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Subhash Muljimal Gandhi Vs. L. Himingliana [1994] INSC 437 (26 August 1994)

Mukherjee M.K. (J) Mukherjee M.K. (J) Sawant, P.B.

CITATION: 1994 SCC (6) 14 JT 1994 (5) 358 1994 SCALE (3)856

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by M.K. MUKHERJEE, J.- Special leave granted.

2. This appeal is directed against the order dated 1-10- 1990 passed by the Bombay High Court in Writ Petition (Crl.) No. 1083 of 1990.

3. On 23-8-1990, the Secretary (Preventive Detention) to the Government of Maharashtra, Respondent 1 herein, made an order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA' for short) to detain the appellant with a view to preventing him from smuggling goods. On getting information about the making of the order the appellant filed a writ petition + From the Judgment and Order dated 1-10-1990 of the Bombay High Court in W.P. Crl. No.1083 of 1990 15 in the Bombay High Court challenging the same and having failed there moved this Court by filing the special leave petition. To the petition the appellant has annexed, amongst other documents, purported copies of the order of detention and the grounds on which it is based though it is not quite clear how he came by them. The respondents, however, contend that the appellant obtained those copies clandestinely for they were to be served upon him only on detention. However, this aspect of the matter need not detain us as the respondents have not assailed the authenticity of those copies.

4. Before we proceed to consider the contentions raised by Mr Jethmalani, the learned Senior Counsel appearing in support of the appeal, we may profitably refer to the factual allegations made in the grounds of detention so far as they are relevant for our present purposes. It is first stated therein that in the early hours of 22-5-1990 when Cathay Pacific Flight No. CX 750 arrived at the Sahar Airport, Bombay, some Customs Officers accosted the appellant, who had come from Dubai, inside the aircraft in presence of two panchas and asked whether he was carrying gold. Initially he answered the question in the negative but when the Officers touched his person and felt some hard substance below his waist belt he admitted having concealed gold bars tied around his waist. He was then taken down to the Customs Baggage Examination Hall and from there to the SDO's room in the Hall. There, on search, three cotton belts tied around his body were recovered. Each of the three belts was found to contain 60 gold bars, each weighing 10 totals, and bearing foreign markings.

5. The grounds of detention then detail the statement the appellant made to the Customs Officers on that day wherefrom it appears that he not only admitted that he brought the seized 180 gold bars from Dubai but earlier also on 15-5- 1990 he had illegally imported 120 gold bars from Dubai. In the statement he also disclosed the names of the persons who were involved in the transactions. Another statement made by the appellant on 24-5-1990 regarding his modus operandi of smuggling the gold has next been incorporated in the grounds of detention. The grounds of detention then recite that on 24-5-1990 the appellant was arrested and on 25-5- 1990, when he was produced before the Additional Chief Metropolitan Magistrate, Bombay, he made a statement. The statement so made has also been reproduced in the grounds of detention.

6. The appellant's version of the incident as disclosed in that statement is that after he was brought down from the aircraft, he was allowed to take out his baggage and then leave the airport. While he was waiting outside he was brought back and taken to the SDO's office where he found cotton belts lying on the table. Then and there the Customs Officers asked the appellant about the gold to which he replied that it did not belong to him. Then the Officers started assaulting him and tying the belts around his body.

During the process he became unconscious. It is next stated in the grounds that Additional Chief Metropolitan Magistrate while remanding the appellant into judicial custody ordered his medical examination. Pursuant thereto he was examined by the Chief Medical Officer of the Bombay Central Prison 16 Hospital and his report indicated that he had suffered injuries. The customs authorities, however, denied the allegations of assault made by the appellant. 7. According to the detaining authority, from all the facts stated in the grounds of detention, it was evident that the appellant smuggled massive quantity of gold to India for the second time and he was likely to continue to do so for which it was necessary to detain him.

8. The question as to whether a detenu or anyone on his behalf is entitled to challenge an order of detention without the detenu submitting or surrendering to it and, if so, what will be the nature, scope and extent of such challenge came up for consideration before a three-Judge Bench of this Court, of which one of us (Sawant J.) was a member, in Addl. Secy., Govt. of India v. Alka Subhash Gadia1. The Court, after striking a balance between the competing claims of the individual to his liberty and of the State to detain an individual to safeguard the interest of the society and on a conspectus of the decisions of this Court and of different High Courts on the subject, answered the question with the following words: (SCC pp. 520-21, para 30) "... it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution.

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 are 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 is 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 orders prior t o their execution on any other ground 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." (emphasis supplied)

9. Mr Jethmalani first contended that the five contingencies referred to in the above-quoted passage were not exhaustive but illustrative as there might well be other contingencies in which pre-execution challenge to the order of detention would be permitted. In elaborating his contention Mr Jethmalani submitted that in the case in hand there were sufficient materials to prove that the Customs Officers concocted a false case of smuggling against the appellant after beating him, keeping him in illegal custody for three days and coercing him to make a confessional statement. In support of this submission, Mr Jethmalani first drew our attention to the report of the doctor of the Jail Hospital submitted on 2-6-1990 to the Chief Metropolitan 1 1992 Supp (1) SCC 496: 1992 SCC (Cri) 301 17 Magistrate regarding medical examination of the appellant which indicates that the doctor found some bruises and abrasions on his person and he complained of pain on his body. Mr Jethmalani then drew our attention to the fact that though the appellant was apprehended in the early hours of 225-1990 and was thus constitutionally and statutorily required to be produced before the nearest Magistrate latest by 23-5-1990 he was kept unlawfully detained till 25-5-1990 when the customs authorities produced him in court. Mr Jethmalani submitted that as these facts unmistakably demonstrated the misuse and abuse of extraordinary constitutional powers by the State machinery this Court would not allow the liberty of a victim of exercise of such powers to be taken away even if the parameters mentioned in Alka Subhash Gadia1 did not apply in this case. Even otherwise, Mr Jethmalani urged, the facts herein clearly made out a case for interference by this Court under category (iii) mentioned in the above-quoted passage in Alka Subhash Gadia I, namely that the impugned order was passed for a wrong purpose.

10. Having given our anxious consideration to the above contentions of Mr Jethmalani, we are unable to accept the same. In the passage, earlier quoted from Alka Subhash Gadia1, this Court has expressly laid down that the interference with detention orders at pre-execution stage has to be limited in scope and number as mentioned therein.

The Court has reiterated the same view as will be evident from the following further observations made in that case: (SCC p. 522, para 32) in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds state d above." (emphasis supplied)

11. The above principles laid down in Alka Subhash Gadia1 have been quoted with approval by another three-Judge Bench in N.K. Bapna v. Union of India2. Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same species as of the five contingencies referred to therein. Coming now to Mr Jethmalani's submission that the detention order was passed "for a wrong purpose", namely, to harass and humiliate the appellant by concocting a false case of smuggling, based primarily on a confession obtained from him after subjecting him to assault, illegal detention and extortion we find that the detaining authority has denied the allegations of assault and extortion. Needless to say these are disputed questions of fact, which we cannot entertain much less delve into or decide upon. In any case, the said fact, even if true cannot vitiate the order of detention. As regards the allegation of illegal detention, the respondents have drawn our attention to the following lines in paragraphs 10 of their affidavit-in-reply:

2 (1992) 3 SCC 512: 1992 SCC (Cri) 683 18 "... the petitioner was allowed to stay in the Air Intelligence Office as the investigation had to be done to find out the whereabouts of the receiver of the contraband gold, the information of which was given by the petitioner to me and other investigating officers during the course of interrogation.

The petitioner was interrogated only and not arrested as alleged by him. The petitioner was arrested only on 24-5-1990 and produced before Chief Metropolitan Magistrate on 25-5- 1990." to contend that there was no breach of constitutional or legal provision as the petitioner was produced before a competent court within 24 hours of his formal arrest. In our considered view, even if it is held that the above explanation offered by the respondents for delayed production is not a satisfactory one and that the Customs Officers have failed to comply with constitutional and statutory requirements, the order of detention which has been made by the detaining authority on the basis of its satisfaction that the petitioner was smuggling gold, would not be bad on that score. The appellant, however, would be certainly entitled to seek appropriate relief by way of compensation or otherwise in case he succeeds in proving that he was wrongfully and illegally detained. For the foregoing discussion, we are unable to hold that the order of detention is made for a purpose extraneous to the provisions of COFEPOSA.

12. Mr Jethmalani next contended that the utter absurdity of the allegation of smuggling made against the appellant would be borne out by the photographs which were taken at the instance of the Customs Officers at the time of the appellant's apprehension as they would clearly show that it was impossible for him to zip up his trousers, with three belts tied, each containing 60 pieces of gold, weighing 10 tolas each, around his waist. Though this factual submission was not a relevant consideration at this stage in the context of the principles laid down in Alka Subhash Gadia1 we had, to satisfy our judicial conscience, called for and saw all the photographs carefully. Having done so we are constrained to say that Mr Jethmalani's submission in this regard was based on wrong instructions.

13. Mr Jethmalani lastly submitted that having regard to the fact that the order of detention was passed as far back as in 1990 and the maximum period of detention, which the appellant would have to undergo under the order was two years, was long over, his detention at this distant point of time would be punitive and not preventive. It is undoubtedly true that an unusual delay in execution of an order of detention if not satisfactorily explained, may persuade the court to draw such an inference. There is, however, no scope for drawing such an inference in this case as the delay here has been occasioned not by any omission or commission on the part of the detaining authority. On the contrary, it is the appellant who has delayed the execution by first moving the Bombay High Court and then this Court.

That apart, the respondents have asserted that though this Court had not passed any interim order against execution of the order, it could not be served as the appellant was absconding. It is pertinent to point out here that an identical contention 19 raised by Mr Jethmalani on similar facts was negatived by this Court in `Bhawarlal Ganeshmalji v. State of TN.3 14. On the conclusions as above, we dismiss the appeal.

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