# Mahesh Rathi v. State of U.P. through Home Secretary and others

- **Citation:** (2001) 2 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-09-04
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-rathi-v-state-of-u-p-through-home-secretary-and-others-39739
- **Pages:** 4

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. This petition under Article 226 of
the Constitution has been filed praying
that a writ of mandamus be issued
commanding the respondents not to arrest
and detain the petitioner under the
provisions of section 3 of Conservation of
Foreign Exchange and Prevention of
Smuggling
Activities
Act,
1974
(hereinafter referred to as COFEPOSA)
and to restrain the respondents from
giving effect to the detention order passed
against the petitioner.

2. The authorities of Customs
Department conducted search of premises
bearing no. C.K. 13/48, Pashu Pateshwar,
Varanasi on 4.9.1999 and found twelve
bags of silk yarn of Chinese origin stored
therein. On opening of the bag, a label
was found which contained the writing -
"Blosoms, white Steam Filature China
National Silk Import & Export Corp.
Made in China." The wife of the owner
landlord of the premises informed the
authorities that the same had been let out
to a tenant. Thereafter, the owner of the
premises G.N. Mishra was summoned to
Customs Office, who informed in writing
and also gave an affidavit that the
premises had been let out to the petitioner
Mahesh Rathi on a rental of Rs. 1000/-
per month and he carries on business of
Banarsi Sarees and whatever goods were
found in the premises belonged to him.
The petitioner Mahesh Rathi was also
summoned in the office of Customs
Department, where in, his statement was
recorded on 4.10.1999. He admitted that
he was carrying on business of Banarsi
Sarees and his godown was situate in
premises no. 13/53, Pashu Pateshwar in
Varanasi city. He also admitted that
Rajesh Singh used to bring Chinese Silk
yarn from Bangladesh and Nepal and used
to give him for the purpose of sale.
Subsequently, the petitioner gave an
application that his statement had been
recorded by the Customs authorities under
2All] Mahesh Rathi V. State of U.P. through Home Secretary and others

threat and coercion and it was not his
voluntary statement.

3. The petitioner was taken into
custody and was produced before the
Magistrate on 5.10.1999. He was granted
bail on 30.10.1999. It is averred in
paragraph 18 of the writ petition that after
a lapse of more than one year, an order
under section 3 (1) of COFEPOSA has
been passed against him and he came to
know about the said order when some
officers of Custom Department and police
personnel came to his house to arrest him
in the first week of January 2001. It is in
these circumstances that the petitioner has
filed the present writ petition under
Article 226 of the Constitution and the
principal prayer is that the detention order
passed against the petitioner may be
quashed and he should not be arrested or
detained in pursuance of the aforesaid
order.

4. The copy of the detention order
passed against the petitioner has not been
filed along with the writ petition. It is also
noteworthy that the detention order,
which the petitioner alleges to have been
passed against him, has not been given
effect to and he has not been taken into
custody so far. The detention order has
neither been executed nor the grounds of
detention have been served upon him. The
extent and scope of power of interference
while exercising jurisdiction under Article
226 of the Constitution at pre-execution
stage has been considered threadbare by
the
Supreme
Court
in
Additional
Secretary to the Government of India
Versus Smt. Alka Subhash Gadia, 1991
(1) JT 549 and after dealing with the
matter exhaustively, the court ruled as
follows:

"..... The courts have the necessary
power and they have used it in proper
cases as has been pointed out above,
although such cases have been few and
the grounds on which the courts have
interfered with them at the pre-execution
stage or necessarily very limited in scope
and number, viz. where the courts are
prima facie satisfied (i) that the impugned
order is not passed under the act under
which it is purported to have been passed,
(ii) that it sought to be executed against a
wrong person, (iii) that it is passed for a
wrong purpose, (iv) that it is passed on
vague, extraneous and irrelevant grounds,
or (v) that the authority which passed it
had no authority to do so. The refusal by
the courts to use their extraordinary
powers of judicial review to interfere with
the detention order prior to their execution
on any other grounds does not amount to
the abandonment of the said power or to
their denial to the proposed detenu, but
prevents their abuse and the perversion of
the law in question."

5.

This
decision
has
been
subsequently followed in N.K. Bapna
Versus Union of India, 1992 (4) JT 49,
State of Tamil Nadu Versus P.K.
Shamsuddin, 1992 (4) JT 179 and
Subhash Muljimal Gandhi Versus L.
Himingllana, 1994 (6) SCC 14. Thus the
power
under
Article
226
of
the
Constitution can be exercised at the preexecution stage on very limited grounds
enumerated by the Apex Court and not on
all grounds, which are available after the
detention order has been served and the
person has been taken into custody.

6. It is not the case of the Petitioner
that the detention order has not been
passed under COFEPOSA or that the
authority of the State Government or the
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
officer of the State Government who
passed the order had no authority to do so
or that the impugned detention order had
not been passed against him and it is
sought to be executed against a wrong
person. It is also not the case of the
petitioner that the impugned order is
based on vague, extraneous and irrelevant
grounds. Sri Atul Mehra, learned counsel
for the petitioner has submitted that the
passing of the detention order after a
period of one year makes the order
punitive rather than preventive in nature
and that it is passed for a wrong purpose.

7. The main question which requires
consideration is that if there is delay in
passing a detention order, can it be held
that the order has been passed for a wrong
purpose. The dictionary meaning of the
word "purpose" is - a result, which it is
desired to obtain and is kept in mind in
performing an action. Section 3 (1) of
COFEPOSA provides that the Central
Government or the State Government or
any officer of the aforesaid governments
specially empowered may, if satisfied,
with respect to any person with a view to
preventing him from smuggling goods or
abetting the smuggling of goods or
concealing or keeping smuggled goods or
dealing in smuggled goods make an order
directing that such person be detained. It
has been held in the case of N.K. Bapna
(supra) that as "smuggling" has been
defined in the Act, the said definition has
to be taken into consideration for the
purpose of the Act and not the dictionary
meaning of the word. Section 2 (e) of the
Act lays down that "smuggling" has the
same meaning as in section 2 (39) of the
Customs
Act,
1962
and
all
its
grammatical
variations
and
cognate
expression shall be construed accordingly.
Section 2 (39) defines "smuggling" in the
following words;

"Smuggling", in relation to any
goods, means any act or omission which
will
render
such
goods
liable
to
confiscation under section III or section
113."

8. There are various clauses namely,
clauses (a) to (p) in section 111 which
make the goods brought from a place
outside India liable to confiscation and
that
would,
therefore
amount
to
'smuggling'
within
the
meaning
of
section 2 (39) read with section 111 of the
Customs Act. If foreign goods are brought
from any place outside India to any place
inside India without payment of requisite
duty, it will amount to smuggling of
goods as mentioned in sub-clause (i) and
the goods so brought would be smuggled
goods within the meaning of sub-clause
(iv) of subsection (1) of section 3 of the
Act. The State Government was satisfied
that foreign goods had been brought to
Indian from Nepal or Bangladesh without
payment of duty and the same was sold to
the petitioner. The case of the petitioner
was thus covered by sub-clause (iv) of
sub-section (1) of section 3 of the Act.
Since
the
material
with
the
State
Government showed that the petitioner
was involved in transporting, concealing
or dealing in smuggled goods, it could
very well pass a detention order under
section 3 (1) of the Act. The object with
which the order was passed was to
prevent the petitioner from indulging in
the aforesaid activities. The preamble of
COFEPOSA is - "an Act to provide for
preventive detention in certain cases for
the
purposes
of
conservation
and
augmentation of foreign exchange and
prevention of smuggling activities and for
2All] Sri N.P. Agarwal V. The Prescribed Authority and another

matters connected therewith." There can
be no doubt that the State Government
having been satisfied that the petitioner
was engaged in transporting, concealing,
keeping or dealing in smuggled goods and
in order to achieve the object of the Act
namely,
prevention
of
smuggling
activities, passed the impugned detention
order. Thus, it cannot be held that the
order has been passed for a wrong
purpose.

9. The contention that if a long
period has elapsed between the offending
activity and passing of a detention order
the same would be for a wrong purpose is,
in our opinion, wholly fallacious. It has
been held in Sheikh Serajul Versus State
of West Bengal, 1975 Vol. II SCC 78
and Ravindra Kumar Versus West
Bengal, AIR 1975 SC 1408 that where
there is delay in passing the detention
order it is the subjective satisfaction of the
detaining authority which gets vitiated
rendering the detention order invalid. The
delay cannot lead to the inference that the
detention order has been passed for a
wrong purpose.

10. It is important to emphasise that
there is no inflexible rule that whenever
there is a delay in passing a detention
order it must necessarily be held that the
satisfaction of the detaining authority was
vitiated rendering the detention order
invalid. It will depend upon the facts and
circumstances of each case and if there is
satisfactory explanation for passing the
order, the same cannot be held to be
illegal or invalid. This view has been
taken in Rajendra Kumar Natwar Lal
Shah Versus State of Gujrat, AIR 1988
SC 1255, Yogendra Morari Versus
State of U.P., AIR 1988 SC 1935 and K.
Aruna Kumari Versus Government of
Andhra Pradesh, AIR 1988 SC 227. A
conspectus of the authorities cited above
would show that if there is a delay in
passing the detention order and the same
has not been satisfactory explained, it will
vitiate the subjective satisfaction of the
detaining
authority
rendering
the
detention order invalid but the delay alone
cannot lead to the inference that the order
has been passed for a wrong purpose. The
submission that the impugned detention
order has been passed for a wrong
purpose being based solely upon the
alleged delay in passing thereof, has thus
no merit and is liable to be rejected.

11. Having given our careful
consideration to the submission made by
the learned counsel for the petitioner, we
are clearly of the opinion that the
petitioner has not been able to make out
any
ground,
which
may
justify
interference with the detention order at
the pre-execution stage.

12. The writ petition lacks merit and
is accordingly dismissed.
Petition Dismissed.

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