Ashadevi, Wife of Gopal Ghermal Mehta
(Detenu) Vs. K. Shiveraj [1978] INSC 220 (3 November 1978)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 447 1979 SCR (2) 215 1979
SCC (1) 222
CITATOR INFO :
D 1986 SC 687 (77) R 1987 SC1472 (12) D 1987
SC1748 (12) R 1988 SC 208 (7) D 1988 SC 227 (11) D 1989 SC 497 (7) F 1989
SC1282 (10)
ACT:
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act 1974-Section 3(1)-Detenu detained on
allegation of smuggling of gold-His advocate not permitted at the time of his
interrogation-Confessional statements retracted by detenu-No material placed
before detaining authority while passing detention order-Order validity of'.
HEADNOTE:
A detention order, under s. 3(1) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was
passed by the respondent against the detenu (appellant's husband) with a view
to prevent him from engaging in transporting smuggled gold. When the detenu was
in the custody of the Customs officers, his advocate addressed a letter and
sent a telegram to them protesting against his detention and illegal custody
beyond 24 hours and also expressing an apprehension that he was being detained
with a view to obtain confessional statements under duress. It was admitted
that the advocate's request for permission to remain present at the time of
interrogation of the detenu was turned down by the Customs officers. The
advocate was also told that the detenu would be produced before a Magistrate at
5.30 p.m. On the day of her request.
But that was not done. He was produced on the
following day and was remanded to judicial custody permitting further
interrogation by the Customs officers. During such interrogation while in
judicial custody, the detenu refused to sign the further statements and
squarely resiled from his earlier confessional statements disowning the facts
therein stated. While the detenu's application for bail was pending before the
Magistrate, the respondent passed the impugned order.
In her petition under Art. 226 of the
Constitution for the issue of a writ of habeas corpus the appellant contended
that the order of the detaining authority was liable to be set aside because
full facts of the case were not intimated to it before detention order was
passed and, therefore, there was complete non-application of mind of the
detaining authority to the attendant vital circumstances. The High Court
dismissed the petition.
Allowing the appeal,
HELD: (1) The impugned order was invalid and
illegal because there was complete non-application of the mind of the detaining
authority to the most material and vital facts which would have influenced the
mind of The detaining authority one way or the other as these were neither
placed before it nor considered by the detaining authority. [223E] (2) It is
well settled that if material or vital facts, which would influence the mind of
the detaining authority one way or the other on the question whether or not to
make the detention order, are not placed before or are not con 216 sidered by
the detaining authority it would vitiate its subjective satisfaction rendering
the detention order illegal. The detaining authority must exercise due care and
caution and act fairly and justly in exercising the power of detention and if
taking into account matters extraneous to the scope and purpose of the statute
vitiates the subjective satisfaction and renders the detention order invalid
then failure to take into consideration the most material or vital facts likely
to influence the mind of the authority one way or the other would equally
vitiate t the subjective satisfaction and invalidate the detention order. [222A
B] In the instant case three facts were not communicated to or placed before
the detaining authority before it passed the impugned order against the detenu
viz., (i) during the interrogation, in spite of the request, neither the
presence nor consultation of the advocate was permitted, (ii) in spite of
intimation to the advocate by the Customs officers the detenu was not produced
before the Magistrate at the appointed time and (iii) the confessional
statements were squarely retracted by the detenu at the first available
opportunity while he was in judicial custody. The first two had a bearing on
the question whether the confessional statements had been extorted under duress
from the detenu or not. while the third was in relation to the confessional
statements which formed the foundation of the impugned order and as such were
vital facts having a bearing on the main issue before the detaining authority.
Sk. Nizamuddin v. State of West Bengal AIR
1974 SC 2353; Suresh Mahato v. The District Magistrate, Burdwan & Ors.. AIR
1975 SC 728; Nandini Satpathy v. The State of Orissa [1978] 2 SCC 424; applied.
(3) The fact that the request to have the
presence or consultation of the h lawyer was made and refused ought to have
been intimated to the detaining authority. Further in passing the detention
order the detaining authority based its decision on the detenu's confessional
statements and, therefore, it was obligatory upon the Customs officers to
report to the detaining authority the retraction of those statements by the
detenu. In fact of retraction would have its own impact one way or the other on
the detaining authority before making up its mind whether or not to issue the
impugned order of detention. [223A B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 350 of 1978.
(From the Judgment and order dt. 29-5-78 of
the Gujarat High Court in Spl. Criminal Appln. No. 20 of 1978) Ram Jethmalani
and Mrs. K. Hingorani for the appellant.
S. K. Mehta and M. N. Shroff for the
respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. On September 29, 1978 the detenu herein was directed to be
released forthwith on his detention order being set aside and we had stated
that we would give our reasons for our order later which we do presently.
217 By a detention order passed on January 4,
1978 under s. 3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as
"COFEPOSA") the detenu Gopal Ghermal Mehta was detained by the
Additional Chief Secretary to the Government of Gujarat (Respondent No. 1) with
a view to preventing him from engaging in transporting smuggled goods. The
grounds of detention were served upon him on the same day i.e. On January 4,
1978. Briefly stated the grounds disclosed the following material against the
detenu: on receipt of certain information on December 12, 1977 by the Customs
officers of Ahmedabad, the said officers had kept a watch for a Fiat Car No.
GTI-6020 and the said car with five occupants was intercepted in the early
hours of December 13, 1977 near Naroda Railway Crossing and the occupants (the
detenu and four others) were taken to the Customs Divisional Office, Paldi,
Ahmedabad for examination. The detenu and the other four occupants of the car
denied that they were carrying any smuggled gold or prohibited articles, but on
search of one of the occupants Sheveram Atmaram Chandwani two cloth bags were
recovered D, from him, in one of which there were 27 gold bars of foreign
marking weighing 19 tolas valued at Rs. 2,16,00 and in the other there were 18
pieces of gold bearing 'Trishul' mark valued at Rs. 1,94,400/-. Chandwani in
his statement before the Customs officers stated that the two bags which he was
carrying on his person belonged to the detenu who was dealing in Silver and
Gold in Udaipur and that he was merely a carrier who used to receive
remuneration of Rs. 100/- per trip from the detenu. Two statements of the
detenu were recorded by the Customs officers on December 13 and 14, 197$, in
which he corroborated the version of Chandwani but added that the entire
quantity of foreign marked gold and the 'Trishul' marked gold belonged to one
Prem of Chandni Chowk, Delhi, for and on whose behalf he was carrying the gold
from Delhi to Udaipur and from Udaipur to Ahmedabad for disposing it of to two
persons, Namely, Poonamchand Laxmanji and Bhagubhai in Ahmedabad. The detenu
also stated that this had been going on for about six to eight months and that
he had made five to six trips in a month and on each such trip he used to carry
2 1/2 to 3 kgs. of gold. He further admitted that the Fiat Car in question had
been purchased for this purpose for Rs. 15,000/- which money had been provided
by Prem. He further stated that after disposal of the gold belonging to Prem at
Ahmedabad he used to carry the sale proceeds to Prem and account for the same
at the time of the next transaction between him and Prem.
Counsel for the petitioner (being the wife of
the detenu) did not dispute that the aforesaid material disclosed in the
grounds was 15-817SCI/78 218 prima facie sufficient to show the detenu's
involvement in the racket of smuggling gold, namely, transporting smuggled gold
from Delhi to Udaipur and from Udaipur to Ahmedabad but he challenged the
detention order on the ground that procedural safeguards had not been followed
vitiating the requisite satisfaction on the part of the detaining authority under
s. 4(1). It appears that when the interrogation of the detenu was going on
while he was in custody of the Customs officials, Smt. Devyantiben Shah, an
Advocate of the detenu addressed a letter as also a telegram, both dated
December 14, 1977, making a grievance about the wrongful restraint and illegal
custody of the detenu by the Customs officers beyond 24 hours and expressing
apprehension that . the detenu had been so detained with a view to obtain
confessional statements against his will. The receipt of the letter was
disputed but the Assistant Collector of Customs admitted the receipt of the
telegram from the Advocate on December 15, 1977. By his reply dated December
15, 1977 sent to the Advocate, the Assistant Collector denied the allegations
made in the telegram. Admittedly on December 14, 1977, the Advocate had gone to
the Customs office and had sought permission to remain present at the time of
the interrogation of the detenu but her request was not acceded to as the
Customs Officers were of the view that there was no provision in law permitting
an Advocate to remain present at the time of interrogation. Further on this
occasion the Advocate was told that the detenu will be produced before the
Magistrate at 5.30 p.m. On that very day and, therefore, she waited in the
Magistrate's Court upto 5.30 p.m. to obtain bail for the detenu but as the
detenu was not produced the Magistrate declined to pass any order on the bail
application. On December 15, 1977 the detenu was produced before the Magistrate
who remanded him to Customs custody for five days in spite of opposition by the
Advocate. On December 20, 1977 the detenu was again produced before the
Magistrate and even on this occasion bail was refused but the detenu was
remanded to judicial custody permitting further interrogation by Customs
Officers. On December 22, 1977 while he was in judicial custody the detenu was
interrogated by Customs officers and his statement was recorded on that day but
the detenu refused to sign the same and instead made an endorsement that his
earlier statements dated December 13 and 14, 1977 and the facts stated therein
were not correct.
In other words, in his statement dated
December 22, 1977 the detenu had resiled from his earlier confessional
statements and had squarely repudiated the facts stated therein. On January 3,
1978 the Advocate of the detenu made another application for getting him
released on bail as the period of remand was to expire on January 1978 and that
application was fixed for hearing on January 6, 1978 but on January 4, 1978
itself while the 219 detenu was in judicial custody the Additional Chief
Secretary to the Gujarat Government (Respondent No. 1) passed the impugned
order under s.3(1) of the "COFEPOSA" and the detenu was detained
thereunder.
The aforesaid detention was challenged by the
appellant (wife of the detenu) before the Gujarat High Court under Article 226
of the Constitution by filing Special Criminal Application No. 20 of 1978
seeking a writ of habeas corpus for the release of the detenu principally on
the ground that there was complete non-application of mind on the part of the
detaining authority (respondent No. 1) to the attendant circumstances in which
the confessional statement of the detenu on which the detention order was
mainly based-were recorded, particularly the vital facts that transpired during
the interrogation as also those that followed the recording of those
statements. It was contended that apart from the apprehension expressed in the
Advocate's telegram that the detenu was being detained with a view to obtain
his confessional statements under duress, the said confessional statements had
actually been retracted by the detenu at the first available opportunity when
he was in judicial custody on the ground that these had been involuntarily
extorted from him and that such retraction of the confessional statements was
not intimated to the detaining authority and was not considered by it before
passing the impugned detention order and as such for want of considering such
vital fact the subjective satisfaction of the detaining authority got vitiated
and the impugned order was liable to be set aside. The High Court, however,
rejected the said contention as also the other contentions urged on behalf of
the appellant (the wife of the detenu) and dismissed the said application on
May 29, 1978. Against this dismissal the present appeal has been preferred.
Counsel for the petitioner contended before
us that the High Court had clearly erred in taking the view that since the
contents of the telegram dated December 14, 1977 expressing the apprehension
had been made known to the detaining authority it could not be said that this
material aspect of the case had been kept back from the detaining authority. It
was pointed out that the mere expression of an apprehension that confessional
statements might be extorted was different from the actual obtaining of the
statements under pressure of which a complaint had been made by the detenu in
his statement recorded on December 22, 1977 wherein the earlier statements had
been completely retracted and it was urged that the fact that there was such
retraction of the confessional statements by the detenu at the first 220
available opportunity was not communicated or placed before the detaining
authority when it considered the question of passing the impugned order.
Counsel further contended that instead of considering whether these facts were
vital enough to require the application of mind by the detaining authority, the
High Court went on to record findings of fact, to the effect (i) that it could
not be said that the detenu was in illegal custody: (ii) that the confessional
statements could not have been extracted under compulsion and (iii) that the
said statements were not obtained under duress and in doing so the High Court
clearly acted in excess of jurisdiction and contrary to the well established
principles applicable to the issue of habeas corpus in preventive detention
case. In any case it was for the detaining authority to apply its mind to these
aspects before deciding to issue the impugned order. Counsel further contended
that it was undisputed that the Advocate was not allowed to be present nor
allowed to be consulted during the interrogation in spite of request having
been made in that behalf which clearly showed that the detenu was under duress
and not a free person. In any event, counsel contended, the satisfaction of the
detaining authority must be regarded as vitiated inasmuch as these vital facts,
namely, (i) that during interrogation in spite of request neither the presence
nor the consultation of the Advocate was permitted;
(ii) that in spite of intimation to the
Advocate in that behalf the detenu was not produced before the Magistrate at
5.30 p.m.. On December 14, 1977 and (iii) that the confessional statements had
been squarely retracted by the detenu on December 22, 1977 at the first
available opportunity while he was in judicial custody all of which had a
material bearing and would have influenced the mind of the detaining authority
one way or the other-were neither placed before nor considered by the detaining
authority before passing the detention order on January 4, 1978 and, therefore,
the impugned order was liable to be set aside. We find considerable force in
these contentions urged by counsel for the appellant before us.
It is well settled that the subjective
satisfaction requisite on the part of the detaining authority, the formation of
which is a condition precedent to the passing of the detention order will get
vitiated if material or vital facts which would have a bearing on the issue and
would influence the mind of the detaining authority one way or the other are
ignored or not considered by the detaining authority before issuing the
detention order. In Sk. Nizamuddin v. State of West Bengal(1) the order o`f
detention was made on September 10, 197 under s.3(2) (a) of MISA based on the
subjective satisfaction of the District Magistrate that it was necessary to
detain the petitioner with (1) A.I.R. 1974 S.C. 2353.
221 a view to preventing him from acting in a
manner prejudicial to the maintenance of supplies and services essential to the
community and his subjective satisfaction, according to the ground of detention
furnished to the petitioner, was founded on a solitary incident of theft of
aluminium wire alleged to have been committed by the petitioner on April 14,
1973. In respect of this incident of theft a criminal case was filed inter alia
against the petitioner in the Court of the Sub Divisional Magistrate Asansol,
but the criminal case was ultimately dropped as witnesses were not willing to
come forward to give evidence for fear of danger W their life and the
petitioner was discharged. It appeared clear on record that the history-sheet
of the petitioner which was before the District Magistrate when he made the
order of detention did not make any reference to the criminal case launched
against the petitioner, much less to the fact that the prosecution had been
dropped or the date when the petitioner was discharged from that case. ID
connection with this aspect this Court observed as follows:
"We should have thought that the fact
that a criminal case is pending against the person who is sought to be
proceeded against by way of preventive detention is a very material
circumstance which ought to be placed before the District Magistrate. That
circumstance might quite possibly have an impact on his decision whether or not
to make an order of detention.
It is not altogether unlikely that the
District Magistrate may in a given case take the view that since a criminal
case is pending against the person sought to be detained, no order of detention
should be made for the present, but the criminal case should be allowed to run
its full course and only if it fails to result in conviction, then preventive
detention should be resorted to. It would be most unfair to the person sought
to be detained not to disclose the pendency of a criminal case against him to
the District Magistrate." It is true that the detention order in that case
was ultimately set aside on other grounds but the observations are quite
significant. These observations were approved by this Court in Suresh Mahato v.
The District Magistrate, Burdwan and others(1). The principle that could be
clearly deduced from the above observations is that if material or vital facts
which would influence the mind of the detaining authority one way or the other
on the question whether or not to make the detention order, are not placed
before or are not considered by the detaining authority it would vitiate its
subjective satisfaction rendering the detention order illegal. After all the
detaining authority must exercise (1) A.I.R. 1975 S.C. 728.
222 Due care and caution and act fairly and
justly in exercising the power of detention and if taking into account matters
extraneous to the scope and purpose of the statute vitiates the subjective
satisfaction and renders the detention order invalid then failure to take into
consideration the most material or vital facts likely to influence the mind of
the authority one way or the other would equally vitiate the subjective
satisfaction and invalidate the detention order.
In the instant case admittedly three facts
were not communicated to or placed before the detaining authority before it
passed the impugned order against the detenu, namely, (i) that during
interrogation of the detenu, in spite of request neither the presence nor the
consultation of the Advocate was permitted; (ii) that in spite of intimation to
the Advocate in that behalf the detenu was not produced before the Magistrate
on December 14, 1977 and (iii) that the confessional statements were squarely
retracted by the detenu on December 22, 1977 at the first available opportunity
while he was in judicial custody; the first two had a bearing on the question
whether the confessional statements had been extorted under duress from the
detenu or not, while the third obviously was in relation to the confessional
statements which formed the main foundation of the impugned order and such were
vital facts having & bearing on the main issue before the detaining
authority. As regards the first this Court in Nandini Satpathy's(1) case has
observed in para 63 of the judgment thus:
"Lawyer's presence is a constitutional
claim in some circumstances in our country also, and, in the context of Article
20(3), is an assurance of awareness and observance of the right to silence. The
Miranda decision has insisted that if an accused person asks for lawyer's
assistance, at the stage of interrogation, it shall be granted before
commencing or continuing with the questioning. We think that Article 20(3) and
Article 22(1) may, in a way, be telescoped by making it prudent for the police
to permit the advocate of the accused, if there be one, to be present at the
time he is examined. Overreaching Article 20(3) and Section 16(2) will be
obviated by this requirement. We do not lay down that the police must secure
the services of a lawyer. That will Lead to 'police station-lawyer' system, an
abuse which breeds other vices. But all that we mean is that if an accused
person expresses the wish to have his lawyer by his side when his examination
goes on, this facility shall not be denied, without being exposed to the
serious reproof that involuntary self-crimination secured in secrecy and by
coercing the will, was the project." (1)[978] 2 S.C.C.424.
223 In this case the request to have the
presence/consultation of a lawyer was turned down owing to some misconception
of the legal position but that apart, the fact that such a request was made and
refused ought to have been intimated to the detaining authority. Further, in
passing the detention order the detaining authority obviously based its
decision on the detenu's confessional statement of December 13 and 14, 1977
and, therefore, it was obligatory upon the Customs officers to report the
retraction of those statements by the detenu on December 22, 1977 to the
detaining authority, for, it cannot be disputed that the fact of retraction
would have its own impact one way or the other on the detaining authority
before making up its mind whether or not to issue the impugned order of
detention. Questions whether the confessional statements recorded on December
13 and 14, 1977 were voluntary statements or were statements which were
obtained from the detenu under duress or whether the subsequent retraction of
those statements by the detenu on December 22, 1977 was in the nature of an afterthought,
were primarily for the detaining authority to consider before deciding to issue
the impugned detention order but since admittedly the aforesaid vital facts
which would have influenced the mind of the detaining authority one way or the
other were neither placed before nor considered by the detaining authority it
must be held that there was no application of mind to the most material and
vital facts vitiating the requisite satisfaction of the detaining authority
thereby rendering the impugned detention order invalid and illegal. For these
reasons we set aside the impugned detention order.
P.B.R. Appeal allowed.
Back
