J 1984 SCC OnLine Guj 230 1985 Cri LJ 293 1985 26 1

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1984 SCC OnLine Guj 230 : 1985 Cri LJ 293 (FB) : (1985) 26 (1) GLR 169
(Gujarat High Court)

Full Bench
(BEFORE P.S. POTI, C.J. AND S.B. MAJMUDAR AND I.C. BHATT, JJ.)
Harendra Gangadas Doshi … Petitioner;

Versus
Addl. Secy. to the Govt. of India, New Delhi and others …
Respondents.
Special Criminal Applns. Nos. 399, 427, 428, 434 etc. of 1984
Decided on December 5, 1984
Page: 294
The Judgment of the Court was delivered by

P.S. POTI, C.J.:— A Division Bench of this Court, while hearing a batch of petitions
challenging the detention orders passed by the Central Government under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974,
was called upon to consider the validity of a declaration made by the empowered
officer of the Central Government under S. 9 of the said Act as amended by Ordinance
No. 8 of 1984. The Ordinance substituted S. 9 of the Act by a new section. The new
section reads as follows:
“9.(1) Notwithstanding anything contained in this Act, any person (including a
foreigner) in respect of whom an order of detention is made under this Act at any
time before the 31st day of July, 1987 may be detained without obtaining, in
accordance with the provisions of sub-clause (a) of clause (4) of Article 22 of the
Constitution, the opinion of an Advisory Board for a period longer than three months
but not exceeding six months from the date of his detention, where the order of
detention has been made against such person with a view to preventing him from
smuggling goods or abetting the smuggling of goods or engaging in transporting or
concealing or keeping smuggled goods and the Central Government or any officer of
the Central Government, not below the rank of an Additional Secretary to that
Government, specially empowered for the purposes of this section by that
Government, is satisfied that such person—
(a) smuggles or is likely to smuggle goods into, out of or through any area highly
vulnerable to smuggling; or
(b) abets or is likely to abet the smuggling of goods into, out of or through any
area highly vulnerable to smuggling; or
(c) engages or is likely to engage in transporting or concealing or keeping
smuggled goods in any area highly vulnerable to smuggling.
and makes a declaration to that effect within five weeks of the detention of such
person.
Explanation 1.— In this sub-section, “area highly vulnerable to smuggling”
means—
(i) the Indian customs waters Contiguous to the States of Gujarat, Karnataka,
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Kerala, Maharashtra and Tamil Nadu and the Union territories of Goa, Daman
and Diu and Pondicheny;
(ii) the inland area fifty kilometres in width from the cost of India falling within
the territories of the States of Gujarat, Karnataka, Kerala, Maharashtra and
Tamil Nadu and the Union territories of Goa, Daman and Diu and Pondicherry;
(iii) the inland area fifty kilometres in width from the India-Pakistan border in
the States of Gujarat, Jammu and Kashmir, Punjab and Rajasthan;
(iv) the customs airport of Delhi, and
(v) such further or other Indian customs waters, or inland area not exceeding
one hundred kilometres in width from any other cost or border of India, or
such other customs
Page: 295
station, as the Central Government may, having regard to the vulnerability of such
waters, area or customs station, as the case may be, to smuggling, by notification in
the Official Gazette, specify in this behalf.
Explanation 2. — For the purposes of Explanation 1, “customs airport” and

“customs station” shall have the same meaning as in clauses (10) and (13) of
section 2 of the Customs Act, 1962, respectively.
(2) In the case of any person detained under a detention order to which the
provisions of sub-section (1) apply, section 8 shall have effect subject to the
following modifications, namely:—
(i) in clause (b), for the words “shall, within five weeks”, the words “shall, within
four months and two weeks” shall be substituted;
(ii) in clause (c),—
(1) for the words “the detention of the person concerned” the words “the
continued detention of the person concerned” shall be substituted;
(2) for the words “eleven weeks”, the words “five months and three weeks”
shall be substituted;
(iii) in clause (f), for the words “for the detention”, at both the places where they
occur, the words “for the continued detention” shall be substituted.”
2. It is this section which applies to the present cases. The section contemplates
satisfaction on the part of the Central Government or the empowered officer of the
Central Government in terms mentioned in clauses (a), (b) or (c) of sub-section (1) of
S. 9. Such satisfaction was recorded in these cases (in two of these cases, namely
Special Criminal Applications 485 and 399 of 1984, this question does not arise as
there is no challenge to any declaration in those cases, but we have mentioned in the
cause title those two cases also because reference order proceeds as if the question
arises in those cases also and reference has been made in that manner) and the
question the Division Bench was called upon to consider was whether there was factual
basis for recording such satisfaction. Reliance was placed on the decision of the
Supreme Court in Smt Rekhaben Virendra Kapadia v. State of Gujarat, (1979) 2 SCC
566 : AIR 1979 SC 456 : (1979 Cri LJ 212) by the petitioners to contend that the
order of detention was based on a past incident so distant in point of time that the
requirement of S. 9 was not satisfied in either of these cases. It was contended that
this was the approach made in the Supreme Court decision adverted to and therefore
it was urged before us that making the same approach the declarations must be found
to be bad in these cases. The Judges of the Division Bench were evidently of different
views on the subject and the Bench after stating these felt that it would be proper, in
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view of the importance of the question, to refer the question for decision to a Full
Bench. We notice that the question that we are called upon to decide has not been as
such stated by the Division Bench in the order of reference. In fact it would appear
that the challenge was to the declaration under S. 9(1) and the challenge was made
on the basis that when once it was shown that the declaration was based only upon
the materials furnished by an incident of an anterior date it would not be possible for
the Court to uphold such declaration, for clause (a) refers to satisfaction of the officer
that the person “smuggles” and similar is the case with clauses (b) and (c) and it
could not be said that a person “smuggles” goods merely because the available
materials indicate that he had smuggled goods. In the absence of a question framed
or posed by the Division Bench we have necessarily to pose it so that we may furnish
the answer. After discussion at the Bar and after going through the order of reference
we propose to answer the question which we pose in the following form:
In a case where the declaration under section 9(1) of the COFEPOSA Act records
satisfaction in terms of clauses (a), (b) and (c) of Section 9(1) of the Act could such
declaration be upheld if such satisfaction is based only on material relating to
incidents of dates prior to the date of declaration and even prior to the date of order
of detention.
An answer to this should furnish the answer called for in this reference.
3. It may not be necessary to state the facts in all these cases in view of the course
we propose to adopt Statement of facts to follow is more illustrative than exhaustive.
The facts which are relevant for seven of these petitions are identical. They are Special
Criminal Applications Nos. 427, 428, 434, 435, 456, 457, and 458 of 1984. All these
seven cases are based upon the same set of facts and the detention order in all these
cases is that of 29-6-1984. Pursuant to such orders the petitioners have been
detained. The amendment of S. 9
Page: 296
of the COFEPOSA Act was by Ordinance No. 8 of 1984 on 13-7-1984. The declarations
under S. 9 impugned in these cases is that made by the empowered officer of the
Central Government on 30-7-1984. The declaration made in the case of the petitioner
in Special Criminal Application No. 457 of 1984 records satisfaction that the petitioner
“smuggles and is likely to smuggle” falling within clause (a). In the case of the
petitioners in Special Criminal Applications Nos. 428, 435, 455 and 456 of 1984
satisfaction recorded is that in the case of each of the petitioners he “abets and is
likely to abet the smuggling of goods”. That falls within clause (b) of S. 9(1). In the
case of the petitioners in Special Criminal Applications Nos. 427 and 434 of 1984
satisfaction recorded under S. 9(1) is that each one of the petitioners “engages and is
likely to engage in transporting smuggled goods”. This falls within clause (c) of S. 9
(1). The incidents on which the action is based are evidently those which took place on
12th and 13th of March, 1983. To illustrate again we may also point to a second set of
cases, namely Special Criminal Applications Nos. 459 and 468 of 1984 where the-
detention order is of the date 27-6-1984 and the declaration is of the date 28-7-1984.
Such declaration is based on an incident of 26-2-1984. In Special Criminal
Applications Nos. 440 and 441 of 1984 the detention order is of the date 29th June,
1984, the declaration of 30-7-1984 and the satisfaction is based on incidents of 21st
and 27th March, 1984. We are referring to these dates only to indicate how far
removed the incidents relied on are from the dates on which the detention order was
passed and the declaration under S. 9(1) was made.
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4. We may notice that S. 9(1) declaration which has the effect of giving a longer
period for the Advisory Board to express its opinion and a longer period for the
detention order speaks of satisfaction of one or other alternative situations mentioned
in clauses (a), (b) and (c). In other words, the satisfaction may be that the detenu
‘smuggles’ or it may be that he ‘is likely to smuggle’. Similarly the satisfaction may be
that the detenu ‘abets’ or ‘is likely to abet’. Coming to clause (c) the satisfaction is
that the detenu ‘engages’ or ‘is likely to engage’ in transporting smuggled goods. It is
not that the requirements in each of these cases are cumulative. Therefore it need not
be shown that the detenu smuggles and is likely to smuggle. It is sufficient if the
empowered officer is satisfied that the detenu smuggles or that he is likely to
smuggle. Each one of such satisfactions will support the declaration. It may be that in
a given case both the elements are present and therefore the satisfaction could be on
both points, namely that the detenu smuggles and is likely to smuggle. In the cases
before us the satisfaction is evidently on both. Briefly stated, the contention of the
petitioners in these cases may be stated thus: Evidently the officer making the
declaration did not have any material other than that relied on for the purpose of
making the detention order under S. 3(1) of the COFEPOSA Act. That evidence related
to incidents of a date anterior to the date of the order of detention. Though satisfaction
called for to make the order of preventive detention may be based not upon any
material contemporaneous with the date of detention such material would not be
sufficient to sustain an order of declaration under the first part of S. 9(1)(a), (b) and
(c). In other words, when the section speaks of satisfaction that the detenu
‘smuggles’, the detenu ‘abets smuggling’ or, the detenu ‘engages in the transport of
smuggled goods’ the material which ought to be available for enabling the empowered
officer to be satisfied is material which has relevance to the date of the declaration and
not an earlier date. If the only material on which the empowered officer relies for the
purpose of satisfaction in making a declaration that the detenu smuggles or abets or
engages in the transport is that of a date anterior to the date of declaration such
declaration would be bad, as the satisfaction would not be that the detenu smuggles
or the detenu abets or the detenu engages in transport, but that the detenu had
smuggled, that the detenu had abetted and the detenu had enagaged in the transport.
It is further argued that if the notification is found to be bad for the reason that the
empowered officer cannot be said to have been validly satisfied of the first part of
section 9(1)(a), (b) or (c), irrespective of whether there was material to satisfy him
that the detenu is likely to smuggle or is likely to abet or is likely to engage in the
transport, the declaration must fail as a whole. Consequently in these cases where
reliance is upon materials relating to incidents of an earlier date satisfaction under
section 9(1) would be on irrelevant material, material which has no nexus to the
satisfaction and once that is shown irrespective of any other question the declaration
must fail.
Page: 297
5. Having stated the case of the petitioners thus we proceed to state the possible
answer to support the declaration the sustainability of which we will have to consider.
S. 9(1), no doubt, calls for satisfaction that the detenu smuggles or abets or engages
in transport of smuggled goods. It is not to be understood as satisfaction on materials
showing that on the day the declaration is made the detenu is carrying on such
activity. That would be a very unreasonable construction, a construction which may
lead to anomalous, if not absurd results. That is because S. 9(1) contemplates a
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declaration to be made subsequent to the order of detention. Inasmuch as the

declaration could only be subsequent to the order of detention it is impossible to
envisage a situation where the detenu is carrying on the activity of smuggling on the
date of declaration or abetting or engaging himself in the transport on such date since
before such date he would necessarily have been in detention and he could not be
carrying on such activity during the period of detention. It may not even be that the
materials available indicate that on the date of detention he is carrying on that
activity, for there must necessarily be an interval of time between the date the facts
relating to the activities of the detenu comes to the notice of the Central Government
which orders detention, and the decision taken for such detention. (So the meaning to
be given to the term ‘smuggles’ or ‘abets’ or ‘engages’ cannot be such as to restrict it
to a continued activity on the date of the declaration or even on the earlier date of
detention that the cases here the incidents on the basis of which action has been
taken which furnished the material for satisfaction are directly referable to the
detention and that would be sufficient to attract the first part of S. 9(1)(a), (b) and
(c). Alternatively, in these cases, it is not necessary for the empowered officer to be
satisfied that the detenu smuggles or abets or engages and it would be sufficient if the
officer is satisfied that he is likely to smuggle, is likely to abet or is likely to engage in
transport. Such satisfaction is an independent satisfaction and if such satisfaction is
also recorded that would stand independently. Even if the petitioners' contention that
the matter would not be justified with reference to S. 9(1)(a), (b) and (c) first part is
sustainable the declarations would be justifiable under the latter part, namely
satisfaction about the likelihood and that would be sufficient to sustain these
declarations. We may mention here that the petitioners point out that this would run
counter to the decision of the Supreme Court adverted to, namely that of striking
down the entire declaration when once it was found that the declaration was bad in so
far as the former part of S. 9(1)(a) was concerned.
6. We shall now proceed to examine the scope of the term ‘smuggles’ in S. 9(1)(a)
of the Act. What we say with reference to ‘smuggles’ will equally well apply to ‘abets’
or ‘engages in’. The contention stated by the petitioners to which we have adverted
would necessitate the officer making the declaration to be satisfied on materials before
him that on the date the declaration is made the activity of smuggling by the detenu
continues. In other words, it is not sufficient if he is satisfied that at any time prior to
the date of the declaration the detenu was carrying on the activity of smuggling, but
that such activity continued up to the date of the declaration. That, according to the
petitioners, is necessary because the satisfaction is that the detenu smuggles and if
the satisfaction concerns his activity at any time anterior to the date of declaration
that would only be a satisfaction that the detenu had smuggled and not that the
detenu smuggles. In a statute which purports to curtail the liberty of a citizen and
restricts his right guaranteed under Art. 21 of the Constitution a Court has necessarily
to interpret the provision strictly and there would be no justification to read into such
provision any relaxation of the standards required to be proved on the literal language
of the provision. It is a well known rule of construction that it is not for the Court to
make the law and the law should be applied even if the law does not accord with the
notions of right and wrong of the Court. These are no doubt correct rules of
interpretation. But here the situation is different. If the result of reading the section in
that manner is to make the section unworkable or to make it anomalous to the extent
of absurdity the Court would be justified in not giving undue importance to grammar.
To quote the observation of Krishna Iyer, J. in Carem and Co. Ltd. v. Union of India,
(1975) 2 SCC 791 : AIR 1975 SC 2260 (at p. 2269):
“No doubt, grammar is a good guide to meaning but a bad master to dictate.
Notwithstanding the traditional view that grammatical construction is the golden
rule. Justice Frankfurter used words of practical
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Page: 298
wisdom when he observed Massachusetts S. & Insurance Co. v. U.S., (1956) 352 U.S.
128 at p. 138:
“There is no surer way to misread a document than to read it literally”.

7. If a too literal adherence to the words of any provisions of law leads to absurdity
or unreasonableness a Court will have to construe it in a manner not quite strictly
grammatical vide Williams v. Evens, (1676) 1 Ex. D. 277 referred to at page 87 of
Craies on Statute Law (Seventh Edition). No doubt the English Courts have often
sounded a note of caution about the rule of construction necessitated on account of
absurdity of the result, but even so the need for the reading down and on occasions
even doing a little violence to the language of a provision of statutes where a literal
construction would lead to anomalous results has been recognised in a series of cases.
The commission of an offence “in the vicinity of any prohibited place” was read to
mean “in or in the vicinity of the place in Adler v. George, (1964) 2 Q.B. 7 as a
different construction would make it an offence if the act is committed in the vicinity
of the prohibited place, but not in the prohibited place leading to anomalous results.
The intention to produce unreasonable result is not to be imputed to the legislature
vide Artemiou v. Procopiou, (1966) 1 Q.B. 878. There is no need to multiply
illustrations from decided cases. Reference has been made to such cases in “Craies on
Statute Law” at pages 87 to 89 and in “Maxwell on the Interpretation of Statutes”
Chapter 10 pages 199, 200 and 210. As observed by Lord Reid in Luke v. Inland
Revenue Commrs., (1963) Appeal Cases 557:
“To achieve the obvious intention and produce a reasonable result we must do
some violence to the words. This is not a new problem, though our standard of
drafting is such that it rarely emerges. The general principle is well settled.”
8. What Lord Reig said about the standard of drafting could not be said about the
standard of drafting in this country as in evident from the plethora of case law which
has arisen only because of defective drafting. Evidently the reason is obvious.
Legislations here are so numerous and the amendments so frequent that there is very
little time for deliberation for the legislature and less time for the draftsman for
exhibiting craftsmanship, much less imparting an artistic touch.
9. We have already indicated that a detenu cannot indulge in the continued activity
of smuggling on the date of the declaration which is posterior to the actual detention.
It could even be said that normally there cannot be material as to such continued
activity on the date detention order is passed, for it is not passed the day matters
come to the notice of the authority who initiates action for detention. The process
takes time. The Central Government acts through its numerous officers working at
different places. They come to notice materials sufficient to initiate action through
reports from such officers. Such materials are processed through the hierarchy of
officers. On a responsible officer taking a decision that the material deserves to be
acted upon and so must be brought to the notice of the Government he does so. The
Government takes time to deliberate over it and pass the detention order. No doubt
this process has to be quick and emergent as otherwise the detention will be on the
basis of materials relating to a distant past making the detention process not relevant
on the facts disclosed. Even if the action is expeditious it is bound to take some time
and therefore it cannot be said that the Government is actually acting on the material
related to the date of passing of the order of detention. In other words, even in a case
where the Central Government acts promptly, as it should, the material available to it
on which it bases the order of detention will not be material relating to the conduct of
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the detenu on the date of detention, but the (sic) of an anterior point of time, but
material which will by its very nature indicate continued activity. Therefore, in no case
could it be rightly said that the declaration under S. 9(1) must be based upon
satisfaction of materials which relates to actual continued activity on the date of
detention and even on the date of declaration. To construe so would be self-defeating,
would be frustrating the intention of the Legislature and frustrating the operation of
the detention process.
10. The materials which furnish the satisfaction of the Central Government or the
empowered officer for a declaration under S. 9(1) that the detenu smuggles must be
proximate. Such proximity is not to be determined on the basis of any time limit. If
the determination is based in some past event which is not the immediate cause for
taking up the question of detention against the detenu
Page: 299
it would not be proximate for satisfaction that the detenu smuggles though such
material may under certain circumstances support the satisfaction that he is likely to
smuggle. In other words, past events or incidents or material relating to past conduct
which were not the immediate cause for taking up the case for detention may be
operating in the mind of the Central Government or the empowered officer to satisfy
that the detenu is likely to smuggle but it would not under all circumstances be
sufficient to satisfy that he ‘smuggles’. If the past acts or conducts are such that in
the usual course one could reasonably presume on such material that the activity
continues it would be different. If the detention is taken up on account of present
prejudicial activity which would satisfy at that moment that the person concerned
smuggles that would be sufficient satisfaction for the purpose of S. 9(1)(a) though
between that point of time and that of passing of a detention order or later, making a
declaration there is an interval of time. In other words, the term ‘smuggles’ need not,
in the context of S. 9(1)(a), suggest that there are positive materials concerning
smuggling operations on the date of the declaration under S. 9(1). If such acts were
the proximate cause for taking up the case for detention or if the material would
furnish indication of acts which in their very nature would be continuous it would be
open to the Central Government or the empowered officer to be satisfied that the
detenu smuggles. That, according to us, is the scope of the first part of S. 9(1)(a), (b)
and (c). We will necessarily have to consider whether this interpretation put upon S. 9
(1) does accord with the view expressed by the Supreme Court in Smt. Rekhaben
Virendra Kapadia v. State of Gujarat, (1979) 2 SCC 566 : AIR 1979 SC 456 : (1979
Cri LJ 212).
11. In the case before the Supreme Court an order of detention was passed under
S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 on 7th February, 1977 directing that it was necessary to detain
the detenu with a view to preventing him from engaging in transporting smuggled
goods. Pursuant to this the detenu was detained in the Ahmedabad Central Prison
after he surrendered on 4th July, 1977. On 2nd August, 1977 a declaration under S. 9
of the COFEPOSA Act was passed by the 4th respondent in that case stating that he
was satisfied that the detenu engages and is likely to engage in transporting
smuggled goods. One of the questions which the High Court had to consider was
whether there was reasonable nexus between the prejudicial activity and the purpose
of detention. It was argued that inasmuch as the events treated as evidence of
prejudicial activities on the part of the detenu were those of 1973 and 1974,
reasonable nexus had been snapped by the time lag and therefore the order of
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detention was without the genuine satisfaction of the detaining authority. Referring to
such time-lag the Court noticed that whether it would be sufficient to snap the
reasonable nexus between the prejudicial activity and the purpose of detention would
depend upon the facts of the case. The sufficiency of the satisfaction would necessarily
depend upon whether the material relied on indicating prejudicial activity on the part
of the detenu would be sufficient to assume that the detenu is likely to continue in his
activities in the future that being the object of detention. Referring to the case of the
detenu in that case who was a driver of a well-known smuggler on a pay of Rs. 5,000/-
per mensem the Court felt that this might satisfy the authority that he was likely to
continue in his activities in the future and as such would justify his detention.
Reference was then made to the ratio in the earlier case Gora v. State of West Bengal,
(1975) 2 SCC 14 : AIR 1975 SC 473 : 1975 Cri LJ 479 that:
“the test of proximity is not a rigid or mechanical test to be blindly applied by
merely counting the number of months between the offending acts and the order of
detention”.
12. The rule was stated thus:
“The question is whether the past activities of the detenu are such that the
detaining authority can reasonably come to the conclusion that the detenu is likely
to continue in his unlawful activities. If the detaining authority in this case had
come to the conclusion taking into account the past activities of the detenu that he
is likely to continue to indulge in such activities in future there would be no
justification for this Court to interfere. It is quite likely that persons who are deeply
involved in such activities as smuggling can cause a reasonable apprehension in the
minds of the detaining authority that they are likely to continue in their unlawful
activities.”
Page: 300
13. It is no doubt true that reference in the above said observations was to the
satisfaction for the purpose of passing the order of detention. That would be
satisfaction about the likelihood of the detenu acting in a prejudicial way in the future.
Having stated this they considered the validity of the declaration under S. 9(1) in that
case. In regard to that the Court said:
“There was no material before the 4th respondent for coming to the conclusion
that the detenu “engages” in transporting smuggled goods. To this extent we have
to accept the contention of the learned counsel for the appellant that there is no
material for coming to the conclusion that the detenu was “engaging” himself in the
unlawful activities.”
14. Evidently in that case the material available only referred to past activities of
1973 and 1974 and therefore on such material alone the Court felt that in 1977 when
the declaration was made the authority concerned could not be satisfied that the
detenu ‘engages’ himself in unlawful activities. The activities of 1973 and 1974 were
not activities constituting the proximate or immediate cause for taking up the case for
detention. Material evidencing past conduct was relied on by the authority to assume
likelihood of prejudicial conduct in the future. The case is dissimilar to the one before
us where the very initiation of action was on the basis of activities which were
detected and it was not as if for taking up the detention some past conduct was relied
on. It was the present context contemporaneous with taking up action that caused
initiation, of proposal for detention, but that action culminated in a detention order
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only some time later. Though in the case before the Supreme Court it could not have
been said that the detenu engages himself in transporting smuggled goods, in the
case before us it could be said that he smuggles, for at the time action was initiated,
which action ultimately culminated in the detention order, reference was made to a
contemporaneous event, an event which prompted such action to be forthwith taken.
Reference here was not to some past conduct of the detenu. Therefore we would say
that this is a case where satisfaction under S. 9(1)(a) first part would be justified and
this case would not be covered by the ratio of the decision in Rekhaben's case, (1979)
2 SCC 566 : AIR 1979 SC 456 : (1979 Cri. LJ 212).
15. Now we come to the another part of the question which we are called uoon to
answer in this reference. We have indicated earlier that the satisfaction in these cases
is on two points, namely that the detenu smuggles and the detenu is likely to smuggle
(so is the case with satisfactions falling under clauses (b) and (c) of S. 9(1)). We have
also indicated, that these are two different satisfactions contemplated in the Act and
any one of them would sustain the declaration. It may be that the materials before the
authority to be so satisfied were such as to justify only one satisfaction, namely that
the detenu “smuggles” or it may be that they were such as to justify the other
satisfaction, namely that he “is likely to smuggle”. The likelihood of a prejudicial
activity such as smuggling in the future is to be predicated upon an assessment of the
nature of the past conduct. If the past conduct is such as would not lead to an
assumption that the person who is responsible for such past prejudicial activity is
likely to indulge in such conduct in the future past conduct by itself may not be
relevant. A man who commits a crime for instance, need not repeat the same crime.
He might have committed the crime for various reasons such as emotional imbalance
of the moment and there would be no justification in all cases, without anything more,
to assume that he is likely to commit such crime again. There are other crimes which a
person may indulge in, not because of any momentary emotional imbalance or such
other reasons, but because of greed, because of the desire to become quick rich.
Operations such as smuggling, hoarding, blackmarketing, illicit dealing in foreign
exchange and other activities of a similar character are generally undertaken for
economic advantage, in that process exploiting the economic order of the country.
Carried on in a reasonably noticeable scale any person could be assumed to do it for
undue economic advantage for himself and in such cases evidence of past activity may
have relevance in the matter of satisfaction as to likelihood of persisting in such
activity in the future. It is difficult to define as a formula the evidence of what
activities of the past would lead to an assumption about likelihood of such activity in
future. That would be a question of fact. It is worthwhile to notice that in the decision
of the Supreme Court to which we have adverted the past acts of engaging in
transport of smuggled goods have been found to be sufficient to satisfy assumption of
prejudicial activity in the future. In the cases before us, apart from any satisfaction on
the
Page: 301
earlier part, namely ‘smuggles’ there is also material to satisfy that the detenu is likely
to smuggle and that satisfaction, as we have said, is independent and may support
even if satisfaction under the earlier part fails. But then it is argued that the
satisfaction of the authority is subjective satisfaction and therefore if it should fail for
the reason that on the materials it cannot be said that the detenu ‘smuggles’ the
declaration would fail as a whole. The petitioners in these cases submit that if the
satisfaction is reached on several grounds and one of the grounds is found to be
unsustainable the satisfaction must, as a whole fail. No doubt, if the subjective
-----------------------------------------------------------------------------------------------------------------------------------------------------------
satisfaction had been reached on several grounds one of which is unsustainable such
satisfaction cannot be sustained with reference to the other grounds. But that is not
the case here. There are two independent satisfactions contemplated under S. 9(1)
and any one of them can sustain the declaration. It is not a case of different grounds
being urged to sustain one and the same satisfaction. This is not a question of
different aspects of a question arising for notice. The two satisfactions being
independent the failure of one satisfaction would not necessarily result in the failure of
the other.
16. It is said that it is not competent for this Court to hold as above for the simple
reason that in Rekhaben's case, (1979) 2 SCC 566 : AIR 1979 SC 456 : (1979 Cri. LJ
212) the Supreme Court, finding that there was no material to satisfy the empowering
officer that the detenu engages in the transport of goods, despite the satisfaction on
the second part of S. 9(1)(c) held the declaration to be bad. We have only to advert to
the observation of the Supreme Court in Shama Rao v. Union Territory, Pondicherry,
AIR 1967 SC 1480 at page 1486 that only the ratio of a decision is binding and not
the conclusion. The Court in that case said:
“It is trite to say that a decision is binding not because of its conclusion but in
regard to its ratio and the principle laid down therein”.
17. The question whether the two satisfactions are independent and whether on the
failure of one satisfaction the other satisfaction will nevertheless support the
declaration under section 9(1) was not in issue in the case before the Supreme Court
and the Supreme Court has not spoken on it.
18. No doubt, the conclusion in that case was that the declaration was not valid,
but that is a conclusion on a consideration of the earlier part of S. 9(1) only. In these
circumstances as we held the view that there are two independent satisfactions
contemplated the mere fact that one of the satisfactions fail need not result in the
failure of the other satisfaction and the declaration would nevertheless be good.
19. What we have said in regard to satisfaction under clause (a) of section 9(1)
would apply with equal force to satisfaction under clauses (b) and (c) of S. 9(1) and
therefore we need not discuss that separately.
20. Having answered the question as above we leave it to the Division Bench to
determine the validity of S. 9(1) declaration in these cases in the light of what we
have said here. The cases will now be sent to the Division Bench for disposal of the
Special Criminal Applications.
21. Order accordingly.
———
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Friday, May 05, 2023

(Gujarat High Court)

Harendra Gangadas Doshi … Petitioner;

The Judgment of the Court was delivered by

Explanation 2. — For the purposes of Explanation 1, “customs airport” and

declaration to be made subsequent to the order of detention. Inasmuch as the

“There is no surer way to misread a document than to read it literally”.

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