POOJA BATRAversusUNION OF INDIA & ORS.

                          (2009] 5 S.C.R. 67


                           POOJA BATRA                              A
                                  v.
                       UNION OF INDIA & ORS.
                  (Criminal Appeal No. 563 of 2009)

                          MARCH 27, 2009
                                                                    B
        [DALVEER BHANDARI AND P. SATHASIVAM, JJ.]

           Conservation of Foreign Exchange and Prevention of
      Smuggling Activities Act, 1974 - s. 3 - Detention order -
      Based on seizure of goods from container covered under Bill   c
      of Entry where detenu mis-declared/smuggled goods as also
     past eight consignments cleared earlier - A/legation that
     detenu likely to indulge in smuggling activities - Challenge
     to - Held: Detention order not sustainable - There was non
      application of mind by Detaining Authority - It relied on D
'~    extraneous and irrelevant materials - 'Inconclusive state of
     investigation' cannot be basis for passing detention order
     against the detenu - Offence alleged were not 'smuggling' -
      There was no violation of Customs Act - Said eight
     consignments were cle.ared by Custom Authorities after E
     proper verification - There were no past activities to constitute
     legitimate basis for detaining him - Thus, detention order is
     quashed- Customs Act, 1962- ss. 111 and 2(39).

         There were allegations against the appellant's
     husband that he was likely to indulge in smuggling             F
     activities in future. The detention order was issued
     against him uls.3 of the Conservation of Foreign
     Exchange and Prevention of Smuggling Activities Act,
     1974. Appellant filed writ petition seeking release of
     detenu from detention and quashing of detention order.         G

..   High Court dismissed the writ petition. Hence the present
     appeal.

         Allowing the appeal, the Court
                                  67                                H
      68         SUPREME COURT REPORTS                    [2009] 5 S.C.R.


  A     HELD: 1.1 . As regard the delay in passing detention
    order, it is satisfied that there is proximity to the alleged
    offence and the detention order. There was no undue
    delay so as to snap the link between the incident and the
    alleged potentiality of the detenu in indulging in
  B smuggling activity. [Para 7] [76-D-E]

          1.2. When1ever a representation is made either by the
     representative of the detenu or by the detenu himself, it
     is incumbent on the part of the named authority to
     consider, dis1pose of the same and pass appropriate
  C orders and communicate it without any unreasonable
     delay. However, it depends upon the facts and
     circumstances of each case. In the instant case, in the
    ·light of the dE~tails furnished in the counter affidavit, it
    .cannot be said that there was delay in disposal of the
  D representation and it is satisfied that there was no delay
     much more than the bare minimum time required to obtain
     th"' comments of the sponsoring authority. [Para 7] [76-
     F-H; 77-A]

  E           1.3. Even for a solitary instance if sufficient materials
         are available and if the Detaining Authority is subjectively
    .· s~tisfied ~~a1t t.h~ detenu is indulging in smuggling
         activities which is detrimental to the interest of the
         Department, the detention order can be clamped.
   F:. ':However, perusal of the ground~rofdetention order dated
    ; '05.12<2007 as weWas• the counter: affidavit sworn to by the
    ..,,Joint Secretary to the Govt. of India .amply demonstrate
      · ,that the Detaining Authority based its conclusion not only
     . ':with. reference1 .fo,BiU of Entry dated 25.04..2007 but also
.· G""'rela~ing to eightcBills of Entl"y/0onsign_mants cle?red
· · . 1·earher. In tho .orf;ler. apart from..narratton. of •Vanous
       '·materials as to .the seizure.of goods the .Detaining
         Authority adv1erted to and relied upon the clearance of
         eight consignments. [Para ~) (78-B-F]
                                       .,   '   I•-   .




  H        1.4. The authorities are free to reopen the case in
            POOJA BATRA v. UNION OF INDIA & ORS.              69


     respect of import of eight consignments/Bill of Entries A
     which is said to have been taken place prior to the Bill of
     Entry dated 25.04.2007. However, even according to the
     department, those consignments were cleared under
     proper orders by the authority concerned. On the date of
;    the passing of the detention order the authorities issued B
     notice calling for certain details in respect of import of
     those eight consignments. The said issue was not
     concluded and no adverse finding against him was
     passed on the date of the passing of the detention order.
     In such circumstances, 'inconclusive state of c
     investigation' cannot legitimately help the authorities to
     pass an order of detention against the detenu on the
     perfunctory and inchoate material relied upon. [Para 9)
     [80-H; 81-A-C]
.1         1.5. After finding that on the date of passing of the D
     detention order investigation in respect of certain other
     alleged violations is still pending to ascertain the
      involvement and role of persons concerned and noting
     that apart from the absence of any positive or concrete
     materials to connect the baggage in question with the E
     petitioner, the nature of stand disclosed in counter
     affidavit filed on behalf of the first respondent does not
     really help the authority to prove that the said material and
     such vitally relevant aspect was either adverted to or
     really considered before passing the order of detention F
     and taking note of the fact that the detention order suffers
     the vice of the total non-application of mind to a relevant
     and vital material touching question of the culpability as
     well as the necessity to order the detention of the
     petitioner, quashed the same and allowed the writ petition. G
     [Para 9) [81-D-F]

          1.6. The courts exercising powers of judicial review
     does not consider the challenge to an order of detention
     as if on an appeal, re-appreciating the materials, yet since
     an order of detention in prison involves the fundamental       H
    70       SUPREME COURT REPORTS            (2009] 5 S.C.R.


A rights of citizens, freedom of movement and pursuit of
  normal life and liberty, no absolute immunity can be
  claimed by the authorities as to the decision arrived and
  it is open to the Courts to see whether there has been
  due and proper application of mind and that all the
8 relevant and vital materials for the purpose have been
  noticed, adverted to and considered. [Para 9] [81-F-H; 82-
    A]                               .
       1.7. Though, the Detaining Authority relied on the
  import of eight consignments, the fact remains that the
C goods were cleared after passing appropriate orders by
  the authorities and any event on the date of passing of
  detention order it was at the stage of notice calling for
  reopening the is~sue hence the same cannot be a valid
  material for pas!;ing an order of detention against the
D detenu. In fact, while determining the subjective
  satisfaction thE! Detaining Authority had said that
  enquiries are pe111ding on all those documents placed on
  record and reliE?d upon by them. Use of incomplete
  material which is either pending or inconclusive cannot
E be a basis for detention order. Therefore, eight
  consignments/Bill of Entries relied upon by Detaining
  Authority beco,me irrelevant and conclusion on
  extraneous material cannot be sustained. [Para 9] [82-A-
  E]
F
       1.8. The Detaining Authority referred to the violation
  in respect of importable goods covered under Bill of
  Entry dated 25.04.2007. In an appropriate case, an
  inference could l1~gitimately be drawn even from a single
  incident of smu119ling that the person may indulge in
G smuggling activities, however, for that purpose
  antecedents and nature of the activities already carried
  out by a person are required to be taken into
  consideration for reaching justifiable satisfaction that the
  person was enga1ged in smuggling and that with a view
H to prevent, it was necessary to detain him. If there is no
           POOJA BATRA v. UNION OF INDIA & ORS.               71


     adequate material for arriving at such a conclusion based      A
     on solitary incident the Court is required and is bound
     to protect him in view of the personal liberty which is
     guaranteed under the Constitution of India. Further
     subjective satisfaction of the authority under the law is
     not absolute and should not be unreasonable. In the            B
      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 detenu would continue
     to indulge in similar prejudicial activity warranting or       c
     necessitating the detention of the person to ensure that
     he does not repeat this activity in future. 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. In the absence
                                                                    0
-\   of any specific and authenticated material to indicate that
     he had the propensity and potentiality to continue to
     indulge in such activities in future, the mere fact that on
     one occasion person smuggled goods into the country
     would not constitute a legitimate basis for detaining him      E
     under the COFEPOSA Act. This can be gathered from the
     past or future activities of the said person. [Para 12) (86-
     C-H; 87-A-B]

           1.9. In the instant case, there were no such past
     activities as could lead to a reasonable conclusion that F
     he possesses the propensity or the potentiality to
     indulge in smuggling activities in future, to prevent which
     it is necessary to detain him. At present there is nothing
     in the order of detention which would indicate that any
     of the said earlier imports was effective in contravention G
     of any of the provisions of the Customs Act, 1962 or that
«    they could have been regarded as having been smuggled
     into the country within the meaning of Section 2(39) of
     the said Act. [Para 12] [87-B-D]
                                                                    H
    72        SUPREME COURT REPORTS              [2009) 5 S.C.R.


A     1.1 O. High Court while considering the Habeas
  Corpus writ petition, directed the Commissioner of
  Customs to lodge a 1report with the police station within
  a period of 15 days along with the complete set of
  relevant documents to enable them to register a case
B under ss. 199, 420, 468 and 471 IPC against the detenu.
  The High Court was not justified in issuing such direction
  and awarding exemplary cost of Rs. 50,000/- payable to
  the sponsoring authority. The impugned order of High
  Court is set aside and consequently the detention order
c is quashed. [Para 13]' (87 -E-G]

         Chowdarapu Raghunandan vs. State of Tamil Nadu and
    Ors. 2002 (3) SCC 754 and Kothari Filaments and Anr. vs.
    Commissioner of Customs (Port), Ko/kata and Ors. JT 2009
    (1) SC 516, referred ti>.
D                                                                  1-
         Case Law Reference:
         2002 (3) sec 754        Referred to.          Para 9
         JT 2009 (1) SC 5'16    Referred to.          Para 9
E
        CRIMINAL APPEUATE JURISDICTION : Criminal Appeal
    No. 563 of 2009.

       From the Judgment & Order dated 5.09.2008 of the High
  Court of Delhi at New Delhi in Writ Petition Criminal No. 782
F of 2008.

        R.S. Sodhi, Begai, Deepak Gandhi Manisha Shrivastava,
    Onkar Shrivastava and A. Samad Garima Prashad for the
    Appellant.
G
       Amreshwari, N. Annapoorani, Anil Katiyar for the
    Respondents.

         The Judgment of the Court was delivered by

H        P. SATHASIVAM, .I. (1) Leave granted.
                 POOJA BATRA v. UNION OF INDIA & ORS.                 73
                          [P. SATHASIVAM, J.]
                (2) This appeal is directed against the judgment dated      A
          05.09.2008 passed by the High Court of Delhi in W.P. (Crl.) No.
          782 of 2008 which was filed by Pooja Batra wife of Deepak
          Kumar @ Deepak Batra detained under the Conservation of
          Foreign Exchange and Prevention of Smuggling Activities Act,
          1974 (hereinafter referred to as "the COFEPOSA Act") praying      B
          for issuance
                     I
                        of a writ of Habeas Corpus to release the detenu
          i.e. her husband from detention. The High Court, by the said
          judgment, dismissed the writ petition with costs of Rs.50,000/
          - on her and directed the department to initiate criminal
          proceedings against the detenu under Sections 199, 420, 468       c
-         and 471 of the Indian Penal Code in exercise of its power
          under Section 482 of the Code of Criminal Procedure.

               (3) The case of the department is as follows:

                (a) The Detaining Authority has issued the detention order D
          dated 05.12.2007 against Shri Deepak Kumar @ Deepak
          Batra, the husband of the appellant herein on the basis of the
          facts and documents put up before them and after satisfying
          with the facts on records that the detenu has propensity and
          potentiality to indulge in smuggling activities in future. The E
          detenu is the mastermind for import of the goods covered under
-         Bill of Entry No. 589144 dated 25.04.2007. The goods covered
          under above mentioned Bill of Entry were not only mis-declared
          in respect of quantity but at~o there were certain goods which
          were concealed in the container. The value of such mis- F
          declared/smuggled goods as calculated comes to
          Rs.87,07,220/- and attracting duty has worked out to Rs. 30 lacs
          approximately. The detenu had indulged in repeated offences
          since 2006 as he was not the actual owner of the Importer
          Exporter Code, (in short "IEC"). The grounds are based on the G
          eight Bills of Entry which were filed by the detenu through his
    ..,   Customs House Agent, (in short "CHA") and also on the basis
          of the statements tendered by Shri Naveen Kumar, an
          employee of CHA. Eight Bills of Entry have been filed by the
          CHA in the name of firm provided by the detenu. The detenu H
    74         SUPREME COURT REPORTS                [2009] 5 S.C.R.


A also provided the plhotocopy of the IEC. Shri Naveen Kumar
  also identified the earlier signatures of the detenu on the
  authorization letter dated 20.08.2007 given by the detenu. Shri
  Naveen Kumar confirmed the relationship between the last
  consignment and the earlier eight consignments imported by
B the detenu. The detenu had fraudulently used IEC No. and PAN
  No. of M/s Om Prakash Deepak Kumar. The actual owner of
  the IEC was not aware of the fact that his IEC is being misused
  by the detenu since :2006 and thorough investigation conducted
  by the Customs Authorities has revealed that in the past also
c eight such Bills of Entry were filed by the same CHA on the
  directions of the d,etenu and the goods were cleared and
  handed over to the detenu. The Detaining Authority has issued
                                                                        -
  the detention order after satisfying with the facts and
  circumstances of the case and material available on record.
D       (b) Ms. Pooja Batra, wife of Deepak Batra has filed Writ
  Petition (Crl.) No. 7:62 of 2008 before the High Court of Delhi
  for quashing the detention order bearing No. F.N.673/06/2007-
  CUS/Vlll dated 5th December, 2007 issued by the Joint
  Secretary (COFEPOSA), Ministry of Finance, Department of
E Revenue under Sec:tion 3 of the COFEPOSA Act. Before the
  High Court, various c:ontentions such as non-application of mind
  on the part of the Detaining Authority, consideration of irrelevant
  material, reliance on extraneous material, non-supply of relevant
  and relied on materials, delay in passing detention order and
F delay in disposal of representation etc. were raised. The High
  Court, by the impugned order dated 05.09.2008, dismissed her
  writ petition. Questioning the same, she filed the present appeal
  by way of special leave petition.

G        (4) Heard Mr. RS. Sodhi, learned senior counsel for the
    appellant and Mrs. K. Amreshwari, learned senior counsel for
    the respondents.

        (5) Mr. R.S. Sodlii, learned senior counsel for the appellant
  after taking us through the grounds of detention order, impugned
H order of the High Court dismissing the writ petition of the
                 POOJA BATRA v. UNION OF INDIA & ORS.                  75
                          [P. SATHASIVAM, J.)

          appellant and all other connected materials contended that         A

                (a)   The detention order is liable to be quashed on the
                      ground of non-application of mind and non-supply
                      of materials relied on and acted upon by the
                      Detaining Authority while passing the detention        B
                      order.

                (b)   The Detaining Authority relied on extraneous and
                      irrelevant materials.

                (c)   The offences alleged are not "smuggling" under the     C
                      Customs Act, hence, there is no question of
                      violation of any Act :including the Customs Act,
                      therefore, detention tinder COFEPOSA Act is not
                      sustainable.

     -)         (d)   Delay in passing the detention order as well as in     D
                      disposal of the representation of the detenu.

               (6) On the other hand, Mrs. K. Amreshwari, learned senior
          counsel for the Union of India and their officials, by taking us
          through the grounds of detention and the counter affidavit filed   E

..        by the Department, submitted that the detention order was
          passed on the basis of the relevant materials and after
          subjective satisfaction by the Detaining Authority. She further
          submitted that there is no illegality or violation of any of the
          statutory provision including that of Article 22(5) of the         F
 '   >    Constitution of India and prayed for dismissal of the appeal.

               (7) For convenience, first let us consider whether there fs
          any delay in passing the detention order and delay in disposal
          of the representation. (a) Regarding delay in passing detention    G
          order, the alleged violation relates to Bill of Entry No. 589144
          dated 25.04.2007, the detention order was passed on
          05.12.2007. After the seizure of the goods from the container
          covered under Bill of Entry No. 589144 dated 25.04.2007,
          nobody appeared before the authorities to get the goods
                                                                             H
    76        SUPREME COURT REPORTS                [2009) 5 S.C.R.


A cleared till 23.07.2007. The detenu himself appeared before
  Customs Authorities for the first time on 03.08.2007. His
  statement under Section 108 of the Customs Act was recorded
  and he was arrested on 04.08.2007. It was explained that in
  the light of the fact that earlier also similar eight consignments
B were got cleared by the detenu, the investigation relied on the
  statement of witness as if he is the actual owner of the
  proprietary concern, the statement of the clearing agent and his
  nominee were recorded and it was only on 29.10.2007 the
  sponsoring authority recommended to the COFEPOSA
c Department for considEiration of the matter to pass detention
  order against the detenu. All those actions, various orders/
  proceedings were mentioned in seriatim both in the grounds
  of detention, and in the counter affidavit filed by the very same
  authority. We have carefully gone through the same and find no
D merit in the contention. On the other hand, we are satisfied that
  there is proximity to the alleged offence and the detention order.
  In our view, there was no undue delay so as to snap the link
  between the incident and the alleged potentiality of the detenu
  in indulging in smuggling activity. Hence, we reject the said
  contention.
E
        (b) Coming to the contention relating to delay in disposal
  of the representation, it is true that whenever a representation
                                                                       ...
  is made either by the representative of the detenu or by the
  detenu himself, it is incumbent on the part of the named authority
F to consider, dispose o1f the same and pass appropriate orders
  and communicate it without any unreasonable delay. However,
  it depends upon the facts and circumstances of each case. In
  the instant case, the dE~tenu has taken the plea that he made a
  representation to tho Secretary, Government of India as
G suggested in the detontion order on 13.06.2008 which was
  received by the Suptd. of Jail on 16.06.2008, and on the very
  same day it was forwarded to COFEPOSA Department. It is
  the contention of the counsel for the appellant that though the
  representation was sent to the COFEPOSA Department on
H 16.06.2008 itself and the fact that the Jail and COFEPOSA
                  POOJA BATRA v. UNION OF INDIA & ORS,                   77
                           [P. SATHASIVAM, J.]
           Department both located in Delhi yet it took time for more than     A
...        ten days to respond in obtaining the comments from the
           sponsoring authority and get the same disposed of which is
           fatal and accordingly the detention order deserves to be
           quashed. As against the said detention, in the counter affidavit,
           it is clarified tha't the representation was received by them on    B
            20.06.2008. The specific assertion made in the counter
           affidavit has not been refuted by the detenu in his rejoinder. On
           the same day, i.e., 20.06.2008 itself, it was sent to the
           sponsoring authority, i.e. Customs Authority, who sent their
           comments on 27.6.2008. The comments on the said                     c
           representation were sent to the COFEPOSA department on
           27.06.2008, 28/29.06.2008 were holidays being Saturday and
           Sunday and on the next day i.e. 30.06.2008, the representation
           of the detenu was considered by the competent officer of the
,.         COFEPOSA department and the same was rejected. The
                                                                               D
      -\   rejection order was communicated to the detenu on 01.07.2008
           and received by him on 02.07 .2008. In the light of the details
           furnished in the counter affidavit, we do not find any substance
           in the contention and satisfy that there was any delay much
           more than the bare minimum time required to obtain the
           comments of the sponsoring authority accordingly, we reject the     E
           said contention also.

                 (8) Let us consider the main contention, namely, non-
           application of mind on the part of the Detaining Authority and
      ~\
            consideration of extraneous and irrelevant materials. This issue F
           covers all the rest of the contentions raised by the learned
           senior counsel for the appellant. Mr. R.S. Sodhi, learned senior
           counsel, submitted that though the detention order was passed
           on 05. 12.2007 after seizure of the goods contained in Bill of
           Entry No. 589144 dated 25.04.2007, the Detaining Authority G
           relying on the eight Bills of Entry/Consignments which related
           to earlier years and on the assur:nption that the detenu misused
           CHA and IEC passed the detention order. According to him,
           those eight consignments were cleared by the Customs
           authorities after proper verification, hence the same cannot be H
    78         SUPREME COURT REPORTS                 (2009] 5 S.C.R.


A a subject matter for detaining the detenu under COFEPOSA
  Act. No doubt, Mrs. K. Amreshwari, learned senior counsel for
  the Department contended that except the goods seized from
  the container covered under Bill of Entry No. 589144 dated
  25.04.2007, the authorities have not basad reliance on any
B other instance. She also contended that even solitary instance
  is sufficient to clamp the detention order if the Detaining
  Authority is satisfied with the materials placed before it. There
  is no dispute that even for a solitary instance if sufficient
  materials are available and if the Detaining Authority is
c subjectively satisfied that the detenu is indulging in smuggling
  activities which is dE~trimental to the interest of the Department,
  the detention order can be clamped. However, perusal of the
  grounds of detention order dated 05.12.2007 as well as the
  counter affidavit sworn to by the Joint Secretary to the Govt. of
  India, Ministry of Finance, Department of Revenue dated
D 12.12.2008 amply dlemonstrate that the Detaining Authority has         '-
  based its conclusion not only with reference to Bill of Entry No.
  589144 dated 25.1)4.2007 but also relating to eight Bills of
  Entry/Consignments cleared earlier. The detention order,
  Annexure P-2, is available at page 97 of the paper book. In the
E order apart from narration of various materials as to the seizure
  of goods dated 25.04.2007 the Detaining Authority has
  adverted to andl relied upon the clearance of eight
  consignments. In paragraph 18 of the detention order, there is
  a specific reference to those facts which reads as under:
F
       "M/s P.P. Datta, Wg. Cdr. (Retd.), the CHA vide their letter
       dated 9.9.2007 submitted photocopies of bills of entry No.
       530534 dated 28.8.2006 No. 538152 dated 25.9.2006
       No. 543052 dated 16.10.2006, No. 548191 dated
G      7.11.2006, No. 554135 dated 1.12.2006, No. 558417
       dated 20.12.2006, No. 559159 dated 23.12.2006 and No.
       562725 datedl 9.1.2007 (total 8 (eight) bills of entry). It was
       observed that in all the said bills of entry the importers were
       M/s Om Prakash Deepak Kumar and the items imported
H      were   Hinges, Scrubber, Telescopic Channels from M/s
                 POOJA BATRA v. UNION OF INDIA & ORS.                  79
                          [P. SATHASIVAM, J.)
               Mount Overseas (HK) Ltd. and M/s PIT Industries (Hong A
               Kong)."

          The same particulars were reiterated in paragraph 22. In
          paragraph 23, it is stated that enquiries are being conducted
          at overseas to find out the description of goods declared at port
                                                                             B
          of export, details of payment and the value declared at port of
          export in respect to the goods already stands cleared under
          the aforesaid eight Bills of Entry. In paragraph 26, Detaining
          Authority has asserted that the detention order was passed
          "after taking into consideration the foregoing facts and materials
-         on record" and concluded that "satisfied that you ought to be
                                                                             c
          detained under the COFEPOSA Act, 1974 with a view to
          preventing you from smuggling goods in future." In paragraph
          29, the Detaining Authority once again reiterated that the
          clearance of goods on the basis of eight Bills of Entry, and
    ~I    finally in paragraph 32, the Detaining Authority has concluded D
\
          thus:
               "While passing the detention order under the provisions of
               Conservation of Foreign Exchange and Prevention of
               Smuggling Activities Act, 1974, I have referred to and E
               relied upon the documents mentioned in the enclosed
               list." (Emphasis supplied)

          "The enclosed list" mentioned in paragraph 32 is available as
          Annexure P-4 at page 143 of the paper book. S.No. 33 of
     ,)   Annexure P-4 specifically refers "Request for overseas inquiry F
          in respect of eight consignments claimed to be cleared by M/
          s Om Prakash Deepak Kumar". As rightly contended,
          paragraph 32, makes it clear that the Detaining Authority had
          not only referred to eight Bills of Entry but also relied upon those
          documents in respect of eight consignments. It is not in dispute G
          that those eight Bills of Entry/consignments were cleared by M/
    .t'
          s Om Prakash Deepak Kumar after verification and on the
          orders of the Department. Though, learned senior counsel for
          the Department submitted that out of eight consignments only
          five of the 10% of the checking of goods alone were verified H
    80         SUPREME COURT REPORTS                 [2009) 5 S.C.R.


A by the Department, the fact remains that firstly nothing
   prevented the concerned officer from verifying the entire
   consignment as it was done in the case of Bill of Entry No.
   589144 dated 25.04.2007 and secondly there was a valid
   order for clearance by the officer concerned. No doubt, the
B department is free to reopen the issue but the fact remains that
   on the date of passing the detention order it was only at the
   stage of notice and no final decision/conclusion was taken for
   violation of thE~ provisions of the Customs Act. In such
   circumstances, reliance on those materials which is evident
c from paragraph 32 read with S.No. 33 of Annexure P-4 clearly
   demonstrate that Detaining Authority has considered irrelevant
   materials while formulating the grounds of detention. As pointed
   out above though the counsel for the respondents submitted that
   the Detaining Authority has considered only in respect of Bill
D of Entry No. 589144 dated 25.04.2007 for passing detention
  order, it is clear that apart from the reference in the detention      ,_
  order itself about the eight consignments, paragraph 5(1) of the
  counter affidavit clearly shows that the Detaining Authority had
   relied on eight Bills of Entry while arriving subjective
  satisfaction. Though, learned senior counsel for the
E respondents, in the course of arguments, submitted that
  whatever said in the counter affidavit may be eschewed, in view
  of the fact that the very same person who signed the detention
  order has also signed the counter affidavit before this Court,
  the contents therein cannot be lightly ignored as claimed. On
F the other hand, the details mentioned in the detention order as
  well as in the counter affidavit clearly demonstrate that in
  addition to the Bill of Entry dated 25.04.2007 the Detaining
  Authority heavily relied on eight Bill of Entries/consignments and
  satisfying that. he will continue to indulge in smuggling activities
G which will be detrimental to the department passed the
  impugned detention order.
                                                                         .... '
      (9) We have already pointed out that the authorities are
  free to reopen the case in respect of import of eight
H consignments/Bill of Entries which is said to have been taken
                  POOJA BATRA v. UNION OF INDIA & ORS.                    81
                           [P. SATHASIVAM, J.]
           place prior to the Bill of Entry dated 25.04.2007. However, even A
           according to the department, those consignments were cleared
           under proper orders by the authority concerned. It is also not
           in dispute that on the date of the passing of the detention order
           the authc:>rities have issued notice calling for certain details in
           respect of import of those eight consignments. In other words, B
           the said issue has not concluded and no adverse finding
           against him is passed on the date of the passing of the
           detention order. In such circumstances, we are of the view that
           'inconclusive state of investigation' cannot legitimately help the
           authorities to pass an order of detention against the detenu on c
           the perfunctory and inchoate material relied upon. It is useful
           to refer a decision of this Court in Chowdarapu Raghunandan
           vs. State of Tamil Nadu and others, 2002 (3) SCC 754. After
           finding that on the date of passing of the detention order
  ~
           investigation in respect of certain other alleged violations is still D
           pending to ascertain the involvement and role of persons
           concerned and noting that apart from the absence of any
           positive or concrete materials to connect the baggage in
           question with the petitioner therein, the nature of stand disclosed
           in counter affidavit filed on behalf of the first respondent does
                                                                                 E
          not really help the authority to prove that the said material and
          such vitally relevant aspect was either adverted to or really
          considered before passing the order of detention and taking
          note of the fact that the detention order suffers the vice of the
      )
          total non-application of mind to a relevant and vital material
  /
          touching question of the culpability as well as the necessity to F
          order the detention of the petitioner, quashed the same and
          allowed the writ petition. It is settled law that Courts exercising
          powers of judicial review do not consider the challenge to an
          order of detention as if on an appeal, re-appreciating the
          materials, yet since an order of detention in prison involves the G
.-<-'     fundamental rights of citizens, freedom of movement and pursuit
          of normal life and liberty, no absolute immunity can be claimed
          by the authorities as to the decision arrived and it is open to
          the Courts to see whether there has been due and proper
          application of mind and that all the relevant and vital materials H
    82         SUPREME COURT REPORTS                 (2009] 5 S.C.R.


A for the purpose have been noticed, adverted to and considered.
  If we consider the case' on hand on the above principles, though,
  the Detaining Authority has relied on the import of eight
  consignments, the fact remains that the goods were cleared
  after passing appropriate orders by the authorities and any
B event on the date of passing of detention order it was at the
  stage of notice callin~1 for reopening the issue hence the same
  cannot be a valid material for passing an order of detention
  against the detenu. In fact, while determining the subjective
  satisfaction the Detaining Authority had said that enquiries are
c pending on all those1 documents placed on record and relied
  upon by them. Use' of incomplete material which is either
  pending or inconclusive cannot be a basis for detention order.
  In the recent jud gment Kothari Filaments & Anr. vs.
                          1



  Commissioner of Customs (Port), Kolkata and Ors. JT 2009
D (1) SC 516, this Couirt has held that if any enquiry is inconclusive
  pending consideraition the same cannot be the basis for
  passing an order against the person concerned. Therefore, the
  eight consignments/Bill of Entries relied upon by the Detaining
  Authority become irrelevant and conclusion on extraneous
  material cannot be sustained.
E
        (10) Learned senior counsel for the appellant has also
  pointed out that all the materials which were relied on and
  actually considered in the grounds of detention have not been
  supplied to detenu. We have already pointed out that both in
F the grounds of de,tention as well as counter affidavit filed in
  support of the said order the Detaining Authority has reiterated
  all those documents including the import of eight consignments
  were relied on in more than one place while passing the order
  of detention. In fac;t, the Detaining Authority has adverted to the
G statement of Deepak Kumar and mentioned that he had seen
  his signature in his statement recorded on 03.08.2007 as well
                      1




  as on letter dated 02.08.2007 and agreed that signature of
  Deepak Kumar on the declaration and authorization letter do
  not tally with his signature on the statement dated 03.08.2007
H and letter dated 02.08.2007 and concluded that both the
           POOJA BATRA v. UNION OF INDIA & ORS.                     83
                    [P. SATHASIVAM, J.]

    formats do not tally.                                                 A
        (11) It is also relevant to refer the definition of "smuggling"
    in Section 2(39) of the Customs Act, 1962 which reads as
    under:

         "smuggling", in relation to any goods, means any act or          B
         omission which will render such goods liable to
         confiscation under section 111 or section 113;"

    Section 111 of the Customs Act, 1962 deals with confiscation
    of improperly imported goods which reads as thus:-                    c
        "111. Confiscation of improperly imported goods, etc.-
        The following goods brought from a place outside India
        shall be liable to confiscation:-

~        (a) any goods imported by sea or air which are unloaded          D
         or attempted to be unloaded at any place other than a
         customs port or customs airport appointed under clause
         (a) of section 7 for the unloading of such goods;

        (b) any goods imported by land or inland water through            E
        any route other than a route specified in a notification
        issued under clause (c) of section 7 for the import of such
        goods;

        (c) any dutiable or prohibited goods brought into any bay,
        gulf, creek or tidal river for the purpose of being landed at     F
        a place other than a customs port;

        (d) any goods which are imported or attempted to be
        imported or are brought within the Indian customs waters
        for the purpose of being imported, contrary to any                G
        prohibition imposed by or under this Act or any other law
        for the time being in force;

        (e) any dutiable or prohibited goods found concealed in
        any manner in any conveyance;
                                                                          H
    84        SUPREME COUHT REPORTS                 [2009] 5 S.C.R.


A        (f) any dutiable or prohibited goods required to be
         mentioned under the regulations in an import manifest or
         import report which are not so mentioned;

         (g) any dutiable or prohibited goods which are unloaded
         form a conveyance in contravention of the provisions of
B
         section 32, other than goods inadvertently unloaded but
         included in the record kept under sub-section (2) of section
         45;

         (h) any dutiable or prohibited goods unloaded or attempted
c        to be unloaded in contravention of the provisions of section
         33 or section 34;

         (i) any dutiable or prohibited goods found concealed in any
         manner in any packaf1e either before or after the unloading
D        thereof;

         Q) any dutiable or prohibited goods removed or attempted
         to be removed from a customs area or a warehouse without
         the permission of the proper officer or contrary to the terms
         of such permission;
E
         (k) any dutiable or prohibited goods imported by land in
         respect of which thH order permitting clearance of the
         goods required to be produced under section 109 is not
         produced or which do not correspond in any material
F        particular with the specification contained therein;

         (I) any C:utiable or prohibited goods which are not included
         or are in excess of those included in the entry made under
         this Act, or in the case of baggage in the declaration made
         under section 77;
G
         (m) any goods which do not correspond in respect of value
         or in any other particular with the entry made under this Act
         or in the case of baggage with the declaration made under
         section 77 in respect thereof or in the case of goods under
H
               POOJA BATRA v. UNION OF INDIA & ORS.                   85
                        [P. SATHASIVAM, J.]

             transshipment, with the declaration for transshipment          A
             referred to in the proviso to sub-section (1) of section 54;

             (n) any dutiable or prohibited goods transited with or
             without transshipment or attempted to be so transited in
             contravention of the provisions of Chapter VI 11;
                                                                            B
             (o) any goods exempted, subject to any condition, from duty
             or any prohibition in respect of the import thereof under
             this Act or any other law for the time being in force, in
             respect of which the condition is not observed unless the
             non-observance of the condition was sanctioned by the          c
             proper officer;

             (p) any notified goods in relation to which any provisions
             of Chapter IVA or of any rule made under this Act for
             carrying out the purposes of that Chapter have been
                                                                            D
             contravened."

         This Section refers to goods brought from a place outside India
         shall be liable to confiscation. Unless there is proper enquiry
         and arrive at a conclusion in terms of Section 111 or Section
         113 it cannot be concluded that smuggling had taken place.         E
        There is nothing in the order of detention which would indicate
        that any of the said earlier imports were effected in
        contravention of any of the provisions of the Customs act, 1962,
        or that they could have been regarded as having been
    )
        smuggled into the country within the meaning of Section 2(39)       F
)
        of the said Act. Except notice for reopening the order clearing
        eight consignments prior to Bills of Entry dated 25.04.2007,
        there is no adjudication and final order by the authority
        concerned. In other words, the reference to alleged violation of
        the Customs Act in respect of import of eight consignments          G
        which was only at the pre-mature stage and considering
        extraneous materials, which are inconclusive cannot be a valid
        ground for clamping detention under COFEPOSA Act.
        Inasmuch as, the Detaining Authority has extensively relied
        upon the allegations that the detenu was involved in the import     H
   86         SUPREME COURT REPORTS                [2009] 5 S.C.R.


A of eight consignment8 through Mis P.P. Dutta, reliance on those
  irrelevant material vitiates the detention order. This is more so
  as the said alleged Eiarlier imports, apparently constitute the
  main basis for the opinion formed by the Detaining Authority
  that the detenu had the propensity and potentiality to indulge
8 in smuggling activitie:s in future.
        (12) As already discussed, even based on one incident
  the Detaining Authority is free to take appropriate action
  including detaining him under COFEPOSA Act. The Detaining
  Authority has referred to the violation in respect of importable
C goods covered under Bill of Entry No. 589144 dated
  25.04.2007. In an appropriate case, an inference could
  legitimately be drawn ,even from a single incident of smuggling
  that the person may indulge in smuggling activities, however,
  for that purpose antecedents and nature of the activities already
D carried out by a person are required to be taken into
  consideration for reaching justifiable satisfaction that the person
  was engaged in smuggling and that with a view to prevent, it
  was necessary to detain him. If there is no adequate material
  for arriving at such a conclusion based on solitary incident the
E Court is required and is bound to protect him in view of the
  personal liberty which is guaranteed under the Constitution of
  India. Further subjective satisfaction of the authority under the
  law is not absolute and should not be unreasonable. In the
  matter of preventive dEitention, what is required to be seen is
F that it could reasonably be said to indicate any organized act
  or manifestation of organized activity or give room for an
  inference that the detenu 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
G 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, highe!st standards of proof are required to
  exist. In the absence of any specific and authenticated material
  to indicate that he had the propensity and potentiality to continue
H to indulge in such activities in future, the mere fact that on one
-                  POOJA BATRA v. UNION OF INDIA & ORS.
                            [P. SATHASIVAM, J.]
                                                                          87


            occasion person smuggled goods into the country would not A
            constitute a legitimate basis for detaining him under the
            COFEPOSA Act. This can be gathered from the past or future
            activities of the said person. In the case on hand, we have
            already pointed out that there were no such past activities as
            could lead to a reasonable conclusion that he possesses the 8
            propensity or the potentiality to indulge in smuggling activities
            in future, to prevent which it is necessary to detain him. At
            present there is nothing in the order of detention which would
            indicate that any of the said earlier imports was effective in
            contravention of any of the provisions of the Customs Act, 1962 c
            or that they could have been regarded as having been
            smuggled into the country within the meaning of Section 2(39)
            of the said Act. In such a case, as held by this Court in
            Chowdarapu Raghunandan (supra), the invocation of the
            COFEPOSA Act against such a person would not be justified. D

                 (13) Apart from these aspects, it is unfortunate that the High
             Court while considering the Habeas Corpus writ petition filed
             under Article 226 of the Constitution of India by the wife of the
             detenu challenging the order of detention on various grounds,
             on going through the materials of the department as if as an E
            Appellate Court relying on Section 482 Code of Criminal
             Procedure directed the Commissioner of Customs, ICD,
            Tughlakabad, to lodge a report with the police station,
            Tughlakabad within a period of 15 days along with the complete
        )
            set of relevant documents to enable them to register a case F
    f
            u.nder Sections 199, 420, 468 and 471 of the Indian Penal Code
            against the detenu. The said direction is not warranted
            considering the fact that issue before the High Court was about
            the validity of the detention order and the curtailment of the
            personal liberty of the detenu and nothing more. We are of the G
            view that the High court is not justified in issuing such direction
            and awarding exemplary cost of Rs. 50,000/- payable to the
            sponsoring authority.

                (14) In the light of the above discussion and for the reasons
                                                                                H

:
    88         SUPREME COURT REPORTS                 [2009] 5 S.C.R.
                                                                          -
A   stated above the impugned order of the High Court dated
    05.09.2008 in W.P. (Crl.) 782/2008 is set aside, consequently
    the detention order bearing F.N. No. 673/06/07-CUSNlll dated
    05.12.2007 issued by Joint Secretary (COFEPOSA), Ministry
    of Finance, Department of Revenue is quashed. The detenu-
8   husband of the appellant viz., Deepak Kumar @ Deepak Batra
    is ordered to set at liberty forthwith if he is not required in any
    other case. Appeal is allowed.

    N.J.                                            Appeal allowed.