Amarchand Shah of Bombay Vs. K.L. Verma & Ors  INSC
364 (9 December 1988)
B.C. (J) Ray, B.C. (J) Shetty, K.J. (J)
1989 AIR 497 1988 SCR Supl. (3)1031 1989 SCC (1) 250 JT 1988 (4) 632 1988 SCALE
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: Section
3--Detention order-- Detenu contending that failure to furnish bank pass books
vitiated the detention order--Held that bank pass books were not vital and
material documents in reaching subjective satisfaction of detaining
authority--Detention order held valid.
house of the appellant-detenu was searched and currency notes, bank drafts,
bank pass-books and loose sheets seized. The detenu's statement was recorded
and he was arrested. Iater, he made an application retracting his statement and
the Magistrate made an order thereon: "Taken on record". He was
subsequently released on bail with a condition that he would attend Enforcement
Department office every day. On his moving another application, the condition
an order of detention was made by respondent No. 1 against the appellant under
s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974. The detenu thereupon filed a writ in the High Court
challenging the order, which was dismissed.
this Court, it was contended on behalf of the detenu that (i) his application
for variation of the condition of bail and the order thereon as well as his
application retracting his statement and the order thereon were not placed
before the Detaining Authority, and non- consideration of these vital documents
vitiated the detention order; and (ii) copies of bank statements and loose
sheets were not supplied to the detenu and this infringed his right to make an
the appeal, it was,
1. The application for variation of condition of bail and the order passed
thereon were not material or relevant documents and failure to produce the same
before PG NO 1031 PG NO 1032 the Detaining Authority before arriving at his
subjective satisfaction had not vitiated the detention order. [1035A] Asha Devi
wife of Gopal Sherwal Mehta (detenu) v. Shiveraj, Addl. Chief Secretary to the
Government of Gujarat
Purshottambhai Patel y. R.O. Iyer and Ors., Writ Petition No. 1304 of 1987
dated 25.2.1988, Bombay High Court, distinguished.
Though the detenu's application retracting his statement and the Magistrate's
order thereon was not placed before the Detaining Authority, his retraction
letter and the reply of the Directorate of Enforcement had been placed before
the Detaining Authority, and as such the Authority knew about these facts.
There was no dispute that all the documents which were considered by the
Detaining Authority in reaching his subjective satisfaction and referred to in
the grounds of detention had been furnished to the detenu. It was not necessary
to furnish copies of all the documents including the bank pass books which were
not material and relevant for reaching the subjective satisfaction of the
detaining authority merely because they were mentioned in the panchnama.
bank pass books were not vital and material documents in reaching subjective
satisfaction of the detaining authority and as such the failure to furnish the
bank pass books to the detenu had not infringed any right of the appellant and
the order of detention could not be questioned as illegal or vitiated on that
account. [1037B-C] Ashok Kumar v. Union of India, [ 198X] 1 Scale 194, referred
to. & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 627 of 1988.
the Judgment and Order dated 10.6.1988 of the Bombay High Court in Criminal
Writ Petition No. 257 of 1988.
and P.N.Gupta for the Appellant.
Singh, Additional Solicitor General, Arun Madan and P.Parmeshwaran for the
1033 The Judgment of the Court was delivered by RAY, J. Special leave granted.
appeal on special leave is against the judgment dated 10th June, 1988 made by High Court of Allahabad
dismissing Criminal Writ Petition No. 257 of 1988 instituted by the detenu.
facts giving rise to this appeal are that on August 25, 1987 the house of the
appellant was searched by the officers of the Enforcement Directorate under
Section 37 of Foreign Exchange Regulation Act, 1973 and they seized currency
notes of Re. 1 lakh and four bank drafts amounting to Rs.30,000, bank pass book
and loose sheets Nos. 1 to 44 as per item No. 2 in panchnama dated August 25,
1987. The statement of detenu was recorded and he was arrested on the same day.
On August 26, 1987 the detenu made an application in
the Court of Addl. Chief Metropolitan Magistrate, 8th Court at Esplanade retracting his
statement. The Magistrate made an order thereon that " Taken on
record". An application for bail was moved on September 15, 1987 and an order had been made on that day releasing him on
bail of Re. 1 lakh with a condition imposed that he would attend Enforcement
Department Office every day between 11 a.m. to 2 pUll. until further order. The detenu filed an application on September 22, 1987 for variation of the said
conditional order and the condition was varied by the Magistrate by directing
that the detenu may attend the Enforcement Department as and which required.
The Enforcement Directorate sent a letter directing the detenu to collect his
passport deposit during the time of questioning. The passport however. remained
with the Enforcement Department.
on February 9. 1988 the impugned order of detention of the detenu in Central
Prison, Bombay was made by the responded No. 1, the Joint Secretary, Government
of India. The order of detention was served on the detenu on February 19, 1988 and the grounds of detention were
furnished to him.
Criminal Writ Petition No. 257 of 1980 was filed before High Court, Bombay for
quashing the said detention order on the grounds inter alia that certain vital
documents such as the application dated September 21, 1987 for variation of the
condition ot bail as well as the order passed by the Chief Metropolitan
Magistrate varying the condition, the application dated August 26, 1987
retracting the statement by the detenu filed before the Magistrate and non-consideration
of the same, as well as the non-supply of the copies of Bank pass books and
loose papers seized from the residence of detenu and mentioned in panchnama
dated PG NO 1034 August 25, 1987 which were placed before the detaining
authority etc. vitiated the subjective satisfaction of the detaining authority
on consequently the order of detention is illegal and bad. A Rule Nisi was
return was filed by the respondent No. 1 wherein the detaining authority denied
the allegations and stated that all vital and material documents which had been
considered in forming his subjective satisfaction and mentioned in the grounds
have been supplied to him and as such the impugned order of detention is not
illegal and bad. The criminal writ petition was, therefore, dismissed.
by the judgment of the High Court, the instant appeal on special leave has been
firstly contended on behalf of the appellant that the application for bail and
the order dated September 15, 1987 by the Metropolitan Magistrate granting
conditional bail of Re. 1 lakh with one surety of like amount though placed
before the detaining authority, the application for variation of the condition
and the order made thereon by the Magistrate on September 21, 1987 was not produced
before the detaining authority. This is a vital document and non-consideration
of the same by the detaining authority results in the order being illegal. The
decision in Ashadevi wife of Gopal Ghermal Mehta (detenu) v. K. Shiveraj, Addl.
Chief Secretary to the Government of Gujarat & Anr.,  2 Scr 215 was
cited at the bar. In this case it has been observed by this Court thai
documents which are vital and necessary for formation of subjective satisfaction,which
is the pre-requisite for making an order of detention having not been placed
before the detaining authority before making the detention order. the order of
detention will get vitiated. The detention was to prevent the detenu from
indulging in Hawala business i.e. making various payments to various persons in
this country on receiving instructions from Rafiq from Dubai. The application for variation if
condition of bail and the order passed by the Metropolitan Magistrate varying
the condition of bail is, in our opinion, not a vital and material documents in
as much as the granting of bail by the Magistrate enabled the detention come
out and carry on his business activities as before.
imposed by the Magistrate directing the detenu to appear before the office of
the Enforcement Department every day between 11 a.m. to 2 p.m. has been varied
to the extent that the accused to attend Enforcement Department as and when
required". The condition imposed by the Magistrate has no relation to the
activities carried on by the detenu and PG NO 1035 as such the High Court after
considering all the circumstances held that the order varying the condition of
bail was not a relevant document and failure to produce the document before the
detaining authority before arriving at his subjective satisfaction had not
vitiated the order. We agree with the same.
judgment delivered by the High Court, Bombay in Criminal Writ Petition No. 1304 of 1987 entitled Arvindbhai Purshottambhai
Patel v. R. C. Iyer and Ors., on February 25. 1988 was referred to us. In this
case the detenu was arrested for smuggling prohibited articles and the detenu
was prosecuted for smuggling. He was granted bail by Magistrate on certain
condition. Subsequently that order was varied. The initial order granting bail
was placed before the detaining authority, but the subsequent order of
variation was not placed. It was held by the Division Bench of the High Court
that the order of modification might have influenced the detaining authority in
forming his subjective satisfaction and as such the non-placement of the same
would vitiate the order. That was a case of smuggling of prohibited articles
and the condition in the bail was that he would not leave the shores of the
country and so he could not have indulged in smuggling activities pending decision
of the case. This condition was relaxed by the subsequent order. In that
context it was observed by the Court that the order of variation is a material
document which might affect the formation of subjective satisfaction before
passing the order of detention and the failure to place that document vitiated
the detention order. This observation was made in the facts of that case. This
case has no relevance in the facts of this case as we have held that in the
present case the order of Variation is not a relevant and vital document.
been submitted that the detenu made an application on August 26,1987 in the Court of Addl. Chief
Metropolitan Magistrate. 8th
retracting his statement whereon an order was made that "taken on record".
application was not placed before the detaining authority and this has vitiated
the detention order as this vital document was not considered before arriving
at the subjective satisfaction by the detaining authority. It may be convenient
to mention that in the counter-affidavit to the writ petition the respondent
No. 1 has stated in para 5 that the application dated August 26, 1987 and the
order passed thereon was not placed before him as the Sponsoring Authority did
not know about the said application dated August 26, 1987 and the order
thereon. The Enforcement Directorate was not aware of the said application and
the order thereon. In any case, the respondent No. 1 has already stated that
the retraction letter of detenu dated September PG NO 1036 20,1987 and the
reply of the Directorate of Enforcement to the said letter of the detenu dated
August 26,1987 was placed before the detaining authority. This submission,
therefore, has no merit as the detaining authority knew about the retraction
statement and the order made thereon before making the order of detention.
been contended that the Enforcement Department in course of search of the house
of detenu on August 25, 1987 attached bank drafts and cheques, bank pass books
of State Bank of India, Kandivali Branch, New India Co-operative Bank and Bank
of Baroda, Dahisar, loose sheets bunched together and marked `C' containing
pages 1 to 44 and seized under panchnama but did not place before the detaining
authority and if placed copies of those documents were not given to the detenu.
It has been submitted that the failure to supply these documents infringed his
fundamental right to make an effective representation and so the impugned order
is required to be quashed. In reply to this submission the detaining authority
filed a return stating that all documents mentioned in panchnama were placed
only relevant and vital documents were taken into consideration for reaching
subjective satisfaction. These documents have been referred to in the grounds
of detention and copies of all the said documents have been furnished to the detenu.
It has been strenuously contended on behalf of the appellant that Bank pass
books and some pages out of 1 to 44 of the loose sheets bunched together and
referred to in the Panchnama were not given to him and so he could not make an
effective representation. This has infringed his right. In support of his
sub-mission the decision of this Court in Ashok Kumar v. Union of India and Ors.,
[ 1988] 1 Scale 194 (to which one of us is a party) has been cited at the bar.
There is no dispute that all the documents which were considered by the
detaining authority in reaching his subjective satisfaction and referred to in
the grounds of detention have been furnished to the detenu. It is not necessary
to furnish copies of all the documents including the bank pass books which are
not material and relevant for reaching the subjective satisfaction of the
detaining authority merely because they were mentioned in the panchnama. Moreover,
no application had been made before the detaining authority for giving the detenu
the copies of the bank pass books necessary for making an effective
representation against the order of detention. In Ashok Kumar's case (supra)
wherein this Court held that the order of detention had been vitiated due to
non-supply of bank pass books of the detenu and his wife seized in course of
search of some houses wherefrom foreign currency as well PG NO 1037 as primary
gold with foreign makings were recovered, as it was held that these documents
were vital and material documents. The detenu in that case made an application
for furnishing him the bank pass books in order to enable him to make an
effective representation against the order of detention stating that the houses
from which the alleged foreign currency as well as primary gold with foreign
markings had been recovered did not belong to or owned by the detenu. In that
background this Court held that non- supply of the bank pass books infringed
the detenu's right to make an effective representation. In the instant case as
we have said hereinbefore that the bank pass books are not vital and material
documents in reaching subjective satisfaction of the detaining authority and as
such the failure to furnish the bank pass books to the detenu has not infringed
any right of the appellant and the order of detention cannot be questioned as
illegal or vitiated on that score.
other points have been urged before us.
the reasons aforesaid we dismiss the appeal. There will be no order as to
Appeal dismissed .