Prakash Chandra Mehta Vs. Commissioner
and Secretary Government of Kerala & Ors [1985] INSC 87 (12 April 1985)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)
CITATION: 1986 AIR 687 1985 SCR (3) 697 1985
SCC Supl. 144 1985 SCALE (1)813
CITATOR INFO: RF 1986 SC2177 (47) D 1987
SC1192 (12) RF 1988 SC 723 (9) F 1990 SC 176 (28) RF 1990 SC 605 (11,12) RF
1990 SC1272 (11) D 1991 SC1375 (4)
ACT:
Constitution of India 1950 Act. 22 Cls. (4)
& (5)- Preventive detention-Permissibility of-Safeguards to be followed by
the detaining authority-Rights of detenu-What are-Grounds for detention-What
are Conservation of foreign Exchange and Prevention of smuggling Activities Act
1974 SS 3 and 5A-Detention-Grounds of detention-Communication in a language
understood by the detenu at the earliest-Afford the detenu an opportunity to
make a representation-Confession statements under s 108 of the Customs Act
1962-Retraction by detenu-Non-consideration by detaining authority but considered
by Advisory Board- Whether vitiates detention Words & Phrases-Meaning of
" Grounds" -Content of in detention order-Not mere factual inferences
plus factual material-Constitution of India 1950 Article 2 (5).
HEADNOTE:
The petitioner in his three writ petitions
under Art.
32 challenged the detention orders made
against his father, sister and brother under the Conservation of Foreign
exchange and Prevention of Smuggling Activities Act 1974.
On the basis of intelligence reports, the
customs officials searched the room of the Hotel where father and
daughter-Venilal D. Mehta and Pragna Mehta were staying. The search led to the
recovery of 60 gold biscuits of foreign origin from the suit case belonging to
the daughter. Since both of them had no valid document to prove the nature Or
import of the gold biscuits to..
698 India and for their legal possession,
there was contravention of the Customs Act, 1962 and the Gold Control Act,
1960, and, therefore, liable for confiscation. Both were arrested and
statements recorded.
In the meanwhile Bharat Mehta, another son of
the father, -detenu who had come from Calcutta to arrange for bail was arrested
on 4th May 1984 by the Central Excise and Customs Officials after his room in
the Hotel, was searched and Indian currency notes amounting to Rs. 24,865 were
seized, which he allegedly had brought for meeting the legal expenses for
securing release of his father and sister on bail. All the three were remanded
to jail custody. They retracted their statements made before the Central Excise
and Customs Officers alleging that they were made at the dictates of the
customs officers.
Pragna Mehta was served with a detention
order under the Conservation of foreign Exchange and Prevention of Smuggling
Activities Act 1974 under s. 3(1) (iii) on 20th June 1984 and was served with
the grounds of detention in English language. Hindi translation of the grounds
of detention was served on 30th June, 1984. Venilal Mehta and his son Bharat
Mehta were served with detention orders under s. 3(1) (iii) and (iv) of the Act
on 20th June, 1984 and on 1) 25th June, 1984 the grounds of detention were also
served on them. The grounds of detention were in English language while some of
the accompanying documents were in Malayalam.
The detenus made representations for the
revocation of their detention. They appeared before the Advisory Board on 6th
August, 1984. The advisory Board reported that there was sufficient cause for
detention of the detenus and accordingly the Govt. confirmed their detention
Orders on 13th August, 1984.
All the three detention orders have been
challenged contending: (1) that the grounds were not communicated to the
detenus in a language understood by them, (2) that the retraction of the
confessions or statements made under s.
108 of the Customs Act, 1962 had not been
taken into consideration, (3) that there was delay in serving the grounds upon
the detenus, (4) that the detenus were not allowed to be represented properly
before the Advisory Board, (5) that the fact of retraction of the confessions
having not been taken into consideration the proceedings were vitiated, and (6)
that the detaining authority did not independently consider the representations
of the detenus but mechanically followed the advice of the Advisory Board.
Dismissing the Petitions, ^
HELD: 1. The procedural safeguards have been
complied with as far as practicable. There are no merits in the fancied
grievances of the detenus .[732]
2. Article 22 of the Constitution ensures
protection against arrest and detention except in certain prescribed
circumstances and conditions. Art. 22(4) 699 stipulates that no law providing
for preventive detention shall authorise the detention of a person for a longer
period than three months unless (a) Advisory Board has reported before the
expiration of the said period of three months that there is in its opinion
sufficient cause for such detention and (b) such person is detained in
accordance with the provision of any law made by the Parliament under sub-cls.
(a) and (b) of cl. (7). [618D-G] Clause (5) of Art. 22 provides that the
grounds of detention must be communicated to the detenu as soon as may be and
that he should be afforded the earliest opportunity of making a representation
against the order. There. fore, it must follow as an imperative that the
grounds must be communicated in a language understood by the person so that he
can make an effective representation. [719; 72013-C] Harikisan v. The State of
Maharashtra & Others, [1962] 2 Supp. SCR 918. C In the instant case, the
facts revealed that the detenu Vanilal Mehta was constantly accompanied and was
in the company of his daughter as well as his son-both of whom knew English
very well. The father signed his mercy petition in Gujrati which was written in
English, accepting the guilt of his involvement in smuggling. There is no rule
of law that common sense should be put in cold storage while considering
constitutional provisions for safeguards against misuse of powers by
authorities though these constitutional previsions should be strictly
construed. He was in any event given by 30th June 1984 the Hindi translation of
the grounds of which he claimed ignorance. The gist of annexures which were
given in Malayalam language had been stated in the grounds. That he does not
know anything except Gujrati merely ipse dixit of father -detenu and is not the
last word and the Court is not denuded to its powers to examine the truth The
Court is not the place where one can sell all tales. The detaining authority
came to the conclusion that he knew both Hindi and English. It has been stated
so in the counter-affidavit.
The circumstances indicate that father
-detenu was merely feigning ignorance of English [720C-H; 720 A-B] In the
instant case, the grounds were given on 20th June, 1984 following the search
and seizure of gold biscuits from room of detenu Venilal Mehta in the Hotel in
his presence and in the background Or the mercy petition, he was in constant
touch with his daughter and sons and there is no evidence that these people did
not know Hindi or English.
Indeed they knew English as well as Hindi. It
is difficult to accept the position that in the peculiar facts of this case,
the grounds were not communicated in this sense the grounds of detention were
not conveyed to the detenu Venilal. Whether grounds were communicated or not
detenu upon the fact and circumstances of each case. [712 D-F] Hadibandhu Das
v. District Magistrate, Cuttack & Anr.
[1969] 1 SCR 227, Nainmal Partap Mal Shah v.
Union of India and Ors [1980] 4 SCC 427 and Ibrahim Ahmad Batti v. State of
Gujrat & ors. [1983] 1 SCR 540 distinguished.
700 4 Article 22(5) of the Constitution has
two elements (i) communication of the grounds on which the order of detention
has been made and (ii) opportunity of making representation against the order
of detention. Communication of the grounds pre-supposes the formulation of the
grounds and formulation of the ground requires and ensures the application of
the mind of the detaining authority to the facts and materials before it that
is to say to pertinent and proximate matters in regard to each individual case
and excludes the element of arbitrariness and automatism. [725E- G]
5. The "ground." under Art 22(S) of
the Constitution do not mean mere factual inferences but mean factual
inferences plus factual material which led to such factual inferences The
concept of'grounds'., therefore' has to receive an interpretation which will
keep it meaningfully in tune with the contemporary notions of the realities of
the society and the purpose of the Act in question in the light of concepts of
liberty and fundamental freedom guaranteed by Art. 19(1) 21 and 22 of the
Constitution[725-H; 726 A-B] Smt. Shalini Soni Etc. v. Union of India &
Ors. [1981] 1 SCR 962 relied upon.
6. A democratic Constitution is not to be
interpreted merely from a lexicographer's angle but with a realisation that it
is an embodiment of the living thoughts and aspiration of a free people. The
concept of "grounds" used in the context of detention in Art. 22(5)
of the Constitution and in sub s. (3) of s.3 of COFEPOSA therefore has to
receive an interpretation which will keep it meaningfully in tune with a
contemporary notion. While the expression "grounds" for that matter
includes not only conclusion of facts but also all the "basic facts"
on which those conclusions were founded, they are different from subsidiary facts
or further particulars or the basic facts.[726C-E] Hasmukh S/o Bhagwanji M.
Patel v. The State Of Gujarat
In the instant ease the grounds of detention
is the satisfaction of the detaining authority that with a view to preventing
the detenu from acting in any manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to preventing the detenu from
inter alia, dealing in smuggled goods otherwise then by engaging in
transporting or concealing or keeping the smuggled goods or engaging in
transporting or concealing or keeping smuggled goods the detention of the
detenu us necessary This satisfaction was arrived at an inferences from several
factors. One of them is that the retraction from the statements made in the
confession or statements under s. 108 of the Customs Act had not been taken
into consideration by the detaining authority while passing detention order.
The question is whether even if the facts stated in the confession are
completely ignored then the inferences can still be drawn from other
independent and objective facts mentioned in this 701 case , namely , the fact
of seizure of 60 gold biscuits from the suitcase of the daughter in the
presence of the father which indubitably belonged to the father and admitted by
him to belong to him for which no explanation has been given and secondly the
seizure of the papers connected with other groups and organisations to whom
gold has been sold by the father are relevant grounds from which an inference
can reasonably be drawn for the satisfaction of the detaining authority for
detaining the detenus for the purpose of Sec.
3(1) (iii) and 3(1)(iv) The impugned order
cannot be challenged merely by the rejection of the inference drawn from
confession. [726E-H; 727A-C] 7.(i) The Court is not concerned with the
sufficiency of the grounds. It is concerned whether there arc relevant
materials on which a reasonable belief or conviction could have been
entertained by the detaining authority on the grounds mentioned in s. 3(1) of
the Act. Whether other grounds should have been taken into consideration or not
is not relevant at the stage of the passing of the detention order. If that in
the position then in view of s. 5A of the Act there was sufficient material to
sustain this ground of detention. [727D-E] (ii) When detention under s. 3 Or
the Act is only for the purpose of prevention of smuggling and all the grounds
, whether there are one or more , would be relatable only to various activities
of smuggling and no other separate ground which could deal with matters other
than smuggling could be conceived of because the act of smuggling covered
several activities each forming a separate ground of detention and the Act
dealt with no other act except smuggling , Whenever allegations of smuggling
were made against a person who was sought to be detained for preventing further
smuggling there is bound to be one act or several acts with the common object
of smuggling goods which was sought to be prevented by the Act.' It would ,
therefore , not be correct to say 1 that the object of the Act constituted the
ground for detention. In the instant case , however , the authorities concerned
came to the conclusion that the detenus were engaged in smuggling , in support
of the same they relied on several factors namely: (1) the search and seizure
and recovery of 60 gold biscuits , (2) the fact that the importation of the 60
gold biscuits could not be explained by the detenu Venilal , (3) the secretive
manner in which the said gold biscuits were kept and (4) the connection with
the various dealers and the statements of the employees of the dealers that the
father and the sons used to come with gold bars. These materials were in
addition to the statements and concessions made under s. 108 of the Customs Act
by the father , the sons and the daughter. So even if the statements made by the
n are ignored and obliterated , the other facts remain and these are- good
enough materials to come to prima facie belief that detention of the detenus
was necessary.
State Or Gujrat v. Chamanlal Manjibhai Soni
[1981] 2 SCR 500 followed.
In the instant case , there was no request
for consultation with the Advocate. There is no case of non- production of the
detenu in spite of intimation by the Advocate to the Customs Officers before a
Magistrate. The confessional statement was not the only fact upon which the
detaining authority had passed an order. In the premises even if the
confessional statements which were ret- 702 racted as such could not be taken
into consideration , there are other facts independent of the confessional
statement which can reasonably lead to the satisfaction that the authorities
had come to. [729E-G] Ashadevi , wife of Gopal Chermal Mehta (Detenu) v. K. Shiveraj
Addl. Chief Secretary to the Government of Gujrat & Anr. [1979] 2 SCR 215 ,
distinguished.
In the instant case , there was no delay in
serving the grounds upon the detenus. The father-detenu was detained on 20th
June , 1984. As required under s.8 (3) of the Act , the case of the detenu was
referred to the Advisory Board on 18th July , 1984. The representations
submitted by the detenu were also forwarded to the Advisory Board for
consideration. The services of two persons were utilised by the Board in
understanding the statement of the detenu and deciphering the representation in
Gujrati submitted by detenu Venilal Mehta to the State Government which was
also forwarded to the Board. Therefore , it cannot be said that detenus have
not been given proper facility to be represented before the Advisory Board. Tee
allegation that the detaining authority did not independently consider the
representation of the detenu but mechanically followed the opinion of the
Advisory Board cannot be sustained in view of the fact and circumstances of
this case.[759H; J30 A-D] & CRIMINAL ORIGINAL JURISDICTION : Writ petition
(Criminal) NOS.1721 , 1722 and 1724 of 1984.
Under Article 32 Of the Constitution of
India.
P. Govindan Nair , G.L. Sanghi , Farook M.
Razaak and H.K. Puri for the Petitioners. T.S. Krishnamurthy Iyer and E.M.S.
Anam for Respondent Nos. 1 and 2. N.C. Talukdar and , R.N. Poddar for the
Respondent NO.3.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI , J. One allegedly Venilal D.
Mehta is the father. Miss Pragna Mehta is the
daughter and Bharat Mehta is the son. They all have been detained under the Pro
visions of Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act , 1974 (hereinafter referred to as the 'Act') , by virtue of an
order dated 19th June , 1984.
703 Their detentions are challenged in three
writ petitions under Article 32 of the Constitution , filed by Prakash Chandra
Mehta , another son of Venilal D. Mehta and brother of Miss Pragna Mehta and
Bharat Mehta.
The facts of these cases basically more or
less are the same with certain minor variations which would be noticed.
On the 2nd May , 1984 , the father and
daughter Venilal D. Mehta and Pragna Mehta were arrested by the officers of the
Central Excise and Customs , Cochin on all accusation of having in their
possession 60 gold biscuits alleged to be of foreign origin. After their arrest
, the father and his daughter were taken to the office of the Central Excise
and Customs , Cochin where statements were made on their behalf. It is ,
however , the allegation of the petitioner that such statements were obtained
by use of third degree method , molestation of the daughter , threat and
intimidation. We are not concerned with the truth or otherwise of such
allegation for the purpose of this application. The statements of the daughter
as well as the father were written by the daughter. It is further alleged in
the petition that the statement was written by the daughter as dictated by the
officers concerned. The father , Venilal D. Mehta put his signature in English
as 'Balvant Shah'. It must be noted that statement in English was written by
the daughter. lt is alleged that the father and the daughter told the officers
concerned that the correct name of the father was Venilal Mehta. It is the case
of the father in the petition on his behalf that he does not understand , read
or speak or write English but he can only sign his name in English. After the
said statement. the father and the daughter were taken to the Hotel Dwarka
where they were kept in separate rooms under the guard of the officers. [t is
alleged on behalf of the father and the daughter that no legal assistance was
allowed in spite of repeated requests.
On the next day , the father and the daughter
were brought to the office of the Central Excise and Customs , Cochin , where
once again , the daughter wrote a statement on her behalf and on behalf of her
father. It is alleged that neither the said statement was explained to the
father nor a copy was supplied. After the said recording of the statement ,
both the father and the daughter 704 were kept detained at the Customs Department.
In the meanwhile one Bharat Mehta , another
son of the father Venilal Mehta who had come from Calcutta to arrange for bail
was brought under arrest by the officers of the Central Excise in the presence
of the father and was asked to identify the father and his sister whereupon
Shri Bharat Mehta identified Shri Venilal D. Mehta as his father and Miss
Pragna Mehta as his sister. Upon such identification , Miss Pragna Mehta wrote
down a third statement-one on behalf of her father and one on her own behalf.
It is alleged that such statements were dictated by the officers of the Central
Excise.
Bharat Mehta also wrote down a statement on
his behalf which is similarly alleged to have been written as dictated by the
officers. Then all the three aforesaid persons Venilal D. Mehta , Miss Pragna
Mehta and Bharat Mehta were produced before the Acting Chief Judicial
Magistrate on 5th May , 1984 at 8. 30 P.M. at his residence at Vanala and were
reminded to jail custody.
So far as Bharat Mehta is concerned , on 2nd
May , 1984 , he was in Calcutta and he was informed by his brother from Bombay
that his father Venilal Mehta and his sister Pragna Mehta had been arrested and
upon hearing that he left for Bombay and arrived in Bombay by the evening
flight. On the following day i. e. On 3rd May. 1984 , Bharat Mehta left on the
morning flight for Cochin for arranging bail for his father and sister. At the
Cochin Airport , he was apprehended by the officers of the Central Excise who
desired to interrogate him and was thereupon brought to the office of the
Central Excise and was interrogated about his complexity in the smuggling of
gold.
According to Bharat Mehta , as he had nothing
to do with the smuggling of gold , he denied having any connection with the
same. Thereafter he was allowed to go. On 4th May , 1984 the room in the Indian
Airlines Hotel. Ernakulam where he was staying was searched by the officers of
the Central Excise and Customs. Though Bharat Mehta states that nothing
incriminating was found , the Custom Authorities had seized Indian currency
notes amounting to Rs. 24,865 which sum , he alleged to have brought for
meeting the legal expenses. Thereafter , he was arrested and taken to identify
his 705 father and sister as mentioned hereinbefore.
When all the three were remanded to jail
custody , the father , the daughter and the son retracted their statements.
They made complaints to the Collector of Central Excise and Customs about the
manner in which their statements were obtained. Application for bail was moved
on 7th May , 1984 before the learned Acting Chief Judicial Magistrate Miss
Pragna Mehta was allowed interim bail till 7th May , 1984. On 8th May , 1984
the bail application was rejected. After the cancellation of her bail
application , Pragna Mehta moved an application under section 439 of the Code
of Criminal Procedure , 1973 before the Kerala High Court and the High Court
was pleased to grant bail on certain conditions. She was served with the
detention order on 20th June , 1984 , and the detenu was served with the
grounds of detention in English language. Hindi translation of the grounds of
detention was served on , the detenu on 30th June , 1984.
The father's bail application was , however ,
rejected by the Kerala High Court. The father was transferred on 24th May ,
1984 from sub-jail , Ernakulam.
to the General Hospital , Ernakulam because
he had become ill. He was thereafter admitted in the General Hospital.
The son's bail application was also rejected
by the High Court of Kerala and he was also transferred to the General ,
Hospital , Ernakulam because he became ill.
Thereafter on 6th June , 1984 , application
for grant of bail was moved on behalf of the father and the son before the
Sessions Judge and the said application was rejected on 12th June , 1984 in
respect of both of them.
Both Bharat Mehta and Venilal Mehta were
transferred to the Medical College Hospital , Kottayam for treatment. On 20th
June 1984 , the father and the son while in custody and undergoing treatment in
Medical College Hospital were served with the detention orders under the said
Act.
Thereafter they were transferred to the
Central Prison , Trivandrum.
On 25th June , 1984 , the grounds were served
on all three of them. It is alleged that the said grounds were served nearly at
midnight and said grounds served were written in English while 706 some of the
accompanying documents about six in number were In Malayalam.
On 25th July , 1984 Miss Pragna Mehta made an
application praying , inter alia that the order of detention by revoked and she
may be set at liberty. On 4th August , 1984 , she wrote a letter to the
Chairman , Advisory Board seeking the assistance of a legal practitioner or a
friend during the Advisory Board proceedings. It is alleged that on or about
6th August , 1984 , she was informed at 9.00 A.M. for the first time that she
had to appear before the Advisory Board at 10.00 A.M.
It is her case that she appeared without
being given an opportunity of being assisted by any friend. She further alleges
that she being the only lady detenu in solitary confinement , after coming back
from the Advisory Board meeting made a representation to the detaining
authority for certain jail facilities namely , facility of home cooked food,
reading and writing materials , frequent interviews with relations and friends
, facility of writing letters to mother in Gujrati language , sewing and
embroidery materials and hygienic toilet facility.
She made a representation to the Central
Government on 9th August. 1981 for revocation of her detention order.
On 11th August , 1984 , a letter was received
by her from the Commissioner and Secretary to Government , Government of Kerala
respondent No. 1 that there was no provision for home cooked food and there was
no solitary confinement , that interviews , and all outgoing and incoming
letters are required to be censored and no special restrictions have been
imposed upon her. She alleges that on 13th August , 1984 , she came to know
from the jail authorities that the Advisory Board had confirmed the detention
of her and of brother and father for one year and that the opinion of the
Advisory Board was published in the local newspaper Mothrubhumi on 13th August
, 1984.
On 23rd August , 1984 she received a letter
that her representation dated 25th July , 1984 had been rejected On 24th August
, 1984 she received a letter from the Under Secretary to the Government of
India in terms whereof she was informed that her repre- 707 sentation dated 9th
August , 1984 addressed to the Central Government had been rejected.
On 23th August , 1984 , she was served with
an order issued by respondent No. 1 whereby she was informed that the Advisory
Board in its report had expressed that there was sufficient cause for detention
of the detenu and accordingly , the Government confirmed the order of detention
for a period of one year.
So far as father , Venilal Mehta is concerned
, it is his case that Hindi translation of grounds of detention was served on
him on 30th June , 1984. While supplying the Hindi translation Of the grounds ,
the annexures being annexure Nos. 1. 6 , 8 , 27 , 38 and 47 of the list of
documents were supplied in Malayalam. It is the case of the father that he does
not know how to read , write or speak English or Hindi or Malayalam. He can
only sign his name in English. But thereafter on 27th May , 1984 he made a
representation in Gujrati to the detaining authority praying that he was unable
to read , write either English or Hindi or Malayalam and the grounds of
detention may be given to him duly translated in Gujrati.
On 5th August , 1984 , he was informed by a
letter dated 4th August , 1984 that his representation could only be examined
after the same was translated into English. On 5th August , 1984 he made a
representation to the detaining authority praying that his detention order may
be revoked.
He was informed on 6th August , 1984 at 9. 15
A. M. that he would have to appear before the Advisory Board at 10.00 A.M.
He appeared before the Advisory Board and the
Advisory Board had confirmed his order of detention on 13th August , 1984.
He received a letter on 25th August , 1984
that his request for supply of grounds of detention and connected documents was
not considered necessary by the Government. The representation dated 9th August
, 1984 was rejected and the same was communicated to him by a letter dated 28th
August , 1984 , and he was informed on 31st August , 1984 that the Advisory
Board was of the opinion that there was sufficient ground for detention. He was
also informed by a letter dated 10th August , 1984 that his representation
dated 5th August , 1984 had been rejected.
More or less similar is the Case of the son
except that he 708 did not plead ignorance of any language English or Hindi.
As mentioned hereinafter , all the three
detention orders have been challenged by Prakash Chandra Mehta , the son of
Venilal Mehta and brother of Bharat Mehta and Pragna Mehta by these three
separate writ petitions.
The father had on or about 30th June , 1984
made a representation for mercy. It was written in English but signed in
Gujrati. It is the case of the father that his son brought this representation
prepared by his wife and without understanding he signed the representation for
forwarding the same to the proper authorities. The detenu Venilal Mehta , the
father and Bharat Mehta , the son , were detained on grounds mentioned in
section 3 (1) (iii) and 3 (i) (iv) of the Act and the detenu Miss Pragna Mehta
, the daughter was detained on grounds mentioned in section 3 (i) (iii) of the
said Act. The said orders were dated 19th June , 1984 were served on 20th June
, 1984 alongwith the grounds in English It was further mentioned in the
communications containing the said grounds that the said grounds were being
communicated to them for the purpose of Article 22 (5) of the Constitution and
they were given opportunities to make representation against the said grounds.
The grounds of detention stated that on the
basis of intelligence received a search of room No. 316 of Dwaraka Hotel at
M.G. Road , Ernakulam , was conducted and after being identified it was stated
that the Customs authorities had reason to believe that gold of foreign origin
was kept in the room in the custody of B.V. Shah in contravention of the
provisions of the Customs Act , 1962 and Gold Control Act , 1960. The occupants
of the room , the father and the daughter had informed that they were not
having any such articles. Thereafter the Superintendent and the party made a
through search in the presence of the independent witnesses , the occupants and
the accountant of the hotel , Mr. Jayaprakash. In addition to the furniture in
the room there were three suitcases and one vanity bag in side the room. On
enquiry , the father informed that two of the suitcases belonged to him and the
third suitcase and the vanity bag belonged to his daughter. The Superintendent
requested the daughter to identify her suitcase and accordingly she identified
a brown coloured suitcase marked Aristocrat and vanity bag as hers. The two 709
suitcases claimed to be of the father were examined by the Superintendent.
There were no gold or incriminating documents in the suitcases. The
Superintendent asked the daughter to open her suitcase and accordingly she
opened the suitcase by taking a key from her vanity bag. When she opened , the
suitcase was found to contain one inflated air pillow and certain personal
clothings- Beneath the air pillow and the personal clothings , there was some
thing warped in a Turkish towel. When the Turkish towel was removed three paper
packets with abnormal weight were found.
The Superintendent enquired Or the daughter
about the contents of the three packets and she had remained silent.
Immediately the father disclosed that the
packets contained gold biscuits of foreign origin. When the Superintendent
asked about the quantity , the father informed that the three packets totally
contained 60 gold biscuits , with 25 gold biscuits each in two bigger packets
and 10 gold biscuits in the small packet. All the three packets were covered
with paper bearing printed English letters. The three packets were opened and
examined and found to contain 60 gold biscuits , with 25 gold his suits each in
two packets and 10 gold biscuits in the third packet. All the 60 gold biscuits
were thoroughly examined , weighed and purity tested by a certified goldsmith.
Each gold biscuits was found to be of 24 carat purity with a weight of 116.5
grams.
The total weight and other particulars of the
said gold biscuits and other particulars of certain other materials found were
mentioned. It is unnecessary to set these out in detail. The persons of both
the father and the daughter were searched. Nothing incriminating was found from
the daughter , but certain documents which are noted as incriminating were
found from the person of father , the particulars of the said documents have
also been set out in that: grounds.
It is not relevant for our present purpose to
set these out in detail.
The Superintendent asked the daughter and the
father whether they were having any valid documents to prove the nature of
import and prove the legal possession of the 60 gold biscuits of foreign origin
recovered from the suitcase claimed to be of the daughter. She replied that she
did not have any such document and that she carried the above said gold
biscuits from Bombay to Cochin as directed by her father. The father also said
that he had no valid documents to prove the nature of import of the 60 gold
biscuits to India and for the possession of 710 the same and that the daughter
carried the gold biscuits from Bombay to Cochin as directed by him.
In the premises it was stated that there was
reasonable belief that 60 gold biscuits were smuggled into India and acquired
and possessed and dealt with in contravention of the Customs Act , 1962 and the
Gold Control Act , 1960 and hence were liable for confiscation.
The show cause notice further stated that the
entire articles in the suitcase from which the gold biscuits were recovered ,
the key of the suitcase and the documents recovered from the vanity bag of Miss
Pragna Mehta and from the shirt pocket of Venilal Mehta (B.V. Shah) were also
seized for further necessary action. The value of the gold biscuits seized came
to round about Rs. 14 lakhs. B.V Shah alias Venilal Mehta , Miss Pragna Mehta
and the independent 1) witnesses have signed on the documents and on the
mahazar. Mr. Jayaprakash accountant of Dwaraka Hotal had also appended his
signature in the mahazar.A copy of the mahazar was also given to B.V. Shah
alias Venilal Mehta and his acknowledgement was obtained on the original.
Ground I (b) stated about the search on
intelligence report of Hotel Airlines at M.G. Road , Ernakulam. It is not
necessary to set out in detail the documents and the currency notes seized ,
particulars whereof were stated in the said show cause.
In Ground I (c) , the search and seizure of
Swastic Society , Bombay have been set out. Certain telephone numbers are
noted. The documents seized from this place included telephone bills installed
at the residence of Venilal Mehta and two other telephone numbers noted in the
paper. Other details of the ground and facts of the search need not be set out
in detail.
In Ground I (d) , it was stated that the
Superintendent of Customs searched premises of R.D. Mehta & Co. and certain
particulars of telephone numbers and other documents recovered were stated
therein.
In Ground I (e) , it was stated that the
Superintendent searched the silver refinery controlled by Shri Partap Sait.
Certain 711 diaries and documents are seized. The telephone of the refinery is
37144. In the documents and diaries seized from the silver refinery , phone
number 625768-the phone number of the residence of Venilal Mehta was found
entered.
In Ground I (f) , it was mentioned that
certain documents were recovered from Sadasiva Sait , the particulars whereof
arc mentioned therein the grounds. As a result of search 10 foreign made gold
biscuits weighing 116.500 grams each , 8 primary gold bars weighing 1714 gms.
and one gold piece weighing 95 gms. were
recovered from the office room. It is further stated in the show cause notice
in ground 11 (iii) that during the sight seeing trip to Cochin with family in
January , 1983 Venilal Mehta had contacted different jewellers in Cochin. Shri
Pratap Sait of Shalimar Jewellery , Cochin alone responded to the business of
Venilal Mehta.
These were entered into in the statement
signed by Miss Pragna Mehta which of course , she had retracted thereafter From
different searches at different places telephone number 37144 of Pratap Sait
(at the silver refinery of Pratap Sait) was found in various documents.
In Ground II (c) , the statements recorded under
section 108 of the Customs Act by Venilal Mehta and others were mentioned. It
is not necessary in view of the fact that these statements have been retracted
, to refer and set out the said grounds in detail.
In Ground II (f) , the interrogation of
Bharat Mehta is set out. Here also the same cannot be set out because he has
also retracted.
In Ground III , it is mentioned that Venilal
Mehta , Miss Pragna Mehta and Bharat Mehta were arrested and produced before
the then Chief Judicial Magistrate who granted permission to interrogate Shri
Venilal Mehta and Shri Bharat Mehta in the presence of Jail Superintendent.
Thereafter Bharat Mehta was interrogated and
the result of such interrogation is mentioned in Ground IV. The same again
cannot be relied on because these have been retracted.
In Ground V(1) , it was stated that Shri
Pratap Sait of 712 'Mahadev Parvathy House' was interrogated under section 108
of the Customs Act. He denied having seen Venilal Mehta or B.V. Shah. He also
denied any dealings with B.V. Shah regarding the gold biscuits.
In Ground V (2) , it was stated that Mr.
Prakash Krishnan Yadav , an employee of the silver refinery was interrogated
under section 108 of the Customs Act. He stated that his normal work in the
refinery was purifying silver.
He used to purify the gold from Shalimar
Jewellery also. He knew Bharat Mehta , Venilal Mehta and Rashmi Mehta. They
used to come to the refinery. They used to meet the younger brother of Pratap
Sait , Shri Suresh. They were doing some secret business. Suresh used to
entrust him with certain bundles of notes to be handed over to Venilal Mehta or
his sons. This he used to do. The documents seized from the refinery contained
the accounts of agriculture and grapes were written by Pratap Sait. Some times
Venilal Mehta , Bharat Mehta and Rashmi Mehta used to stay at Hotel Blue
Diamond and he had 1> met them while they were there. The telephone number
of the refinery , he stated , was 37144.
His statement was read over to him and
admitted to be correct. This statement was not retracted.
In Ground V (3) , it was stated that one Shri
Suresh Mahadeva Salunkhe S/o Mahadev Dari Salunkhe was examined under section
108 of the Customs Act. He has also given certain facts about the business of
Pratap Sait and others.
He said that Pratap was looking after Blue
Diamond Hotel. He also knew Venilal Mehta , Bharat Mehta and Rashmi Mehta. He
further stated that Venilal Mehta came to the refinery some time ago and
thereafter as per the telephonic direction of his brother , Shri Pratap Sait ,
he received some gold biscuits from him and had given these to his brother. His
brother gave a bundle of currency notes. This was repeated many times.
In Ground V (4) , it was stated that one Shri
Suresh S/o Damodharan , was interrogated under section 108 of the Customs Act.
He also stated certain facts giving the connection and the phone number of
Venilal Mehta. These have been set out in details in the ground. The
particulars of other grounds in V (5) need not be set out in detail.
713 In Ground VI (i) , it was stated that as
a follow up action , the house of Pratap Sait at Convent Junction , Cochin was
searched. No contraband goods or incriminating documents were recovered.
Shalimar Jewellery was also searched In the premises , it was stated , against
Venilal Mehta that evidence collected showed that Venilal Mehta had large scale
dealings in smuggled gold biscuits.A paper bit recovered from him on 2nd May ,
1984 , which show d the details of transaction and the particulars of the
writings of the paper have been set out in the show cause notice and it is
further stated that one Sadasiva Sait was apprehended with 2974 grams foreign
gold biscuits and the numbers shown against the letters 'S' in the paper
mentioned here in before related to the gold biscuits delivered to him by
Venilal Mehta and his sons on the dates mentioned against each. From this ,
according to the respondent , it was evident that the other numbers shown were
also related to gold biscuits- As set out before , Sadasiva Sait in his
statement stated that letters 'P' might be in relation to Pratap Sait and
letter 'B` might be in relation to Bhim Rao.
From the aforesaid , it was stated that it
was evident that Venilal Mehta , and in the case of the other two , son and the
daughter more or less similar grounds are made , was dealing in smuggled gold
biscuit and that 60 gold biscuits weighing 6990 grams and valued at Rs. 14
lakhs were seized and that Venilal Mehta , sons Rashmi Kanth Mehta and Bharat
Mehta and Miss Pragna Mehta were actively engaged in the business of smuggled
foreign gold biscuits. Venilal Mehta was the master brain behind this
business.A list of documents was annexed. The search list and the deposition
and necessary documents , the panchnama and he statements were also annexed
with the show cause notice.
One of the documents which is annexed to the
affidavit in opposition of the respondents is a mercy petition which is
annexure R-1 dated 30th June , 1984 addressed to the Secretary and Commissioner
, Home & Vigilance , Home Department , Government of Kerala , Trivandrum
through the Superintendent , Central Jail , Trivandrum. In that he stated as
follows:- "I , Venilal M Mehta , beg to request you to give kindly and
sympathetic attention to the following few 714 lines and render mercy to me.
I am an old man of 60 years. I had my
peaceful life as a business man and commanded respect in the business circle
and friends. I myself am surprised to understand what prompted me to involve in
such activity as dealing in Imported Gold. My financial and social status was
unblemished during all these years of my life. I would not say it was a greed
it was only the destiny that played this part.
Looking to my old-age and unstinted career up
till now , I beg you to show mercy on me and t o revoke the order of detention
under COFEPOSA. I assure you that never in my life to come , I will indulge in
any such activity there are detrimental to the nation as a whole and me in
particular.
Thanking you in anticipation of your favours
, Yours faithfully , Trivandrum , Sd/- 30th June , 1984. (Venilal M.
Mehta)" It was written in English but signed in Gujrati. It was stated as
mentioned before that it was signed without understanding as this was sent by
the wife of the detenu , Venilal Mehta.
The charges against the daughter were under
section 3 (1) (iii) , and against the father , Venilal Mehta and the son ,
Bharat Mehta , these were under section 3 (1) (iii) and 3 (1) (iv) of the said
Act. The relevant provisions of section 3 of the said Act reads as follows:-
"3. Power to make orders detaining certain persons- (1) The Central
Government or the State Government or any officer of the Central Government ,
not below the rank of a Joint Secretary to that Government , specially em
powered for the purposes of this section by that Government , or any officer of
a State Government , not below the rank 715 of a Secretary to that Government ,
specially empowered for the purposes of this section by that Government may ,
if satisfied , with respect to any person (including a foreigner) , that , with
a view to preventing him from' acting in any manner prejudicial to the
conservation or augmentation of foreign exchange or with a view to preventing
him from- (i) XXXX (ii) XXXX (iii) engaging in transporting or concealing or
keeping smuggled goods , or (iv) dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping smuggled goods , or (v) XXXX
it is necessary so to do , make an order directing that such person be
detained" Before we consider the submissions on behalf of the detenus in
this case , certain board facts have to be borne in mind. Search of room No.
316 of Dwarka Hotel M.G. Road , Ernakulam , by the Superintendent of the
Central Excise and Customs , Cochin stands demonstrated. It also cannot be
disputed that the occupants of the room at the time of search were Venilal
Mehta alias B.V. Mehta and daughter Pragna Mehta. 60 gold biscuits were
recovered from the suitcase belonging to Miss Pragna Mehta. Details have been
mentioned in Ground I(a) , Panchnama regarding the search and seizure was
prepared and was signed by the daughter and the father and attested by
independent witness-one of being the accountant of the Hotel Secondly , B.V.
Shah was interrogated and he made certain statements. On 2nd May , 1984 , there
was search of the house of Pratap Sait at Ernakulam. On the same day , Shalimar
Jewellery Fixed Deposit Door No. 37/8 , Broadway , Cochin was searched , The
statements of B.V. Shah or Venilal Mehta , Pragna Mehta and Bharat Mehta under
section 108 even if these are ignored , there 716 were searches and statement
by one Shri S. Kumar and there was also search on 14th May , 1984 of the
residential quarters of Venilal Mehta at Bombay where telephone having No
625768 was installed. This telephone number tallied with certain papers of
Pratap Sait and other houses mentioned here in before.
There was search of the premises of Venilal
Mehta in the name of R.D. Mehta & Co. Bombay. There also the telephone
numbers 339774 and 338286 were found installed.
These tallied with the telephone numbers
found in the papers in other houses The documents recovered from R.D. Mehta
included telephone bills of phone No. 625768 installed at the house of Venilal
Mehta which showed that from the said phone trunk calls were booked to Cochin
telephone Nos. 37144 and 33221 Ernakulam , 37144 is the telephone number of
Silver Refinery and 33221 is the telephone number of Blue Diamond Hotel
controlled by Pratap Sait.
The search of Silver Refinery owned by Pratap
Sait was made on 21st May , 1984. Two diaries and certain documents were
seized.A Panchnama was prepared. In the diary seized from the Silver Refinery ,
telephone No. 625768 of the residence of Venilal Mehta was found entered.
Then there was statement of Prakash Krishna
Yadav v , one of the employees of Silver Refinery where he had stated Venilal
Mehta , Bharat Mehta and another son of Venilal M Mehta used to come to
Refinery. He had further stated that they (the aforesaid named persons) used
the meet the younger brother Or Pratap Sait 1' and they were doing some secret
business. Suresh usual to entrust him with bundle of notes to be handed over to
Venilal Mehta and his sons. These statements were made under section 108 of the
Customs Act by these persons and these statements were not retracted. He
further stated that he had met them at Hotel Blue Diamond when they had stayed
there. In the statement of Suresh M Chalunka , younger brother of Pratap Sait ,
he established the connection of B.V. Shall with the refinery of Pratap Sait at
Ernakulam. He also confirmed that they were dealing in gold biscuits. He did
not know how many gold biscuits were there. Mr. Bharat and Mr. Rashmi , sons of
B.V. Shah used to come , according to his statement , with gold biscuits. He
used to receive the gold biscuits and give these to his brother Pratap Sait.
717 Shri Suresh , receptionist of Blue
Diamond Hotel in statement on 25th May , 1984 under section 108 of Customs Act
had stated that on 3rd May 1984 , Bharat Mehta contacted him over the phone and
accordingly he and Bharat Mehta met at Oberoi Hotel. Bharat Mehta had told him
that his father and sister were caught with gold biscuits and requested for
help. On 5th June , 1984 , Customs Department Superintendent party arrived at
the Silver Refinery , Trichur of Sadashiv Sait and as a result of the search 10
foreign made gold biscuits , 8 primary gold biscuits and 1 gold piece were
recovered. Then on 5th June , 1984 , Sadashiv Sait was interrogated. Extracts
from his examination have been set out here in before , which clearly
established the connection of Venilal with these transactions. Some documents
were recovered from B.V. Shah (Venilal) while he was caught with 60 gold
biscuits and letter 'S' has been explained as indicated before.
On the above facts , detailed show cause
notice was issued. It is true that in the said show cause , the statements of
Venilal Mehta on 2nd May , 1984 , 3rd May , 1984 and 4th May , 1984 were also
taken into account but Annexure 'C' to letter to the Collector retracting the
statement was not taken into account.
It has therefore to be examined that in view
of the fact that the whole statement had been retracted , these statements
should have been considered along with the retraction. The fact of not doing so
will require examination. It may , however , be mentioned that in the
counter-affidavit , it has been stated that the basis of the detention order
was not only the statement by the detenus but also other materials which were
supplied to the detenus.
In support of these applications , the
following main grounds were urged namely:
(1) The grounds were not communicated to the
detenus in a language understood by them.
(2) The retraction of the confessions or
statements made under section 108 of the Customs Act had not been taken into
consideration.
718 (3) There was delay in serving the
grounds upon the detenus.
(4) The detenus were not allowed to be
represented properly before the Advisory Board.
(5) The fact that there was retraction of the
confession having not been taken into consideration the proceedings were
vitiated.
(6) The detaining authority did not independently
consider the representation of detenus but mechanically followed the advice of
the Advisory Board.
Preventive detention under certain prescribed
circumstances under the provisions of certain Acts is permissible in India with
certain constitutional safeguards and the preventive detention which is
recognised and permitted by our Constitution must be resorted to strictly
within those constitutional safeguards , Article 22 ensures protection against
arrest and detention except in certain prescribed circumstances and conditions.
Article 22(4) of the Constitution stipulates that no law providing for
preventive detention shall authorise the detention of a person for a longer
period than three months unless.
(a) an Advisory Board consisting of persons
who are , or have been , or are qualified to be appointed as , Judges of a High
Court has reported before the expiration of the said period of three months
that there is in its opinion sufficient cause for such detention;
Provided that nothing in this sub-clause
shall authorise the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made
by Parliament under such clauses (a) and (b) of clause (7).
Clause l 5 of Article 22 reads as follows:-
719 "(5) When any person is detained in pursuance of an order made under
any law providing for preventive detention , the authority making the order
shall , as soon as may be , communicate to such person the grounds on which the
order has been made and shall afford him the earliest opportunity of making a
representation against the order'.
Clause (6) provides that nothing clause (5)
shall require the authority making any such order as is referred to in that
clause to disclose facts which such authority considers to be against the
public interest to disclose. Clause (7) of Article 2?. ensures that the
Parliament may make law in certain manner prescribed in that sub-clause.
Therefore it was contended that the order and
grounds should be communicated to the detenus in the languages or language they
understood. According to the petitioner , Venilal Mehta understood nothing
except Gujrati. He did not understand English or Hindi or Malayalam. The
grounds of detention were initially supplied to Venilal Mehta in English on
25th June , 1984 i.e. within five days of his arrest or detention. But certain
accompanying documents in Malayalam language were supplied to him namely , item
Nos.
1 , 6 , 8 , 27 , 38 and 47.
Sub-section (3) of section 3 of the s lid Act
provides as follows:- "For the purposes of clause (5) of Article 22 of the
Constitution , the communication to a person detained in 1 pursuance of a
detention order of the grounds on which the order has been made shall be made
as soon as may be after the detention , but ordinarily not later than five days
, and in exceptional circumstances and for reasons to be recorded in writing
not later than fifteen days , from the date of detention." In the instant
case it was submitted that assuming that Venilal Mehta knew Hindi , the
translated copy of the English grounds was admittedly made available to him in
Hindi language on 30th June , 1984-beyond a period of five days and for which neither
any excep- 720 tional circumstances existed nor an reason given. Moreover it
was urged that the annexures in Malayalam language retained their places while
supplying the translated copy of the grounds of detention in Hindi language.
Therefore it was urged that there was noncompliance with the provisions of the
Act.
It will be appropriate to deal with the first
ground.
Whether the grounds should have been
communicated in the language under stood by the detenus ? The Constitution
requires that the grounds must be communicated. Therefore it must follow as an
imperative that the grounds must be communicated in a language understood by
the person concerned so that he can make effective representation. Here the
definite case of the petitioner's father is that he does not understand English
or Hindi or Malayalam and does under stand only Gujrati language. The facts
revealed that the detenu Venilal was constantly accompanied and was in the
company of his daughter as well as son both of them knew English very well. The
father signed a document in Gujrati which was written in English which is his
mercy petition in which he completely accepted the guilt of the involvement in
smuggling. That document dated 30th June , 1984 contained , inter alia , a
statement "I myself am surprised to understand what prompted me to involve
in such activity as dealing in Imported Gold". He further asked for mercy.
There is no rule of law that common sense should be put in cold storage while
considering constitutional provisions for safeguards against misuse of powers
by authorities though these constitutional provisions should be strictly
construed. Bearing this salutary principle in mind and having regard to the
conduct of the detenu Venilal Mehta specially in the mercy petition and other
communications , the version of the detenu Venilal is feigning lack of any
knowledge of English must be judged in the proper perspective. He was , however
, in any event given by 30th June , 1984 the Hindi translation of the grounds
of which he claimed ignorance. The gist of the annexures which were given in
Malayalam language had been stated in the grounds.
That he does not know anything except Gujrati
is merely the ipse dixit of Venilal Mehta and is not the last word and the
Court is not denuded to its powers to examine the truth. He goes to the extent
that he signed the mercy petition not knowing the contents , not understanding
the same merely because his wife sent it though he was sixty years old and he
was in business and he was writing at a time when he was under arrest , 721 his
room had been searched , gold biscuits had been recovered from him. Court is
not the place where one can sell all tales. The detaining authority came to the
conclusion that he knew both Hindi and English. It has been stated so in the
affidavit filed on behalf of the respondent. We are of the opinion that the
detenu Venilal Mehta was merely feigning ignorance of English.
We may here notice the first decision upon
which reliance was placed a decision in the case of Harikisan v.
The State of Maharashtra & Others.(l)
This Court reiterated that the provisions of Article 22 (5) of the Constitution
required that the grounds should be communicated to the detenu as soon as may
be and that he should be afforded the earliest opportunity of making a
representation against the order. This Court reiterated that communication
meant bringing home to the detenu effective knowledge of the facts and the
grounds on which the order was based. To a person who was not conversant with
the English language , in order to satisfy the requirement of the Constitution
, the detenu must be given grounds in a language which he can understand and in
a script which he can read , if he is a literate person , in that case it was
held that mere oral translation at the time of the service was not enough. In
that case the detenu was served with the order of detention and the grounds in
English. He did not know the language and asked for a translation in Hindi. The
request was refused on the ground that the grounds had been orally translated
to him at the time these were served upon him and that English was still being
the official language , communication of the order and grounds in English was
in accordance with the law and the Constitution. This Court observed at pages
925- 926 of the report as follows:- "If the detained person is conversant
with the English language , he will naturally be in a position to understand
the gravamen of the charge against him and the facts and circumstances on which
the order of detention is based. But to a person who is not so conversant with
the English language , in order to satisfy the requirements of the Constitution
, the detenu must be given the grounds in a language which he can understand ,
and in a script which (1).[1982] 2 Supp. S.C.R. 918.
722 he can read , if he is a literate person.
The Constitution has guaranteed freedom of
movement throughout the territory of India and has laid down detailed rules as
to arrest and detention. It has also , by way of limitations upon the freedom
of personal liberty , recognised the right of the State to legislate for
preventive detention , subject to certain safeguards in favour of the detained
person , as laid down in cls.(4) & (5) of Art. 22 One of those safeguards
is that the detained person has the right to be communicated the grounds on
which the order of detention has been made against him , in order that he may
be able to make his representation against the order of detention. In our
opinion , in the circumstances of this case , it has not been shown that the
appellant had the opportunity , which the law contemplates in his favour ,
making an effective representation against his detention. On this ground alone
, we declare his (I detention illegal , and set aside the Order of the High
Court and the Order of Detention passed against him." The principle is
well-settled. But in this case it has to be borne in mind that the grounds were
given on 25th June , 1984 following the search and seizure of gold biscuits
from his room in the hotel in his presence and in the background of the mercy
petition as we have indicated and he was in constant touch with his daughter
and sons and there is no evidence that these people did not know Hindi or
English. Indeed they knew English as well as Hindi. It is difficult to accept
the position that in the peculiar facts of this case the grounds were not
communicated in the sense the grounds of detention were not conveyed to the
detenu Venilal. Whether grounds were communicated or not depends upon the facts
and circumstances of each case.
As early as in 1968 , in the case of
Hadibandhu Dase v. District Magistrate , Cuttack & Anr.(1) this Court was
concerned with a case where on December 15 , 1967 , the District Magistrate ,
Cuttack had served an order made in exercise of power under section 3(1) (a)
(ii) of the Preventive Detention Act directing that (2) [1969] 1 S.C.R. 227.
723 appellant be detained on various grounds.
On December 19 , 1967 , the appellant filed a petition in the High Court
challenging the order of detention on the grounds , inter alia , that the order
and the grounds in support thereof served upon the appellant were written in
the English language which the appellant did not understand. On January 18 ,
1968 the District Magistrate supplied 1 to the appellant an Oriya translation
of the order and the grounds.
On January 28 , 1968 , the State of Orissa
revoked the order and issued a fresh order of detention.A translation of this
order in Oriya was supplied to the appellant. The appellant thereafter
submitted a supplementary petition challenging the validity of the order dated
January 28 , 1968. The High Court of Orissa rejected the petition filed by the
appellant. There was an appeal to this Court by certificate. It was held that
in the facts of that case , there was no proper communication. The order ran
into fourteen typed pages. Mere oral explanation of such an order without
supplying him a translation in a script or language which he understood ,
amounted to denial of the right of being communicated the grounds and of being
afforded the opportunity of making a representation against the order.
The facts in the instant case as mentioned
hereinbefore are different.
In the case of Nainmal Partap Mal Shah v.
Union of India and Others (1) , the detenu not conversant with the English
language was not supplied with the translated script. It was stated in
opposition that the grounds were explained to the detenu by the prison
authorities. This Court found that who explained it was not stated. This explanation
was not correct and as such there is no proper communication. This does not
help us in the facts of this case.
It is submitted in the instant case before us
that the accompanying documents were supplied to the detenu in Hindi on 30th
June , 1984 beyond a period of five days. For this there were no exceptional
circumstances nor any reason had been recorded. Reliance was placed on certain
observations in the case of Ibrahim Ahmad Batti v. State of Gujarat &
Others. (2) But again the facts of that case were entirely different because in
the instant case all the (1)[1980] 4 S.C.C. 427.
(2)[19831 1 S.C.R. 540. 724 factors were
pointed out in the grounds in English which Venilal understood. His mercy
petition corroborates that view. There is no dispute that the other two detenus
namely Pragna Mehta and Bharat Mehta knew English and Hindi. Indeed no point of
non communication of the grounds was made out in respect of them.
It was next submitted that the detenus had
retracted the alleged statements by letters dated 5th May and 6th May , 1984
addressed to the Collector , Central Excise and Customs. While the statements
made in the confession or statements before the Collector under section 108 had
been noted in the grounds of detention , the retraction had not been noted. It
was submitted that the said retraction was bound to influence the mind of the
detaining authority one way or the other whether to make or not to make the
detention order and therefore not taking this fact into consideration on or
about 19th/20th June , 1984 , there was no application of mind. It is true that
retraction was not taken into consideration as it is evident from the order of
detention , thought the retraction as noted here in before , was considered
before confirming the order of detention subsequently after the opinion of the
Advisory Board.
Section 5A of the said Act which was
introduced by amendment in 1975 reads as follows:
'5A. Grounds of detention severable-Where a
person has been detained in pursuance of an order of detention under
sub-section (1) of section 3 which has been made on two or more grounds , such
order of detention shall be deemed to have been made separately on each of such
grounds and accordingly- (a) such order shall not be deemed to be invalid or
inoperative merely because one or some of the grounds is or are- (i) vague ,
(ii) non-existent , (iii) not relevant , 725 (IV) not connected or not
proximately connected with such person , or (V) invalid for any other reason
whatsoever , and it is not therefore possible to hold that the Government or
officer making such order would have been satisfied as provided in sub-section
(l) of section 3 with reference to the remaining ground or grounds and made the
order of detention;
(b) the Government or officer making the
order of detention shall be deemed to have made the order of detention under
the said sub-section ( I ) after being satisfied as provided in ground or that
sub-section with reference to the remaining grounds." Section 5A
stipulates that when the detention order has been made on two or more grounds ,
'such order of detention shall be deemed to have been made separately on each
of such grounds and accordingly that if one irrelevant or one inadmissible
ground had been taken into consideration that would not make the detention
order bad.
Article 22 (5) of the Constitution has two
elements: (i) communication of the grounds on which the order of detention has
been made; (ii) opportunity of making a representation against the order of
detention.
Communication of the grounds pre-supposes the
formulation of the grounds and formulation of the grounds requires and ensures
the application of the mind of the detaining authority to the facts and
materials before it , that is to say , to pertinent and proximate matters in
regard to each individual case and excludes the elements of arbitrariness and
automatism.
The 'grounds' under Article 22(5) of the
Constitution do not mean mere factual inferences but mean mere factual
inferences plus factual material which led to such factual inferences. See the
726 observations of this Court in the case of Smt. Shalini Soni Etc v. Union of
India- & Ors. Etc.(1) As has been said by Benjamin Cardozo , "A
Constitution states or ought to state not rules for the passing hour , but
principles for an expanding future". The concept of "grounds" ,
has to therefore , has to receive an interpretation which will keep it
meaningfully in tune with the contemporary notions of the realities of the
society and the purpose of the Act in question in the light of concepts of
liberty and fundamental freedoms guaranteed by Article 19 (1) , 21 and 22 of
the Constitution.
Reviewing several decisions in the case of
Hasmukh S/o Bhagwanti M. Patel v. The State of Gujarat & Others. , (2) this
Court held that a democratic Constitution is not to be interpreted merely from
a lexicographer's angle but with a realisation that it is an embodiment of the
living thoughts and aspirations of a free people. The concept of 'grounds' used
in the context of detention in Article 22(5) of the Constitution and in
sub-section (3) of section 3 of COFFPOSA , therefore , has to receive an
interpretation which will keep it meaningfully in tune with a contemporary
notions.
While the expression "grounds'' for that
matters includes not only conclusions of fact but also all the "basic
facts" on which those conclusions were founded , they are different from
subsidiary facts or further particulars or the basic facts.
In the instant case , the ground of detention
is the satisfaction of the detaining authority that with a view to preventing
the detenu from acting in any manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to preventing the detenu from ,
inter alia , dealing in smuggled goods otherwise than by engaging in
transporting or concealing or keeping the smuggled goods , or engaging in
transporting or concealing or keeping smuggled goods the detention of the
detenu is necessary. This satisfaction was arrived at as inferences from
several factors. These have been separately mentioned.
One of them is the contention but this ground
was taken into consideration without taking note of the retraction made
thereafter. But the inference of the satisfaction was drawn from several
factors which have been enumerated before. We have to examine whether even if
the facts (1) [1981] S.C.R. 962.
(2) [1981] 1 S.C.R. 353.
727 stated in the confession are completely
ignored , then the inferences can still be drawn from other independent and
objective facts mentioned in this case , namely the fact of seizure after
search of 60 gold biscuits from the suitcase of the daughter in the presence of
the father which indubitably belonged to the father and admitted by him to
belong to him for which no explanation has been given and secondly the seizure
of the papers connected with other groups and organisations Pratap Sait and
others to whom gold has been sold by the father are relevant grounds from which
an inference can reasonably be drawn for the satisfaction of the detaining
authority for detaining the detenu for the purpose of section 3(1) (iii) and
3(1) (IV). We are of the opinion that the impugned order cannot be challenged
merely by the rejection of the inference drawn from confession. The same
argument was presented in a little different shade namely the fact or
retraction should have been considered by the detaining authority and the Court
does not know that had that been taken into consideration , what conclusion the
detaining authority would have arrived at. This contention cannot be accepted.
We are not concerned with the sufficiency of the grounds. We are concerned
whether there are relevant materials on which a reasonable belief or conviction
could have been entertained by the detaining authority on the grounds mentioned
in section 3(1) of the said Act. Whether other ground should have been taken
into consideration or not is not relevant at the stage of the passing of the
detention order. This contention , therefore , cannot be accepted. If that is
the position then in view of section 5A of the Act there was sufficient
material to sustain this ground of detention.
In the case of State of Gujarat v. Chamanlal
Manjibhai Soni , (1) this Court maintained the order of the High Court quashing
the detention. This Court observed that detention under section 3 of the Act
was only for the purpose of preventing smuggling and all the grounds , whether
there are one or more , would be relatable Only to various activities of
smuggling and no other separate ground which could deal with matters other than
smuggling could be conceived of because the Act of smuggling covered several
activities each forming a separate ground of detention and the Act dealt with
no other act except smuggling. Whenever allegations of (1) [l981] 2 S.C.R. 500.
728 729 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 on the day of request but that was not
done. He was produced on the following day and was remanded to judicial custody
permitting further interrogation while in judicial custody , the detenu refused
to sign the further statements and squarely resiled. While the detenu's
application for bail was pending before the Magistrate , the respondent passed
the impugned order. In 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 before the detention order was passed , and therefore ,
there was complete non-application of mind of the detaining authority to the attendant
vital circumstances. It was held that 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. In the instant case before us ,
there was no request for consultation with the advocate. There is no case of
non- production in spite of intimation by the advocate to the Customs officers
before a Magistrate. The confessional statements of course , were retracted.
But in this case the confessional statements was not the only fact upon which
the detaining authority had passed an order. In the premises even if the
confessional statements which were retracted as such could not be taken into
consideration , there are other facts independent of the confessional statement
as mentioned hereinbefore which can reasonably lead to the satisfaction that
the authorities have come to.
The contention on behalf of the detenus that
there was delay in serving the grounds upon the detenus has been dealt with.
There is no substance in the contention in view of what is stated hereinbefore
.
So far as the ground that the detenus were
not allowed to be represented properly before the Advisory Board? from the
facts 730 narrated in affidavit in opposition where it has been stated that
services of Dr. S.C. Purohit , Senior Scientist , V.S.S C. Thumba , Trivandrum
and Dr. Mrs. Purohit were available to the detenu to translate the statements
of the detenu to the Advisory Board. The detenu was detained on 20th June ,
1984. As required under section 8(3) of the Act , the case of the detenu was
referred to the Advisory Board in Government letter dated 18th July. 1984. The
representations submitted by the detenu were also forwarded to the Advisory
Board for its consideration. The services of the two persons mentioned here in
before were utilised by the Board in understanding the statement of the detenu
and deciphreing the representation in Gujarati submitted by the detenu ,
Venilal Mehta to the State Government which was also forwarded to the Board.
Therefore , it has cannot be said that detenus have not been given proper
facility to be represented before the Advisory Board. The contention that the
fact that there was retraction of the confession not having been taken into
consideration had vitiated orders has been dealt with. The allegation or the
submission that the detaining authority did not independently consider the
representation of the detenu put mechanically followed the opinion of the
Advisory Board cannot be sustained in view of the facts and circumstances of
this case.
In this case there was evidence before the
authorities concerned that 60 gold biscuits of foreign origin without any
explanation of their importation were found in the possession of the
father-that is undisputed. Venilal could not give any explanation of their
being in there possession.
These were smuggled. Secondly , there was
evidence in view of the subsequent other facts independent of the confessions
of the father and the sons and the daughter that the father was in contact with
persons who were buying smuggled gold from him and buying at high prices. Their
telephone number were found and they could be identified from the papers seized
during the search at his hotel room The detenu Venilal made a mercy petition-
As the statement of objects and reasons of 1975 Amending Act state that
smuggling of foreign exchange racketeering and related activities have a
deterious effect on the national economy and thereby a serious adverse effect
on the security of State. The society must be protected from that social menace
by immobilizing 731 the persons by detention of the persons engaged in those
operations and to disrupt the machinery established for furthering smuggling
and foreign exchange manipulations (Statement of objects and reasons of 1975
Act). Preventive detention unlike punitive detention which is to punish for the
wrong done , is to protect the society by preventing wrong being done. Though
such powers must be very cautiously exercised not to undermine the fundamental
freedoms guaranteed to our people , the procedural safeguards are to ensure
that yet these must be looked at from a pragmatic and commonsense point of
view. The exercise of the power of preventive detention must be strictly within
the safeguards provided. We are governed by the Constitution and our
Constitution embodies a particular philosophy of Government and a way of life
and that necessarily requires understanding between those who exercise powers
and the people over whom or in respect of whom such power is exercised. The
purpose of exercise of all such powers by the Government must be to promote
common well-being and must be to sub-serve the common good. It is necessary to
be protect therefore the individual rights in so far as practicable which arc
not inconsistent with the security and well-being of the society. Grant of
power imposes limitation on the Use of the power. There are various procedural
safeguards and we must construe those in proper light and from pragmatic
commonsense point of view. We must remember that observance of written law
about the procedural safeguards for the protection of the individual is
normally the high duty of public official but in all circumstances not the
highest.
The law of self preservation and protection
of the country and national security may claim in certain circumstances higher
priority.
As has bean said by Thomas Jefferson "To
lose our country by a scrupulous adherence to written law , would be to lose
itself , with life , liberty , property and all those who are enjoying them
with us , thus absurdly sacrificing the end to the means" (Thomas
Jefferson , Writings (Washington) , V. 542-545 and The Constitution Between
friends by Loutis Fisher 47). By the aforesaid approach both justice and power
can by brought together and whatever is just may be powerful and whatever may
by powerful may be just 732 In the background of the facts and circumstances of
this case the procedural safeguards have been complied with as far as
practicable. There are no merits in the fancied grievances of the detenus. In
that view of the matter , these petitions fail and are accordingly dismissed.
A.P.J. Petitions dismissed.
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