Andhra HC (Pre-Telangana)
Smt. P. Syamala W/O Pasumarthi ... vs S.V. Prasad, Secretary To Government ... on 1 December, 1992
Equivalent citations: 1993(1)ALT567
ORDER M.N. Rao, J.
1. An order dated 9-6-1992 passed by the specially empowered Officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFEPOSA Act, directing the detention of one Pasumarthi Madhusudana Rao, hereinafter referred to as the detenu, under Section 3(l)(i) and (iv) of the COFEPOSA Act, is challenged in this writ petition by the detenu's wife.
2. On 19-5-1992 the detenu along with his son-Sekhar and cousin-Pasumarthi Sivaramakrishna @ Shivaji alighted from the train - Tirupati bound Howrah express - at Kaikalur railway station at about 5 a.m. The Officers of the Central Excise in the reasonable belief that the above three persons were in possession of contraband gold attempted to stop and check them. But the same was resisted by the three persons. With the help of one Durga Prasad, Assistant Travelling Ticket Examiner on duty in S.E. Coach, all the three were put back in the train. When the train reached Vijayawada, all the three and Durga Prasad, Assistant Travelling Ticket Examiner were taken to the Office of the Assistant Collector, Central Excise, for conducting search. The search of the persons and the luggage of the detenu and the other two, disclosed that the detenu was carrying a cloth bag while Sekhar - his son - a V.I.P. suit case and his cousin-Shivaji -a plastic basket. Three railway tickets showing journey from Kharagpur to Vijayawada and cash of Rs. 1,900/- were recovered from the detenu. Cash of Rs. 1,600/- was recovered from Shivaji and Rs. 300/- was recovered from Sekhar. The detenu admitted that he had kept the contraband gold in the cloth bag. On examination, it was found that two packets secured in adhesive tapes were concealed in the bag and on opening, it was found from one packet 16 gold biscuits with foreign markings and the other packet contained 12 gold biscuits with foreign markings. The authorities secured the presence of a Goldsmith who weighed and valued the gold biscuits which were found to be of 24 carats purity and of foreign origin, totally weighing 3266.200 grams and valued at Rs. 14,00,000/- (Rs.50,000/- each gold biscuit). The detenu failed to produce any valid document as to its possession and on the other hand, admitted that he brought the gold from Calcutta with an intention to dispose it off locally for profit and that he took his son, Sekhar and cousin, Shivaji to Calcutta for protection. In the reasonable belief that the gold was smuggled into India and was therefore, liable for confiscation, the Officers seized all the 28 foreign marked gold biscuits along with the cloth bag and the packing material, but returned the cash, the V.I.P. suit case and the plastic bag.
3. In his statement recorded on 19-5-1992 under Section 108 of the Customs Act, the detenu admitted, inter alia, that the particulars of the seizure effected under the mahazar were correct and that he took to illegal business in contraband gold for making profits, that he visited Calcutta and studied the position relating to this business, that he pooled Rs. 13.70 lakhs locally and left for Calcutta by East Coast Express on 16-5-1992 along with his cousin and son, reached Calcutta on 17-5-1992 and after purchasing the gold from a broker by name Osman of Sona Bazaar, reached Kharagpur on the same night and boarded the Tirupati bound Howrah Express. He also stated that the tickets were purchased up to Vijayawada although they wanted to detrain at Kaikalur, but tickets were not issued to Kaikalur, that his cousin, Shivaji knew about the business and accompanied him for giving protection, for a monetary consideration of Rs. 1,000/- for the trip, but his son, Sekhar came only for site-seeing. The attempts of the Officers to stop the detenu at the railway station were resisted by him as he was not aware of the identity of the officers and in the scuffle, he sustained an injury to his right wrist. It was also further mentioned in his statement that the detenu was not aware of the particulars of Osman, the person from whom he purchased the contraband gold.
4. All the three of them were arrested at 10.45 p.m. on 19-5-1992 under Section 104 of the Customs Act and were produced before the IV Metropolitan Magistrate, Vijayawada at about 7 p.m. on 20-5-1992 under a remand report. The Magistrate passed an order directing production of all the three before the Court on 21-5-1992 and the detenu stated before the Magistrate that the gold belonged to a Non-Resident Indian (NRI) staying abroad and that he does not have readily the authorisation. The authorities produced the three persons before the Special Judge for Economic Offences on 28-5-1992 who passed an order extending the remand till 11-6-1992. The residential premises of the detenu and his cousin were searched by the Officers at Eluru under search warrants, but nothing incriminating came to light.
5. In the grounds of detention while mentioning the aforesaid details, the detaining authority, inter alia, also stated that he was convinced that the detenu was engaged in clandestine transportation of contraband gold with an intention to do clandestine business in contravention of law and deliberately withheld from the Officers, all correct information in his possession regarding the source of the contraband gold and his contention that the gold belonged to an NRI was an afterthought and entirely contrary to his earlier admission made before the mediators. The detaining authority was, therefore, satisfied that the detenu was fit person to be detained under COFEPOSA Act, 1974 and opined that "in the interest of national economy, in order to prevent you effectively from further engaging in such prejudicial activities, as I am sure, that action under normal law alone will not have the desired deterrent effect on you. I am aware mat you are at present under judicial custody having been remanded by the Court. I still consider it necessary to detain you under COFEPOSA Act, 1971 as your being at large in the near future on bail, which cannot be ruled out in view of your pending bail application before the Special Judge for Economic Offences, Hyderabad, will be seriously detrimental to national interest". The detenu also was informed mat he has right to make a representation in writing against the order of detention, to the State Government, the Central Government and also to the Advisory Board. The Advisory Board constituted under the Act, after hearing the detenu and considering the entire record expressed an opinion that there is sufficient cause for ordering detention. The State Government after considering the representation of the detenu rejected the same by an order dated 26-8-1992 in G.O.Rt.No. 3677 and directed that the detenu be detained for the maximum period of 12 months from 10-6-1992.
6. Mr. Kumar, learned counsel for the detenu contends that (A) title detaining authority has not applied his mind; mechanically he signed the order of grounds prepared by the Sponsoring Department, (2) the documents referred to in paragraph 15 of the grounds of detention have not been supplied and the failure in this regard, has jeopardized the right of the detenu to make effective representation against the order of detention and thus the constitutional right guaranteed under Article 22(5) of the Constitution of India read with Section 11 of the COFEPOSA Act have been violated, (3) the contents of paragraph 15 of the grounds of detention are irrelevant and extraneous inasmuch as they constitute the basis for the formation of the requisite opinion for passing the order of detention, and so the order is vitiated, (4) what is the nature of activity of "dealing in smuggled goods" carried on by the detenu has not been mentioned either in the order of detention or in the grounds and therefore, the order is liable to be set aside; the expression "dealing in smuggled goods" encompasses activities other than those specifically enumerated in Clause (iii) of Section 3(1). Unless the nature of the activity falling under Section 3(l)(iv), is specifically mentioned, it is not possible for the detenu to make an effective representation against the order of detention, and (5) there was unexplained abnormal delay on the part of the Government in considering the representation submitted by the detenu.
7. The questions raised, we think, warrant a few threshold observations. When personal liberty is curtailed the forensic thrust is mainly on the guaranteed constitutional protection. Law attains sublimation in the Constitution: it is but inevitable that it enshrines majestic generalities in their idealized form. In public law adjudication the danger or pragmatism disappearing in the fog of idealism is not uncommon. A guaranteed constitutional right in its application to a concrete situation, in the interpretative process, should neither metamorphise into a pious promise bereft of practical content nor emerge as an esoteric edict ordaining immunity to offenders of law. Eschewal of sterile legalism is as much an imperative as avoidance of unrealistic idealism: both are taboos.
8. Points 1 to 3:- Paragraph 15 of the grounds of detention reads as follows:
"Information has been placed before me to the effect that Sri P. Sivaramakrishna Kumar alias Sivaji was earlier detained under COFEPOSA Act, 1974, by the Government of Karnataka in 1990 for his having been caught red-handed, along with some others with 9 contraband gold biscuits in his possession and that the detention order was also subsequently confirmed on the opinion of the Advisory Board but was set aside by the High Court of Andhra Pradesh."
The relevant document in relation to ground No. 15 was the letter dated 4-6-1992 addressed by the Assistant Collector, Central Excise (Prev. & Int.), Guntur, to the Additional Secretary to Government (L & O) Hyderabad. In that letter, it was mentioned that from the Collector of Customs and Central Excise, Bangalore, information was collected that Pasumarthi Sivaramakrishna @ Sivaji (cousin of the detenu) was earlier detained by the Kamataka State Government by an order dated 3-2-1990; the Advisory Board of Karnataka State Government also confirmed the order of detention, but however, the said Sivaji was released on 13-6-1990 by the High Court of Andhra Pradesh in Writ Petition No. 5204/90 filed by the detenu's wife and the reasons for the release of that detenu could not be ascertained due to the non-availability of the order passed by the High Court of Andhra Pradesh. A copy of the letter of the Assistant Collector dated 4-6-1992 adverting to the earlier detention of Sivaramakrishna and the detention being struck down by the High Court, has been communicated to the detenu.
9. The contention of Sri Kumar, learned counsel for the detenu is two fold. The information contained in paragraph 15 of the Grounds of Detention is extraneous and irrelevant and since that information has been taken into consideration by the detaining authority, the order of detention is vitiated. If it is to be considered relevant, the entire information mentioned in paragraph 15 of the grounds of detention has not been borne out by the letter dt.4-6-1992; the reference to Sivarama Krishna @ Sivaji having been caught red-handed along with some others with nine contraband gold biscuits in his possession, has not been mentioned in the letter dated 4-6-1992. That information must have been supplied by the Sponsoring Department to the detaining authority, but withholding the same, the authority passed the order of detention. If the relevant information in this regard was not available to the detaining authority, the only inference that must be drawn is that he merely appended his signature to the draft order prepared by the sponsoring department, without applying his mind.
10. We are not inclined to agree with the submissions. The information mentioned in paragraph 15 of the grounds of detention is only in the nature of narration of facts. The requisite opinion formed by the detaining authority, that the detenu is a fit person to be detained under Section 3(l)(iii) and (iv) of the COFEPOS A Act was not grounded in any measure on the contents of paragraph 15 of grounds of detention. Paragraph 15 of the grounds of detention refers to the earlier detention of the cousin of the detenu. It cannot be said by any stretch of reasoning that the earlier detention of the cousin of the detenu and that detention being set aside by the High Court, even remotely, had influenced the mind of the detaining authority. Different considerations would have weighed with us, had paragraph 15 of the grounds of detention referred to an earlier detention of the detenu himself and the setting aside of that detention by the High Court; and the failure on the part of the detaining authority to supply the relevant particulars to the detenu, would have invalidated the order.
11. The ruling of the Supreme Court in Chhagan Bhagwan Kahar v. N.L. Kalna and Ors., relied upon by the learned counsel for the detenu has no application to the facts of the case on hand. In mat case, the detaining authority while passing the second order of detention had referred to the earlier detention of the detenu himself and the judgment of the High Court quashing it, and it was specifically mentioned in the order of detention that the proceedings taken against the detenu had no effect on him and even after the release, he continued his activities. There were no fresh facts for passing the subsequent order when an order of earlier detention was quashed by a High Court and that such an order could not be taken into account either fully or in part, along with fresh grounds of detention for drawing the requisite subjective satisfaction, to pass, an order of detention.
12. It is true that the documents supplied in support of paragraph 15 of the grounds of detention do not contain details about Sivaramakrishna © Sivaji having been caught red-handed along with 9 others with nine gold biscuits. There is no legal obligation on the part of the detaining authority to supply copies of every document referred to in the grounds of detention.
13. A Division Bench of this Court speaking through one of us (M.N. Rao, J.), has considered a similar question in Rajesh Kumar v. Government of Andhra Pradesh, 1989 (l) APLJ 320 and after reviewing the precedents held:
".....Failure to supply any document or material which does not constitute a basic fact influencing the detaining authority in arriving at the requisite satisfaction leading to the order of detention, but only adverted to by way of casual or pausing reference in the course of narration of facts and not relied upon by the detaining authority in making the order of detention, will not in any manner vitiate the order of detention..."
In coming to the aforesaid conclusion, the Division Bench has reconciled two seemingly irreconcilable views of the Supreme Court in two decisions Kirti Kumarv. Union of lndia (-Judgment rendered by a two judge Bench) and L.M.S. Umma Saleema v. B.B. Gujarat (- Judgment rendered by a three Judge Bench). The aforesaid view of the Division Bench of this Court was affirmed by the Supreme Court in Special Leave Appeal (Criminal) No. 2599 of 1986 dated 25-9-1986.
14. We do not find any factual base in support of the plea that the authority has not applied his mind while passing the order of detention. We have the file placed before us by the learned Advocate General. We find that the Collector of Customs and Central Excise, by letter dated 1-6-1992 informed the detaining authority the facts about Sivaramakrishna's earlier detention and the details referred to in paragraph 15 of the grounds of detention. At the time of passing of the order of detention, the detaining authority, evidently has incorporated this fact in the grounds of detention by way of narration of facts. He had actually seen the material and after considering the entire record, he passed the order of detention. We are therefore, not inclined to agree that the sponsoring department has prepared the order of detention and the detaining authority, has mechanically appended his signature to it. Points 1 to 3 are therefore, answered against the detenu.
15. Point No. 4:- Section 3 of COFEPOSA Act deals with the power to make orders of detention of certain persons. Section 3 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 Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank 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) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods other wise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. (2) xxxxxxx (3) xxxxxxx"
In the impugned order of detention, it is stated by the detaining authority that the order of detention was passed against the detenu "with a view to preventing him effectively from further engaging in transporting of smuggled goods and also dealing in smuggled goods, that it is necessary to make a detention order..... that he be detained under Section 3(l)(iii) and (iv) of the said Act...." The expression "smuggling" is defined by Clause (e) of Section 2 of COFEPOSA Act and it says that 'smuggling' has the same meaning as in clause (39) of Section 2 of the Customs Act, 1962. Section3(l) of COFEPOSA Act has two limbs. The power conferred under the first limb on the statutorily prescribed authority is designed to prevent the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange. The second limb, confers power on the authority "with a view to preventing" the detenu from indulging in the activities mentioned in clauses (i) to (v). In the order of detention passed under Section 3(l)(iii) and (iv), there is specific reference to "transporting of smuggled goods" which is covered by clause (iii) of Section 3(1). The order also refers to the activity of the detenu in "dealing in smuggled goods", which is covered by clause (iv). Transportation, concealment and keeping of smuggled goods are three activities specifically covered by clause (iii). All the rest of the activities are compendiously described as "dealing in smuggled goods" in clause (iv); in clearest terms clause (iv) while mentioning "dealing in smuggled goods", excludes from its purview, the three activities specifically mentioned in clause (iii). It is, therefore, clear that all the activities not covered by clause (iii) shall be deemed to be activities amounting to "dealing in smuggled goods" falling within the ambit of clause (iv). The statute does not specify the residuary activities falling within the ambit of "dealing in smuggled goods". When the law is silent, we are inclined to think that the Judge should not proceed further in attributing any intention to the Legislature which is not discernable from the language employed by the statute especially when the language is clear and unambiguous. It is for the Legislature to make law, but the function of the Court is only to interpret.
16. A Division Bench of this Court in W.P.No. 10199 and 10209 of 1991 dated 13-12-1991, (Smt. Kopparthi Adilakshmi and Smt. Annavarapu Lakshmidevamma v. Union of India and State of A.P.), while interpreting Section 3(l)(iv) has taken the view that "if, however, without naming the particular activity a general expression like "dealing in smuggled goods" is used in an order of detention, as it does not fall either under clause (iii) or under clause (iv), the order of detention cannot be saved". Learned counsel for the detenu, relying upon the aforesaid judgment of the Division Bench has contended that the ratio laid down in that case is squarely attracted to the present case. We are not inclined to agree. In the above judgment, the detention order merely mentioned Section 3(l)(iv) and the allegation was that the detenu was dealing in smuggled goods unlike present one in which clauses (iii) and (iv) of Section 3(1) have been specifically referred to in the order of detention.
17. Even otherwise, in the factual setting of the present case, there is absolutely no scope for the detenu to have any doubt as to what is the allegation levelled against him and in what respects he has to submit his explanation. In his statement made before the authorities on 19-5-1992 under Section 108 of the Customs Act, the detenu specifically had admitted that he wanted to sell the gold for higher rate in order to make profit. The question put and the answer given are as follows:
Question:For whom did you bring the 28 foreign marked gold biscuits under seizure, which were purchased at Calcutta?
Answer: I want to sell them in the gold market whoever offers higher rate, with a view to earn profit. I have no idea to sell to any particular person.
The Statement made by the detenu under Section 108 of the Customs Act is clearly admissible in evidence. In the face of the specific admission of the detenu that he wanted to sell the gold in order to make profit, the allegation in the order of detention that he was dealing in "smuggled goods", was clearly relatable to the business activity of the detenu to earn profit by selling the smuggled gold. There is no basis in law for the supposition that whenever the detaining authority invokes clause (iv) of sub-section (1) of Section 3, in addition to clause (iii), there is a further requirement cast upon him to specify the actual nature of the activity of dealing in smuggled goods, alleged against the detenu. This point is accordingly held against the detenu.
18. Point No.-5- It is seriously urged by the learned counsel for the detenu that the representation made by the detenu was not given due consideration immediately and the delay in that regard vitiates the order of detention. The representation of the detenu was dated 15-7-1992 and it reached the Government on 18-7-1992. Thereafter, the sponsoring department was addressed to offer its remarks in regard to the contents of the representation and that letter was received by the sponsoring department on 24-7-1992. It had taken some time for that authority to prepare the para-wise remarks and the remarks so prepared were received by the State Government on 30-7-1992. On the same day, the State Government had forwarded the remarks of the sponsoring department to the Advisory Board which met on 10-8-1992 and recorded its opinion that there were valid grounds for passing the order of detention. The order of the Government was passed on 24-8-1992. There were three holidays-15-8-1992 being Independence day, 16-8-92 being Sunday and 23-8-1992 also being Sunday. On 20-8-1992,an eight page detailed note was prepared for consideration by the authority and that note was approved on 24-8-1992. The delay, if indeed there was, had occasioned because of the Government forwarding the para- wise remarks from the sponsoring department along with the representation of the detenu to the Advisory Board. There was thus no delay on the part of the Government in considering the representation of the detenu.
19. The delay that occasioned as a result of the Government forwarding the representation of the detenu to the Advisory Board, cannot be a factor for invalidating the order of detention. While referring the matter to the Advisory Board, the State Government has forwarded the detenu's representation also to the Advisory Board. Learned counsel for the detenu submits in this regard, that the Government ought not to have waited till the Advisory Board had recorded its opinion, but independently, the matter ought to have been considered and disposed of. We are afraid, that is not the requirement of law. There is no hard and fast rule as to within what time, the representation should be disposed of: it all depends upon the facts of each case. When a representation is received, before the matter is referred to the Advisory Board and if there is no time to dispose of the representation, the Government may forward the representation to the Advisory Board along with the records of the case. If the representation is received after the case of the detenue was referred to the Advisory Board, even then the Government should forward the representation to the Advisory Board. A Constitution Bench of the Supreme Court ruled in KM. Abdulla Kunchi and B.L. Abdul Khader v. Union of India and Ors., that in both situations, there is no question of consideration of representation before the receipt of report of the Advisory Board. The ruling also lays down the proposition that so long as the representation was independently considered by the Government and if there was no delay in considering the representation, the fact that it was considered after the confirmation of the detention, would make little difference on the validity of the order and that the order could not be invalidated solely on the ground that the representation was considered subsequent to the confirmation of the detention.
20. We, therefore, hold that there was no unreasonable delay on the part of the Government in considering the representation of the detenu and so, the question of invalidity of the order of detention, would not arise.
21. For these reasons, the writ petition fails and accordingly, it is dismissed.