Subhash
Muljimal Gandhi Vs. L. Himingliana [1994] INSC 437 (26 August 1994)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Sawant, P.B.
CITATION:
1994 SCC (6) 14 JT 1994 (5) 358 1994 SCALE (3)856
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by M.K. MUKHERJEE, J.- Special leave
granted.
2.
This appeal is directed against the order dated 1-10- 1990 passed by the Bombay
High Court in Writ Petition (Crl.) No. 1083 of 1990.
3. On
23-8-1990, the Secretary (Preventive Detention) to the Government of Maharashtra,
Respondent 1 herein, made an order under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA'
for short) to detain the appellant with a view to preventing him from smuggling
goods. On getting information about the making of the order the appellant filed
a writ petition + From the Judgment and Order dated 1-10-1990 of the Bombay
High Court in W.P. Crl. No.1083 of 1990 15 in the Bombay High Court challenging
the same and having failed there moved this Court by filing the special leave
petition. To the petition the appellant has annexed, amongst other documents,
purported copies of the order of detention and the grounds on which it is based
though it is not quite clear how he came by them. The respondents, however,
contend that the appellant obtained those copies clandestinely for they were to
be served upon him only on detention. However, this aspect of the matter need
not detain us as the respondents have not assailed the authenticity of those
copies.
4.
Before we proceed to consider the contentions raised by Mr Jethmalani, the
learned Senior Counsel appearing in support of the appeal, we may profitably
refer to the factual allegations made in the grounds of detention so far as
they are relevant for our present purposes. It is first stated therein that in
the early hours of 22-5-1990 when Cathay Pacific Flight No. CX 750 arrived at the Sahar Airport, Bombay, some Customs Officers accosted the
appellant, who had come from Dubai, inside
the aircraft in presence of two panchas and asked whether he was carrying gold.
Initially he answered the question in the negative but when the Officers
touched his person and felt some hard substance below his waist belt he
admitted having concealed gold bars tied around his waist. He was then taken
down to the Customs Baggage Examination Hall and from there to the SDO's room
in the Hall. There, on search, three cotton belts tied around his body were
recovered. Each of the three belts was found to contain 60 gold bars, each
weighing 10 totals, and bearing foreign markings.
5. The
grounds of detention then detail the statement the appellant made to the
Customs Officers on that day wherefrom it appears that he not only admitted
that he brought the seized 180 gold bars from Dubai but earlier also on 15-5-
1990 he had illegally imported 120 gold bars from Dubai. In the statement he
also disclosed the names of the persons who were involved in the transactions.
Another statement made by the appellant on 24-5-1990 regarding his modus
operandi of smuggling the gold has next been incorporated in the grounds of
detention. The grounds of detention then recite that on 24-5-1990 the appellant was arrested and on 25-5- 1990, when
he was produced before the Additional Chief Metropolitan Magistrate, Bombay, he made a statement. The statement
so made has also been reproduced in the grounds of detention.
6. The
appellant's version of the incident as disclosed in that statement is that
after he was brought down from the aircraft, he was allowed to take out his
baggage and then leave the airport. While he was waiting outside he was brought
back and taken to the SDO's office where he found cotton belts lying on the
table. Then and there the Customs Officers asked the appellant about the gold
to which he replied that it did not belong to him. Then the Officers started
assaulting him and tying the belts around his body.
During
the process he became unconscious. It is next stated in the grounds that
Additional Chief Metropolitan Magistrate while remanding the appellant into
judicial custody ordered his medical examination. Pursuant thereto he was
examined by the Chief Medical Officer of the Bombay Central Prison 16 Hospital
and his report indicated that he had suffered injuries. The customs authorities,
however, denied the allegations of assault made by the appellant. 7. According
to the detaining authority, from all the facts stated in the grounds of
detention, it was evident that the appellant smuggled massive quantity of gold
to India for the second time and he was
likely to continue to do so for which it was necessary to detain him.
8. The
question as to whether a detenu or anyone on his behalf is entitled to
challenge an order of detention without the detenu submitting or surrendering
to it and, if so, what will be the nature, scope and extent of such challenge
came up for consideration before a three-Judge Bench of this Court, of which
one of us (Sawant J.) was a member, in Addl. Secy., Govt. of India v. Alka Subhash
Gadia1. The Court, after striking a balance between the competing claims of the
individual to his liberty and of the State to detain an individual to safeguard
the interest of the society and on a conspectus of the decisions of this Court
and of different High Courts on the subject, answered the question with the
following words: (SCC pp. 520-21, para 30) "... it is not correct to say
that the courts have no power to entertain grievances against any detention
order prior to its execution.
The
courts have the necessary power and they have used it in proper cases as has
been pointed out above, although such cases have been few and the grounds on
which the courts have interfered with them at the pre- execution stage are
necessarily very limited in scope and number, viz., where the courts are prima
facie satisfied (i) that the impugned order is not passed under the Act under
which it is purported to have been passed, (ii) that it is sought to be
executed against a wrong person, (iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that
the authority which passed it had no authority to do so. The refusal by the
courts to use their extraordinary powers of judicial review to interfere with
the detention orders prior t o their execution on any other ground does not
amount to the abandonment of the said power or to their denial to the proposed detenu,
but prevents their abuse and the perversion of the law in question." (emphasis
supplied)
9. Mr Jethmalani
first contended that the five contingencies referred to in the above-quoted
passage were not exhaustive but illustrative as there might well be other
contingencies in which pre-execution challenge to the order of detention would
be permitted. In elaborating his contention Mr Jethmalani submitted that in the
case in hand there were sufficient materials to prove that the Customs Officers
concocted a false case of smuggling against the appellant after beating him,
keeping him in illegal custody for three days and coercing him to make a
confessional statement. In support of this submission, Mr Jethmalani first drew
our attention to the report of the doctor of the Jail Hospital submitted on
2-6-1990 to the Chief Metropolitan 1 1992 Supp (1) SCC 496: 1992 SCC (Cri) 301
17 Magistrate regarding medical examination of the appellant which indicates
that the doctor found some bruises and abrasions on his person and he
complained of pain on his body. Mr Jethmalani then drew our attention to the
fact that though the appellant was apprehended in the early hours of 225-1990
and was thus constitutionally and statutorily required to be produced before
the nearest Magistrate latest by 23-5-1990 he was kept unlawfully detained till
25-5-1990 when the customs authorities produced him in court. Mr Jethmalani
submitted that as these facts unmistakably demonstrated the misuse and abuse of
extraordinary constitutional powers by the State machinery this Court would not
allow the liberty of a victim of exercise of such powers to be taken away even
if the parameters mentioned in Alka Subhash Gadia1 did not apply in this case.
Even otherwise, Mr Jethmalani urged, the facts herein clearly made out a case
for interference by this Court under category (iii) mentioned in the
above-quoted passage in Alka Subhash Gadia I, namely that the impugned order
was passed for a wrong purpose.
10.
Having given our anxious consideration to the above contentions of Mr Jethmalani,
we are unable to accept the same. In the passage, earlier quoted from Alka Subhash
Gadia1, this Court has expressly laid down that the interference with detention
orders at pre-execution stage has to be limited in scope and number as
mentioned therein.
The
Court has reiterated the same view as will be evident from the following
further observations made in that case: (SCC p. 522, para 32) in the rare cases
where the detenu, before being served with them, learns of the detention order
and the grounds on which it is made, and satisfies the Court of their existence
by proper affirmation, the Court does not decline to entertain the writ
petition even at the pre-execution stage, of course, on the very limited
grounds state d above." (emphasis supplied)
11.
The above principles laid down in Alka Subhash Gadia1 have been quoted with
approval by another three-Judge Bench in N.K. Bapna v. Union of India2. Bound
as we are by the above judgments, we must hold that the other contingencies, if
any, must be of the same species as of the five contingencies referred to
therein. Coming now to Mr Jethmalani's submission that the detention order was
passed "for a wrong purpose", namely, to harass and humiliate the
appellant by concocting a false case of smuggling, based primarily on a
confession obtained from him after subjecting him to assault, illegal detention
and extortion we find that the detaining authority has denied the allegations
of assault and extortion. Needless to say these are disputed questions of fact,
which we cannot entertain much less delve into or decide upon. In any case, the
said fact, even if true cannot vitiate the order of detention. As regards the
allegation of illegal detention, the respondents have drawn our attention to
the following lines in paragraphs 10 of their affidavit-in-reply:
2
(1992) 3 SCC 512: 1992 SCC (Cri) 683 18 "... the petitioner was allowed to
stay in the Air Intelligence Office as the investigation had to be done to find
out the whereabouts of the receiver of the contraband gold, the information of
which was given by the petitioner to me and other investigating officers during
the course of interrogation.
The
petitioner was interrogated only and not arrested as alleged by him. The
petitioner was arrested only on 24-5-1990 and produced before Chief
Metropolitan Magistrate on 25-5- 1990." to contend that there was no
breach of constitutional or legal provision as the petitioner was produced
before a competent court within 24 hours of his formal arrest. In our
considered view, even if it is held that the above explanation offered by the
respondents for delayed production is not a satisfactory one and that the
Customs Officers have failed to comply with constitutional and statutory
requirements, the order of detention which has been made by the detaining
authority on the basis of its satisfaction that the petitioner was smuggling gold,
would not be bad on that score. The appellant, however, would be certainly
entitled to seek appropriate relief by way of compensation or otherwise in case
he succeeds in proving that he was wrongfully and illegally detained. For the
foregoing discussion, we are unable to hold that the order of detention is made
for a purpose extraneous to the provisions of COFEPOSA.
12. Mr
Jethmalani next contended that the utter absurdity of the allegation of
smuggling made against the appellant would be borne out by the photographs
which were taken at the instance of the Customs Officers at the time of the
appellant's apprehension as they would clearly show that it was impossible for
him to zip up his trousers, with three belts tied, each containing 60 pieces of
gold, weighing 10 tolas each, around his waist. Though this factual submission
was not a relevant consideration at this stage in the context of the principles
laid down in Alka Subhash Gadia1 we had, to satisfy our judicial conscience,
called for and saw all the photographs carefully. Having done so we are
constrained to say that Mr Jethmalani's submission in this regard was based on
wrong instructions.
13. Mr
Jethmalani lastly submitted that having regard to the fact that the order of
detention was passed as far back as in 1990 and the maximum period of
detention, which the appellant would have to undergo under the order was two
years, was long over, his detention at this distant point of time would be
punitive and not preventive. It is undoubtedly true that an unusual delay in
execution of an order of detention if not satisfactorily explained, may
persuade the court to draw such an inference. There is, however, no scope for
drawing such an inference in this case as the delay here has been occasioned
not by any omission or commission on the part of the detaining authority. On
the contrary, it is the appellant who has delayed the execution by first moving
the Bombay High Court and then this Court.
That
apart, the respondents have asserted that though this Court had not passed any
interim order against execution of the order, it could not be served as the
appellant was absconding. It is pertinent to point out here that an identical
contention 19 raised by Mr Jethmalani on similar facts was negatived by this
Court in `Bhawarlal Ganeshmalji v. State of TN.3 14. On the conclusions as
above, we dismiss the appeal.
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