, to make an order directing the said person to be detained. The effect of the words ?it is necessary so to do? will necessarily take in, the application of mind by the detaining authority of the future prejudicial activity in which the detenu was likely to indulge himself in, which and which alone would permit an order of preventive detention being made. The present and past activities may be sufficient for punitive action. To make an effective order of preventive detention, the necessity to detain him on the basis of possible future activity, must be apparent from the order of detention. The section also takes in its fold communication of the grounds of detention to the detenu, with in a time frame. What exactly ?communication? contemplated in the section would mean, we will advert to, a little later. Mr.T.Srinivasamurthy, Additional Central Government Standing Counsel, vehemently argued, that the past conduct taken along with the present conduct, must be deemed to be a possible estimate of the future conduct. He contended, that the word ?necessary? had different meanings in different contexts and the past and present conduct were only means to an end. Mr.C.A.Sundaram, Additional Central Government Standing Counsel, contended that awareness of the possible future prejudicial activity on the part of the detaining authority need not have to be expressly stated, but may have to be deduced from the totality of facts stated in the order of detention. In other words, the need for an order of detention, if can be culled out from the order of detention, that would suffice for promulgating an order under Sec.3 of the Act. He went on to add, that if a line of reasoning was expected, it would then turn out to be an objective satisfaction. What was required was the spirit of the order and not the letter of the order. He then submitted that expectation of an objective test for future, will only amount to a surmise. The test could be whether a reasonable person could have come to the conclusion, de hors what had been stated or not stated in the order of detention. He submitted, that statement of possible punitive action and adjudication portraying the mind of the detaining authority, would be sufficient to infer, the possibility of the detenu involving himself in future prejudicial activities Mr.B.Sriramulu and Mr.Illias Ali while adopting the arguments of the two Additional Central Government Standing Counsel, contended that ex facie the detention order need not contain about the future activity, since it was inferential. ;