Hemlata Kantilal Shah Vs. State of
Maharashtra & Ors [1981] INSC 186 (30 October 1981)
ISLAM, BAHARUL (J) ISLAM, BAHARUL (J) SEN,
A.P. (J)
CITATION: 1982 AIR 8 1982 SCR (1)1028 1981
SCC (4) 647 1981 SCALE (3)1657
CITATOR INFO :
R 1982 SC1029 (11) R 1982 SC1165 (10) R 1988
SC 227 (7) R 1988 SC1256 (12) RF 1990 SC 225 (8) APL 1990 SC 231 (9,10,11) R
1990 SC1446 (14)
ACT:
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974-Scction 8 (e)-Representation of
detenu by lawyer before Advisory Board-If could be claimed as of right.
HEADNOTE:
Detaining authority gave grounds of
detention-Whether should also state the particular ground on which the detenu
was detained-Whether should state that certain metal is a precious metal.
Delay in passing order of detention-Whether
fatal to the order of detention in all cases-Detaining a person under
preventive detention law instead of prose cutting him under ordinary law-When
permitted.
Confidential guidelines issued to oficials of
department-Whether have force of law.
Past conduct of detenu-If could be taken into
consideration in detaining an offender.
Procedure-Supreme Court and High
Court-Jurisdiction under articles 32 136 and 226 in preventive detention cases-
Courts if could substitute their own satisfaction for that of detaining
authority.
on their arrival at the airport from Muscat
the Customs Authorities apprehended the petitioner and her husband (the detenu)
and recovered 141 slabs of palladium (a precious metal) each slab weighing one
ounce, concealed in different parts of their baggage. In his statement under
section 108 of the Customs Act the detenu stated that he was smuggling the
metal because of the huge profit involved in it and that he alone was
responsible for the smuggling. He was detained under the provisions of section
3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 In a petition under article 32 of the Constitution filed
by the detenu's wife it was contended on behalf of the detenu that: (I)
arbitrary rejection of his request for legal representation before the Advisory
Board caused serious prejudice to him; (2) as a result of the authority's
refusal to give information on five out of six points asked for by the detenu
he was deprived of the opportunity to make a proper representation; (3) there
was no reason for detaining him on June 6, 1981 although he was apprehended on
January 8, 1981 and this long 1029 delay had prejudiced his case: (4) on the
facts and circumstances of the case although prosecution was the normal remedy
he was unjustifiably detained under A the COFEPOSA Act; and (5) failure of the
authorities to follow the guidelines framed by the Government rendered the
detention mala fide and discriminatory.
Dismissing the petition,
HELD :1. Section 8(e) of the Act does not bar
representation by a lawyer 1 but only lays down that the detenu cannot claim
representation by a lawyer as of right.
The Act has given the Board a discretion to
permit or not to permit representation of the detenu by counsel according to
necessity in a particular case. In the instant case after the rejection of the
request the Board reviewed his case and gave its opinion on which alone the
Government confirmed the detention. [1033 G] 2(a) When a document containing the
grounds of detention is supplied to the detenu he is not entitled to know which
part or parts of the grounds was or were taken into consideration by the
detaining authority in detaining him. lt will be for the Court to judge whether
the facts narrated constituted the grounds of detention or which facts might
possibly enter and influence the detaining authority in coming to its
subjective satisfaction. [1035 F-G] (b) The question whether or not import of
palladium is prohibited is an information on a question of law and could have
been obtained by the detenu from the relevant statutes, rules etc. The
Government is not under any obligation to furnish him with legal information
which is available from legal literature. The detaining authority is only
required to comply with the requirements of article 22(S) of the Constitution.
[1336 A-B] (c) The plea that the detenu did not know whether palladium was a
precious metal is not a permissible plea on the ground of public policy. Any
detenu may plead that he had no knowledge that gold or silver is a precious
metal.
That apart, the detenu in his statement
before the Customs Authorities had stated that he purchased the metal from a
dealer in precious metals and that he had smuggled it to make profit. Though
not a prohibited article, it is a dutiable article. [1036 E-F]
3. In passing a detention order, the
authorities concerned must have due regard to the object with which the order
was passed. Delay simpliciter in passing an order of detention after an
incident is not fatal to the detention.
In certain cases delay may be unavoidable and
reasonable.
What is required by law is that the delay
must be satisfactorily explained by the detaining authority. Neither has the
detaining authority any liability to tell or satisfy the detenu as to the
causes of delay. It should satisfy the Court that there was no infraction of
the constitutional provisions. In the instant case eleven statements of the
detenu and his wife were recorded on various dates between January 9, 1981 and
April 7, 1981 and the order of detention had been issued after the completion
of the investigation.
[1037 C-D; 1038 A-B]
4. A prosecution or the absence of it is not
an absolute bar to an order of H preventive detention. If the authority is
satisfied that the offender has a tendency to violate laws there will be no bar
to detain a person under the Preventive 1030 Detention Act in order to disable
him to repeat such offences. What is required is that the detaining authority
should satisfy the Court that it had in mind the question whether prosecution
was sufficient in the circumstances or the case. In the instant case the
detaining authority stated that the prosecution under the ordinary law was not
sufficient for preventing the detenu from indulging in similar activities in
future. [1039 B-D 5(a) The guidelines issued by the Government, were of a
confidential nature and intended to guide the customs and the intelligence
officials and have no force of law. There can be no valid complaint of
discrimination in arresting and bringing to book a particular offender under
the Customs Act or under any Preventive Detention Law. [1040 H] (b) The past
conduct or antecedent history of a person can appropriately be taken into
consideration in making a detention order. In the instant case the detenu
admitted that he had a home in Bombay and business in Muscat; his passport
showed that he was moving between India and Muscat;
he smuggled palladium into India to make
profit. The detaining authority was well within its jurisdiction in taking into
consideration all these facts and subjectively coming to the satisfaction
whether or not he would be repeating his activities.
[104] C-D]
6. The High Court under article 226 and this
Court either under article 32 or Article 136 of the Constitution do not sit in
appeal on the orders of preventive detention.
They have to see whether the formalities
enjoined by article 22(S) have been complied with by the detaining authority
and if that has been done the Court cannot examine the materials before it and
find that the detaining authority should not have been satisfied on the
materials before it and detained him under the Preventive Detention Act. That
is the function of an appellate court. [1041 F-H]
ORIGINAL JURISDlCTlON: Writ Petition (Criminal)
No. 3662 of 1981 (Under Article 32 of the Constitution of India) Ram Jethmalani
and Miss Rani Jethmalani for the Petitioner.
O.P. Rana and R.N. Poddar for the
Respondents.
The Judgement of the Court was delivered by
BAHARUL ISLAM, J. By this petition under Article 32 of the Constitution of
India, Smt. Hemlata Kantilal Shah (hereinafter the 'wife') has challenged the
detention of her husband Shri Kantilal Nagar Das Shah (hereinafter the detenu)
who was detained by the State of Maharashtra (Respondent No. 1) by order dated
June 3, 1981 under Sub- section (1) of Section 3 of the Conservation of 1031
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 A
(hereinafter the 'Act"). The material facts on which the grounds of
detention have been based may be briefly stated as follows:
2. On January 8, 1981, the detenu with his
wife and their minor daughter, Miss Chaya Kantilal Shah, arrived in Bombay from
Muscat by Flight No. AI 883. The petitioner at the customs clearance counter of
the airport appeared nervous and was hasty in clearing her baggage. The
Intelligence officer of the Air Customs Unit who had been present at the
counter on receipt of secret information kept a close watch on her. When the
family reported at the customs counter, the Intelligence officer approached
them and asked for their passports. It was found that the detenu, the
petitioner and their daughter were all holding Indian passports and were
frequent travellers. When asked about the contents of the baggages and for declaration
in respect of gold, watches, and other valuable items, the detenu replied in
the negative. The wife was asked to present her purse which was kept in a
corner of the Customs counter covered with other pieces of baggage. In the said
purse, one small tobacco tin marked "Three Nuns" was found. The tin
appeared to be unusually heavy and as such the detenu was asked again to
declare the contents. The declaration was that the contents were some coins and
that the tin was to be delivered to one Torahim in Bombay. Not being satisfied
with the reply, two independent panchas were called and in their presence and
in presence of the detenu and his wife, the tin was opened and 48 slabs of
'Palladium' metal each weighing one ounce were found. The baggage was then thoroughly
examined in the presence of the detenu and his wife and the panchas. The
examination resulted in recovery of 93 more slabs of 'Palladium' concealed in
cheese packets, and in thermocol. Thus altogetller 141 slabs of 'Palladium'
valued at Rs. 3,54,192.00 were recovered. They were seized by the Customs
officer.
3. The detenu and his wife were then led to
their residential premises of Flat No. 194, 19th floor, Persepolis Apartment,
Cuff Parade, Bombay-S, standing in the name of the wife. The premises were
searched under a search warrant.
The search resulted in the recovery of (I)
Philips colour T.V. valued at Rs. 18,00000;(2) Akai Video Cassettee Recorder
valued at Rs. 24,000; (3) Sharp 3-in-one Model valued at Rs. 6,000,00 and (4)
General Air Conditioner valued at Rs. 15,000. All these articles were also
seized by the Customs officer.
4. On the following day, the detenu made a
statement which was recorded under Section 108 of the Customs Act. The detenu
stated that he had been in Muscat for the last 40 years and had business of
ready-made garments there; and that he was a wealthy man with two wives named
Hasumati and Hemlata (the petitioner), The two wives were staying in Bombay at
Cuff Parade in separate apartments. The detenu further stated that two months
ago he had come to Bombay where he had come to know from Zaveri Bazar that
smuggling of 'Palladium' was a profitable business. He therefore had purchased
the 141 slabs of 'Palladium' of one ounce each for 9000 omani Riyals from one
Pursottam Kanji in Muscat who was a dealer in precious metals. Before leaving
Muscat for Bombay, he had packed the 141 bars of Palladium in the three
containers aforesaid. The detenu also stated that the Sharp 3-in-one had been
presented to him by His Highness Sultanbin Hamed-Al-Said of Muscat in October,
1980, and that the other three articles had been purchased by him from the
Omani Consul General, Mr. Salim Hakim. The detenu further stated that he took
full responsibility for the 141 bars of Palladium seized and his wife had
nothing to do with them.
5. Mr. Ram Jethmalani, learned counsel
appearing for the petitioner makes the following submissions before us:
(I) The detenu asked for legal representation
before the Advisory Board by letter dated July 31, 1981 but it was arbitrarily
rejected on August 3, 1981, thereby causing serious prejudice to the detenu.
(II) After his detention, the detenu asked
for six particulars to enable him to make the representation; only one
particular was furnished and five were refused by the authority by its letter
dated July 21, 1981 (Ex. A), thereby depriving the detenu from making a proper
representation.
(III)The Government had framed guidelines in
regard to detention. The authority however did not follow these guidelines in
the case of the petitioner; so the order of detention was mala fide and
discriminatory.
(IV) That the case of the petitioner is
peculiarly a case in which the prosecution was the normal remedy; and 1033 (V)
That the cause of detention arose on January 8, 1981 A in the airport and there
was no reason for the unusual delay in passing the order of detention on June
6, 198 1 .
6. We now proceed to examine the contentions
one by one.
(I) Legal representation before the Advisory
Board.
Learned counsel for the petitioner has placed
before us a copy of the letter dated July 31, 1981, addresed to the Secretary,
Advisory Board by the detenu's counsel, Mr. G.L.
Ajwani. Mr. Ajwani referred to an earlier
letter dated July 10, 1981, wherein he had requested, inter alia, for
permission to the detenu to be represented by an advocate before the Advisory
Board. The Secretary of the Advisory Board sent a reply to Mr. Ajwani, who was
informed that in view of Section 8 (e) of the Act, the detenu "is not
entitled to appear before the Advisory Board by any legal practitioner. The
Advisory Board has not permitted a legal practitioner to appear in any
reference made to it under the aforesaid Act and hence your request cannot be
acceded to." Section 8 (c) reads as follows:- "For the purposes of
sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of article 22
of the Constitution,- ... ...
(e) a person against whom an order of
detention has been made under this Act shall not be entitled to appear by any
legal practitioner in any matter connected with the reference to the Advisory
Board. .." Section 8 (e) has not barred representation of a detenu by a
lawyer. It only lays down that the detenu cannot claim representation by a
lawyer as of right. It has given the Board a discretion to permit or not to
permit representation of the detenu by counsel according to the necessity in a
particular case. Certain cases may be complicated and assistance of lawyers may
be necessary on behalf of the parties to explain the facts and law involved in
the case.
In the instant case, the submission is that
the rejection of the request of the detenus counsel by the advisory Board on
the ground that 1034 in the past no legal representation had been allowed on
behalf of any detenu has been based on a misconception of the law. We are
unable to accept the submission of the learned counsel on two grounds; (i) the
Advisory Board whose action is complained of is not a party before us; and (ii)
our decision on the point would be merely academic. It would be academic
because after rejection of the request, the Board reviewed the case of the
detenu and gave its opinion whereupon the Government confirmed the detention.
(II) The second submission of learned counsel
was with regard to non-supply with particulars. Mr. Ajwani aforesaid sent a
letter (Ex. A) dated July 10, 1981 to , the Assistant Secretary to the
Government, Home Department (Special), Government of Maharashtra. In that
letter he requested the Government to furnish six 'informations' mentioned in the
letter. They were as follows:- (1) The name and designation of the officer on
whose satisfaction the order of detention was made and relevant authority under
the rules of business, enabling the said officer to pass detention orders on
behalf of the Government.
(2) The date on which the proposal to detain
was received by the detaining authority.
(3) Whether facts mentioned in Para 3 of the
grounds of detention have been used against the detenu for making the order of
detention.
(4) The provision of law under which the
import of Palladium is prohibited.
(5) Whether the detaining authority has
accepted or rejected my client's story about the acquisition of colour T.V.,
Akai cassete Video recorder, Air conditioner etc. If it has been rejected, then
the material on the basis of which this decision was taken, and (6) Whether any
inquiries, if any, were made from oman consulate or from consul General Mr.
Salim kim.' ' 1035 Learned counsel submits
that the "information' sought under A item (I) of the letter has been
furnished and he has no grievance about it. But none of the remaining five
'informations' were furnished. The submission of learned counsel is that the
Government is bound to disclose under which provision of law import of
Palladium is prohibited;
their failure to disclose this 'information'
deprives the detenu from making a proper representation.
Items 3, 5 and 6 are akin. With regard to
item (3), whether the facts mentioned in para (3) of the grounds of detention
were used against the detenu for making the order of detention, Shri
D.N.Capoor, Secretary to the Government of Maharashtra, Home Department, in his
counter affidavit, has stated in paragraph 20 of the affidavit:
"...I have not passed the order of
detention on the ground that the four items seized from the detenu's house were
smuggled. I say that I have mentioned the seizure of the said goods in the
grounds of detention as narration of facts. I say that paras 3 and 4 of the
grounds of detention are the narrations of the fact and the same is not a
ground for detention..." In our opinion the request of the detenu for the
information whether the detention was inter alia based on the seizures of the
four articles mentioned in para 3 of the list of grounds and the reply of the
authority to the request were irrelevant. When an order of detention together
with the grounds of detention is served on a detenu, the detenu may ask for
particulars on which a ground is based if they are not already there. When a
document containing what are called "grounds" which often consist of
the background of a case, narration of facts and instances of the detenu's
activities, is supplied to the detenu, the detenu is not entitled to know which
part or parts of the 'grounds' was or were taken into consideration and which
not. The Court may not take into consideration any reply given by the detaining
authority to such an enquiry; for, the reply may be an afterthought. It will be
for the Court to judge whether the facts narrated constitute a ground of
detention or which facts might possibly enter and influence the detaining
authority in coming to its subjective satisfaction.
1036 The information sought as per clause (4)
of the letter, namely, the provision under which the import of Palladium is
prohibited is equally untenable. Whether or not the import of Palladium is
prohibited or not is an information on a question of law and can be obtained
from Statutes, Rules o} Notifications. In our opinion, the Government is not
under any liability to furnish the detenu with legal information available from
legal literature. The liability of the detaining authority is only to comply
with the requirement of Sub-Article (5) of Article 22 of the Constitution.
In this case, it appears from Schedule I,
Appendix 2 to the Imports (Control) order, 1955 (as amended upto March 31,
1980) that the articles mentioned against item 71.09 as "Platinum and
other metals of the platinum group, unwrought or semi-manufac-tured"
appearing under Chapter 71 under which are mentioned 'Pearls, precious and semi-precious
Stones, precious Metals, Rolled Precious Metals, and Articles thereof;
Imitation Jewellery, Coin.' In the counter affidavit the detaining authority
has stated that Palladium is a precious metal belonging to the platinum group.
The submission of learned counsel is that the detenu even did not know whether
Palladium was a precious metal belonging to the Platinum group and the
Government's failure to furnish him with that 'information' prevented him from
filing a proper representation. We are unable to accept this submission,
inasmuch as the pela is not permissible on the ground of public, policy for,
any detenu may plead that he does not know whether gold or silver is a precious
metal. Be that as it may, the detenu stated in his statement that he had
purchased the palladium from the shop of a dealer in precious metal at Muscat
and that he had smuggled that metal to make profits. Though palladium may not
be a prohibited article it is admittedly a dutiable article and it was
admittedly smuggled by the detenu.
(V) Delay The submission of learned counsel
is that the detenu was arrested on January 9, 1981 but was detained on July 6,
1981. The submission is that this delay was fatal. In support of his
contention, learned counsel for the petitioner cited before us three decisions
of this Court reported in A.I.R. 1974 S.C. 1264, A.l.R. 1974 s.C. 2066 and
A.I.R. 1975 S.C. 1408. in A.I.R. 1974 S.C. 1264, this Court held that in
passing a detention order, the authorities concerned must have due regard to
the object with which the order 1037 was passed. If the object was to prevent
disruption of supplies of A foodgrains prompt action should be taken. In the
absence of any explanation regarding the delay, the order of detention, passed
with a view to prevent disruption of supplies of foodgrains on the grounds
based on incidents of removal of rice which took place about seven months
earlier, was invalid. In A.I.R. 1974 S.C. 2066 (supra), there was inordinate
delay and no proximity in point of time between the alleged prejudicial
activity of the petitioner and the order of detention. The Court found that a
period of nine months had elapsed between the incident and the order of
detention; and as the delay of nine months in the making of the order for
detention after the alleged incident had not been explained, order of detention
was held to be invalid. Delay ipso facto in passing an order of detention after
an incident is not fatal to the detention of a person, for, in certain cases
delay may be unavoidable and reasonable. What is required by law is that the
delay must be satisfactorily examined by the detaining authority.
In the case in hand in the counter affidavit
filed on behalf of the detaining authority, it has been stated in paragraph 16
as follows:- " .the detenu was arrested on 9th January, 1981 and was
detained on 6th July, 1981. Thereafter the Customs Authorities carried on
further investigation aud as can be seen from the list of the statements and
documents annexed to the grounds of detention, 11 statements of the detenu
including the statement dated 7th April, 1981 were recorded by the Customs
Authorities . .. I therefore say that there is no delay in passing the order of
detention as alleged by the petitioner . the present order of detention has
been issued after completing the investigation." From the foot of the
document containing the grounds of detention, it appears that the eleven
statements of the detenu and his wife were recorded on various dates between
January 9, 1981 C-: and April 7, 1981.
7. The submission of learned counsel is that
his grievance is not so much on the time lag or delay between the date of
arrest and the date of detention; his real grievance is in not furnishing with
the information as to the cause of the delay so as to enable the detenu to file
a proper representation before the Advisory Board for its 1038 consideration.
In our opinion, the submission is untenable.
The detaining authority is in no legal
liability to tell or satisfy the detenu as the causes of delay; it is under an
obligation to satisfy the court as to the causes of delay to show that there
was no infraction of the constitutional provisions laid down under Sub-Article
(S) of Article 22 of the Constitution. In our opinion, the delay has been
satisfactorily explained by the authority in its affidavit and it has not
vitiated the detention.
8. (lV) PROSECUTION The next point urged by
Mr. Ram Jethmalani is that in the instant case, the proper course for the
Govermnent was to prosecute and convict the detenu for the offence, if any, for
violation of the provisions of the Customs Act. In support of his contention he
cites a decision of this Court reported in [1980] ; S.C.R. 54. In that
decision, the Court after reviewing a number of cases summarised the law as
follows:- "The ordinary criminal process is not to be circum- vented or
short-circuited by ready resort to preventive detention. But, the possibility
of launching a criminal prosecution is not an absolute bar to an order of
preventive detention. Nor is it correct to say that if such possibility is not
present to the mind of the detaining authority the order of detention is
necessarily bad. However, the failure of the detaining authority to consider
the possibility of launching a criminal prosecution may, in the circumstances
of a case, lead to the conclusion that the detaining authority had not applied
its mind to the vital question whether it was necessary to make an order of
preventive detention. Where an express allegation is made that the order of
detention was issued in a mechanical fashion without keeping present to its
mind the question whether it was necessary to make such an order when an
ordinary criminal prosecution could well serve the purpose, the detaining
authority must satisfy the Court that the question too was borne in mind before
the order of detention was made. lf the detaining authority fails to satisfy
the Court that the detaining authority so bore the question in mind the Court
would be justified in drawing the inference that there was no application of
the mind by the detaining authority to the vital question whether it was
necessary to preventively detain the detenu." 1039
9. The rule laid down is that a prosecution
or the absence of A it is not an absolute bar to an order of preventive
detention; the authority may prosecute the offender for an isolated act or acts
of an offence for violation of any criminal law, but if it is satisfied that
the offender has a tendency to go on violating such laws, then there will be no
bar for the State to detain him under a Preventive Detention Act in order to
disable him to repeat such offences. What is required is that the detaining
authority is to satisfy the Court that it had in mind the question whether
prosecution of the offender was possible and sufficient in the circumstances of
the case. In some cases of prosecution it may not be possible to bring home the
culprit to book as in case of a professional bully, a murderer or a dacoit, as
witnesses do not come forward to depose against him out of fear, or in case of
international smuggling, it may not be possible to collect all necessary
evidence without unreasonable delay and expenditure to prove the guilt of the
offender beyond reasonable doubt.
10. In the instant case it has been submitted
by Mr. Jethmalani that on the facts of this case, the prosecution under the
ordinary law would have been sufficient; resort to preventive detention on the
face of it was manifestly unreasonable. In the counter affidavit it has been
stated by the detaining authority that it was aware that the detenu was being
prosecuted under the ordinary law; but it was satisfied that the prosecution
under the ordinary law was not sufficient for preventing the detenu from
indulging in similar activities in future. This statement of the authority
satisfies the requirement of the rule laid down by this Court hl [1980] I
S.C.R. 54 (supra).
11.(III) The last submission of learned
counsel was that the detention was mala fide and discriminatory. The submission
WIS that it was opposed to the guidelines laid down and publicised by the
Government; under the said guidelines, it was submitted, detention was not
ordered except when the activities of the person concerned were a part of an
organised crime involving conspiracy and continued activities; the guidelines
did not permit or envisage detention for isolated act of contravention of the
Customs Law. In reply it has been stated in the counter affidavit that the
detaining authority was aware that the detenu came to the adverse notice of the
Customs Authorities for the first time in the smuggling incident dated 8th/
1040 9th January, 1981; that the activities of the detenu on the basis of which
prognosis was made was reasonably suggestive of a repetitive tendency or
inclination on the part of the detenu to act likewise in future; that the order
of detention was essentially a precautionary measure and was based on the
reasonable prognosis of the future behaviour of a person based on his past
conduct judged in the light of the surrounding circumstances. It has further
been stated:
"Such past conduct may consist of one
single act or of a series of acts. I say that large quantum or Palladium metal
brought, the nature in which it was concealed coupled with the detenu's conduct
in not disclosing the fact when questioned by the customs authorities clearly
demonstrate potentiality for continued criminality and indicate previous
practice, experiment and expertise. In the given case even the first act of
this kind can be termed to be the beginning of continuing criminal activity. I
say in the present case the nature of the act and its magnitude clearly justify
an inference that if the detenu was not detained he is likely to indulge in
commission of such acts in future. I say that the detenu admitted in his
statement dated January 9, 1981 that he wanted to smuggle the goods under
seizure as he wanted to sell the same in Bombay market and earn profit.
12. The past conduct or antecedent history of
a person can appropriately be taken into account in making a detention order.
It is indeed largely from prior events showing tendencies or inclinations of a
person that an inference can be drawn whether he is likely in the future to act
in a manner prejudicial to the maintenance of supplies and services essential
to the community or his act of violation of foreign exchange regulations and
his smuggling activities are likely to have deleterious effect on the national
economy.
13. With regard to the confidential
guidelines, the averment of the detaining authority in the counter affidavit is
that the guidelines given by the Government were secret and confidential
instructions which had no binding force;
but yet they were taken into consideration
while passing the order of detention.
The guidelines were necessarily of a
confidential nature and were intended to guide the Customs or Intelligence
officers as to how to act and what to do in the detection and apprehension of
smugglers. They do not have any force of law; and there cannot be any valid
complaint of discrimination? if any, in arresting and bringing to book a
particular offender under the Customs Act or under A any Preventive Detention
Law.
14, With regard to the inquiry of the detenu
as to whether the facts narrated in paragraph 3 in the document containing the
grounds of detention were taken into consideration, it may be said with
justification that although paragraph 3 may not constitute an independent
ground of detention, there cannot be any objection if this fact possibly
entered into the subjective satisfaction of the detaining authority before
passing the order of detention. The detaining authority had of necessity to
take into account all the relevant materials placed before it and after due
consideration thereof might justifiably come to the conclusion that the activities
of a particular person were such that he had a tendency to repeat his illegal
activities. In the case in hand, the detenu himself admitted in his confession
that he has his home in Bombay and business in Muscat. His passport disclosed
that he was frequently shuttling between Muscat and India. Admittedly he
smuggled the palladium in question in order to make profit by selling it to
customers in India. The detaining authority would be within its jurisdiction to
take into consideration all these facts and subjectively come to a satisfaction
whether or not the offender may be repeating his activities.
15. It is needless to say that the High Court
under Article 226 of the Constitution and the Supreme Court either under
Article 32 or under Article 136 of the Constitution do not sit on appeal on the
orders of preventive detention. The normal law is that when an isolated offence
or isolated offences is or are committed, the offender is to be prosecuted.
But, if there be a law of preventive detention empowering the authority to
detain a particular offender in order to disable him to repeat his offences, it
can do so, but it will be obligatory on the part of the detaining authority to
formally comply with the provisions of Sub- Article (5) of Article 22 of the
Constitution of India. The High Court under Article 226 and the Supreme Court
under Article 32 has to see whether the formalities enjoined by Article 22(5)
have been complied with by the detaining authority. If the formalities have
been complied with, the Court cannot examine the materials before it and find
that the detaining authority should not have been satisfied on the materials
before it and detained the detenu under the Preventive Detention Act, for, that
is the function of an appellate Court 1042
16. In the instant case, we are not satisfied
that the detaining authority has violated either the relevant provisions of the
Constitution or any of the provisions of the Act. This petition has no merit
and is rejected.
P.B.R. Petition dismissed.
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