I.

WHETHER

THE APPELLANT HAS THE LOCUS STANDI TO MOVE THE

SUPREME

COURT OF ARAHAN. Article 136 involves two steps, viz., (i) granting special leave to appeal; and (ii) hearing the appeal. Although, both these stages are dealt with by Article 136, these are two distinctly separate stages. The first stage continues up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.1 1. That the special leave petition should not be granted under Article 136 of the Constitution of Arahan. The Mutusarai High Court dismissed the writ petition under Article 226 by an order dated 10.06.2011 and held that detention of Mr. Blondie was justified in the light of national security, further holding his detention to be in conformity with the due procedure. In consequence of this, the appellant i.e. the detenu has appealed to this Honble Supreme Court of Arahan. 2 Now, since there has been an appeal3 before this Court and that also without the issuance of certificate by the High Court4, the appellant can move this Honble Court only under Article 136 of the Constitution of Arahan. Although, Article 136(1) empowers the Supreme Court to grant, in its discretion, special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India, it has certain limitations in granting such appeal which are as follows: 1.1 Exhaustion of remedies: Since the powers under Article 136 to grant leave should be used very sparingly, the appellant should have exhausted all other remedies available to him before approaching this Court under Article 136. And, under such other remedies, the appellant could have moved this Honble Court under Article 32 of the Constitution of Arahan asking for appropriate writ as several additional grounds and evidences

1 2

Page no. 244, M P Jain. Para. 6, Fact Sheet. 3 In an appeal to the Supreme Court, only appellate jurisdiction of the Supreme Court can be 4 An appeal under Article 132 or Article 134 requires issuance of a certificate by the High Court under Article 132(1) and Article 134(1) (iii) respectively.

were further identified in due course of time resulting in non-application of res judicata in his approach under the said Article.

1.2 Presence of exceptional circumstances and grave injustice: It has been said by this Honble Court itself in Pritam Singh v. The State5 that the power conferred by Article 136 is to be exercised sparingly and in exceptional cases only. Moreover, this Court grants leave only when special circumstances exist, substantial and grave injustice has been done, and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, or there has been a departure from legal procedure such as vitiates the whole trial, or if the findings of fact were such as were shocking to the judicial conscience of the Court.6 In the present case, the High Court has on 10/06/11, already decided the case on merits taking into consideration all the facts and circumstances of the case that detention was justified in the light of national security7 and due procedure was followed.

1.3 Backlog of cases: Article 136 imposes no restriction or limitation on the power of the Supreme Court to hear appeals. Nevertheless, the Court has sought to impose on itself some restrictions in exercising this vast appellate jurisdiction. This has been done with a view to reduce the flow of appeals to it so that it is not faced with a huge backlog of cases.8

5 6

AIR 1950 SC 169: 1950 SCR 453. Pritam Singh v. The State, AIR 1950 SC 169: 1950 SCR 453; Sadhu Singh v. Pepsu, AIR 1954 SC 271: 1954 CrLJ 727; Haripada Dey v. State of West Bengal, AIR 1956 SC 757: 1956 SCR 639; Ram Jag v. State of Uttar Pradesh, AIR 1974 SC 606: (1974) 4 SCC 201; State of Uttar Pradesh v. Ballabh Das, AIR 1985 SC 1384: (1985) 3 SCC 703; State of Uttar Pradesh v. Ram Swarup, AIR 1988 SC 1028: 1988 Supp SCC 262; State of U.P. v. Pheru Singh, AIR 1989 SC 1205: 1989 Supp (1) SCC 288; Mahesh v. Delhi, (1991) CrLJ 439; State of U.P. v. Anil Singh, AIR 1988 SC 1998: 1988 Supp SCC 686. 7 Rajendra Kumar Natvarlal Shah v. State of Gujarat, 1988 CrLJ 1775; also referred in Para. 16, Rajeev Verma v. Union of India, 2007 CrLJ 1232. 8 Page no. 249, M P Jain.

1.4 Not a right of the appellant but only discretionary power of the Court: Moreover, this Court has itself emphasized that Article 136(1) does not confer on any one any right to appeal. It confers on Supreme Court an overriding and extensive power to grant special leave to appeal which is in the discretion of the Court.9

2. That the appeal is not maintainable under Article 136 of the Constitution of Arahan. Even if this Honble Court grants special leave to appeal from the decision of the High Court, this Court should not go into such merits of the case which have already been decided by the Honble High Court of Mutusarai, i.e. the legality of the detention order and the due procedure so followed in detaining the appellant. It is so because; principle of res judicata will be applicable.

II.

WHETHER

THE

DETENTION

ORDER

PASSED

BY

THE

GOVERNMENT

OF

MUTUSARAI (HOME DEPARTMENT) LEGAL.

1. That the act of Mr. Blondie Baweja amounts to abatement of Smuggling to the subjective satisfaction of the detaining authority under COFEPOSA Act, 1974. The act of the detenu i.e. Mr. Blondie Baweja amounts to abatement of smuggling thus authorizing the state government to pass a detention order under Section 3(1) (ii) of the COFEPOSA Act.10 As it is evident from the fact that Mr. Changezi, who was found with 30 gold biscuits on inspection at Mutusarai International Airport on 01/06/2010, stated before the appropriate authority that the biscuits were entrusted to him by Mr. Blondie for conveying it to

Municipal Board v. Mahendran, AIR 1982 SC 1493: (1982) 3 SCC 331; Laxman Marotrao Navakhare v. Keshavrao, AIR 1993 SC 2596: (1993) 2 SCC 270; Hari Singh v. State of Haryana, (1993) 3 SCC 114: 1993 SCC (Cri) 631. 10 Section 3(1) (ii) of the COFEPOSA Act: The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that 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 abetting the smuggling of goods.

Amsterdam and handing it over to one Cheyenne Anderson for which he was to be paid some remuneration.11 It means that the detenu was involved in abetting12 the smuggling of goods by instigating Mr. Changezi to export the gold biscuits to Amsterdam in return of some remuneration. Moreover, the act of hiding of 30 gold biscuits in a cardboard packet in a suitcase by Mr. Changezi at Mutusarai International Airport during his wait to take the flight to Amsterdam13 amounts to smuggling of goods under Section 2(e) of the COFEPOSA Act14. As, "smuggling", in relation to any goods, means: Any act or omission which will render such goods liable to confiscation under section 111 or section 113 of the Customs Act, 1962.15 And, the concealment of gold biscuits, which are dutiable16 or prohibited goods17, in a cardboard packet of a suitcase to export it to Amsterdam, was an attempt to improperly export them, thus making them liable to be confiscated.18 Thus, the seizure of the 30 gold biscuits was valid in accordance with the law. In Gopalan v. State of Madras19 Section 3 of the Preventive Detention Act, 1950 was impugned on the ground that it did not provide an objective standard of conduct. Kania C.J. held that no such objective standard of conduct can be prescribed, except as laying down conduct tending to achieve or to avoid a particular object. For preventive detention, action must be taken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. It is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established
11 12

Para. 2, Fact sheet. Section 3(1)(ii), COFEPOSA Act, 1974. 13 Para. 2, Fact sheet. 14 Section 2(e), COFEPOSA Act: Smuggling has the same meaning as in clause (39) of Section 2 of the Customs Act, 1962, and all its grammatical variations and cognate expressions shall be construed accordingly. 15 Section 2(39), Customs Act, 1962. 16 Section 2(14), Customs Act, 1962: "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid.[ Section 2(22), Customs Act, 1962 defines: "goods" includes- (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property.] 17 Section 2(33), Customs Act, 1962: "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. 18 Section 113, Customs Act, 1962: Confiscation of goods attempted to be improperly exported, etc.: The following export goods shall be liable to confiscation:- (e) any dutiable or prohibited goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation. 19 A.I.R. 1950 S.C. 27.

based on some grounds.20 Now here clearly grounds are established by statements of Tuco Benedicto Changezi corroborated by the statements of Blondie Baweja and other people which directly confirmed the involvement of the detenu.21

2. That the safeguards available in preventive detention has been provided to the detenu. the general law says that a person should not be detained for more than 24 hours without the authority of a magistrate, but Article 22(3) makes two exceptions, where Article 22(1) and Article 22(2) dont apply to: (a) enemy aliens, and (b) to persons arrested or detained under a law providing for preventive detention. In the present case, the detenu has been preventively detained under COFEPOSA Act22 for abetting smuggling of gold biscuits. Clauses 4 to 7 of Article 22 lay down a few safeguards which must be observed in any case of preventive detention, which have been provided to the detenu by the State government in the present case. These are: Communication of the grounds to the detenu, Right to make representation and consideration of the same by the detaining authority and making of advisory board and confirming or revoking the detention order on the report of advisory board. The state government, showing great responsibility served the detenu with the order and grounds of detention together with the copies of various documents referred to in the grounds, thus fulfilling its duties sincerely and actively. 23 In the present case, the detenu was also informed that he had a right to make a representation to the State Government as also to the Government of Arahan against the order of detention, just after his arrest on 29/09/10.24 3. That the due process of law has been followed by the detaining authority.

Any law providing for detention for a longer period of 3 months without obtaining the opinion of the Advisory Board must provide the class or classes of cases and also the circumstances under
20 21

A.I.R. 1951 S.C. 157. Para. 2, Fact sheet. 22 Parliament has enacted COFEPOSA Act under its residuary power read with Entry 36, List I. 23 Para. 3, Fact sheet. 24 Supra at 21.

which a person may be detained for more than 3 months.25 It means that the Parliament must provide both (a) the classes of cases, and (b) the circumstances under which detention for a longer period of 3 months can be made.26 Article 22(7) contained an exception to Article 22(4). It empowered Parliament to enact a law and provide for a detention for more than 3 months without the opinion of the Advisory Board. Thus, the opinion of the Advisory Board was not necessary in the cases (1) when period of detention does not exceed 3 months, and (2) when Parliament by law prescribed the maximum period for which a person may be detained under Article 22(4)(b) and 22(7)(a).27 It is submitted that, what Article 22(4) of the constitution requires is that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons having the qualifications specified therein, reports before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. It is stressed that there is nothing in the language of Article 22(4) or in COFEPOSA which requires that the confirmation of the detention on the basis of the report of the Advisory Board, should also be within three months from the commencement of the detention. Now as to the question of delay, some delay is inherent in the very nature of enforcement of a law relating to preventive detention like the COFEPOSA Act between the prejudicial activities complained of and making of an order of detention. When a person is detected in the act of smuggling, thorough investigation into all the facets is required to be undertaken with a view to determine the identity of all the persons engaged in these operations, which have a deleterious effect on the national economy. The clandestine manner in which such operations are carried out makes investigation and collection of evidence, time consuming.28 In these circumstances, the detention order cannot be said to be vitiated by any extraordinary delay.29 The power to detain is to be exercised on being satisfied with respect to any person that with a view to preventing him from including in any prejudicial activity specified in S. 3, it is necessary
25 26

Jnp 289 S.N.Sarkar v. UOI, AIR 1973 SC 1425. 27 Jnp 289 28 Para. 16, Rajeev Verma v. Union of India, 2007 CrLJ 1232; Rajendra Kumar Natvarlal Shah v. State of Gujarat, 1988 CrLJ 1775. 29 Ibid, at Para. 17.

to make an order for his detention. Under this Act, as laid down in S. 3(1), an order of detention may be passed by- (i) The Central Government; (ii) an officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government; (iii) State Government; or (iv) any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes.30 It is a well established principle of law that even a single incident is enough to prove the propensity and potentiality of the detenue so as to justify the order of preventive detention as laid down by this court in the case of Pooja Batra v. Union of India, [(2009) 5 SCC 296].31 In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenue would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future. In other words, while a single act of smuggling can also constitute the basis for issuing an order of detention under the COFEPOSA Act, highest standards of proof are required to exist.32 "Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.33 Single act of theft of telegraph copper wires in huge quantity and removal of railway fishplates respectively was held sufficient to sustain the order of detention.34 Anil Dey v. State of W.B. It was a case of theft of railway single material. here too one act was held to be sufficient. Similarly, in Israil SK v. District Magistrates of West Dinjapur35 and Dharua Kanu v. State of W.B.36 single act of theft of telegraph copper wires in huge quantity and removal of railway fishplates respectively was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala, a case arising under COFEPOSA,

30 31

Mpj 1271 Para 22, Gimik Piotr v State of Tamil Nadu and Others, 2009 Indlaw SC 1543. 32 Pooja Batra v. Union of India, [(2009) 5 SCC 296] 33 1995CriLJ426 34 1975CriLJ459
35 36

1975CriLJ275 1975CriLJ459
7

a single act, viz., and attempt to export a huge amount of Indian currency was held sufficient.37 Also a confession made to a custom officer by a person accused of any offence can be proved against that person and is admissible, as the custom officer does not come under the purview of police officers under Section 25 of the Evidence Act.38 Therefore in light of the above arguments and facts of the case it is submitted that the detention of the petitioner is legal.

37 38

AIR1982SC1165

Ballabhdas v. Collector of Customs, AIR 1965 SC 481; State of Maharashtra v. P. K. Pathak, 1980 CrLJ 923: AIR 1980 SC 1224; Ram Jaiswal v. State of Bihar, AIR 1964 SC 828.