Bombay High Court
Smt. Lata Mahendra Parekh vs The State Of Maharashtra And Ors. on 6 October, 1998
Equivalent citations: (1999)101BOMLR221
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT N. Arumugham, J.
1. By filing this writ of habeas corpus petition, the detenu Smt. Lata Mahendra Parekh who was detained by an order of detention passed by the 2nd respondent vide detention order No. PSA 1097/60/SPL-3(A) dated 3.1.1998 detaining her by virtue of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) has challenged the detention order along with the grounds and the documents relied upon on record, being Annexures A, B and C which were contemporaneously served on the detenu on 1.5.1998, and prayed for quashing and setting aside the same.
2. On specific intelligence on 1.5.1997 the officers of the Air Intelligence Unit, Sahar Airport, Mumbai, Module I, intercepted one lady passenger, the detenu herein at the exit gate of Sahar Airport, Mumbai, Module I, Arrival hall, after both the detenu and her son cleared through the red channel by making a declaration of being within free allowance. The detenu was holding Indian Passport bearing No. V-012964 dated 23.1.95 and produced Cathay Pacific Ticket No. 160-4409 680 2803 dated 27.3.97 for the sector Mumbai-Dubai Mumbai issued by Air Sea Travels and Tours by which the detenu and her son Master Anand M. Parekh were travelling. Her son also produced Cathay Pacific Ticket No. 160-4409 680 2094 dated 27.3.97 for the sector Mumbai-Dubai-Mumbai issued by the same agency.
3. On seeing the dutiable goods valued at Rs. 5600/- duly signed by the detenu on the gate pass and on coming to know that the detenu and her son came from Dubai they were questioned. On being questioned specifically whether they carried any gold in their baggage they replied in the negative. However, the officers took them through the metal door frame which strongly indicated presence of metal on the body of the detenu. Then the detenu was taken to the ladies room by a lady officer duly escorted by panchas and the personal search of the detenu was made by a lady Gazetted Officer which resulted in the recovery of a black colour cloth belt tied to her waist having compartments which appeared to be very heavy. On further search in the presence of panchas recovery of two bangles and one pendent made of crude gold was made. Thereafter in the presence of panchas the detenu admitted concealment of twenty two (22) gold bars of 10 tolas each bearing foreign markings inside the compartment of the said black coloured cloth belt. The search was also made upon her son by the said officers in the presence of panchas but nothing objectionable was recovered. The detenu and her son were taken outside the Airport along with panchas and officers of A1U but no one came forward to receive them. Both of them were then taken to the office of AILJ in Module II, Sahar Airport, Mumbai, where the black coloured belt was cut open by the aforesaid officers in the presence of panchas which revealed concealment of 22 gold bars of 10 tolas each having foreign markings totally weighing 2565.2 grams. The two gold bangles and one gold pendent were weighed in the presence of panchas and were recovered. The total quantity of gold recovered from the detenu thus weighed 2797.4 gms. valued at Rs. 11,04,973/- IMV and Rs. 13,34,360/- IMV were seized under the provisions of Customs Act, 1962 under a panchanama with belief that the same were being smuggled into India. Then the examination of four checked in baggage consisting of two card board cartons, one black colour zipper bag, one small sized soft top suit case and three pieces of plastic shopping bags and a hand baggage was done by the Customs Officers in the presence of panchas which resulted in the recovery of undeclared dutiable goods valued at Rs. 56,156/CIF and Rs. 1,12,300/- IMV, which were also seized under a panchanaina. The detenu was arrested under the Customs Act, 1962 and was produced before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, who remanded her to judicial custody and was released on bail on Cash Deposit of Rs. 1,50,000/- on 5.5.1997. A show cause notice under Section 124 of the Customs Act. 1962 was issued on 7.8.97.
4. In the statements recorded on 1.5.1997, 12.5.97 and 15.5.1997 recorded under Section 108 of the Customs Act, 1962 the detenu has admitted and stated that the gold under seizure was given to her by one Arab National by name Shri Khadar Khan to be handed over to a person who would identify her outside the Airport, that she had undertaken this job for a monetary consideration of Rs. 25,000/-, apart from the compensation for air-fare for herself and her son from Dubai to Mumbai which was earlier purchased by her husband by name Mahendra Parekh, that the air tickets were already purchased by her husband, that this was her only visit to Dubai, that the previous visits made to Muscat were sponsored by her four brothers at Muscat, that she stayed with her brother Shir Chandren Vasuman, who owned a ration shop and that the payments for the dutiable goods were made by her brothers. Thus in her statements the detenu had admitted her guilt of smuggling activities for monetary consideration and not declaring to the Customs authorities. The search made upon her house yielded no result.
5. The photograph of Smt. Chandrika Bhatia, who was earlier arrested in connection with smuggling of 19 gold bars, the step sister of the detenu was identified by her and in token of identification she signed on the reverse of the same. She also admitted that her husband was arrested on 14.9.93 along with one M.M. Kantawala in connection with smuggling of Indian currency of Rs. 15,00,000/- while going to Dubai, which clearly reveals that the whole of detenu's family is involved in smuggling activities.
6. Having perused all the statements, seizure vouchers, panchanamas and the other connected papers, seized goods as also all the documents as per Annexure "C" and after having arrived at a subjective satisfaction by the Sponsoring Authority, the impugned order of detention has been passed by the Detaining Authority and accordingly she was detained on 15th January, 1998 and aggrieved by the same the petitioner has preferred this writ petition.
7. A sworn return was filed by and on behalf of the Detaining Authority which inter alia, denies every one of the grounds raised in the writ petition.
8. We have heard the rival submission from the bar for the respective parties herein.
9. Among the several grounds Mr. Maqsood Khan, the learned Counsel appearing for the petitioner has confined his argument and contention only to the ground referred to in Clause (ii) of para 4 of the grounds of the writ petition which in short pertains to the arrest of the detenu her coming out on bail on 5.5.1997 though a show cause notice dated 7.8.1997 referred to in Exhibit "D" of the petitioner's compilation was served upon the detenu, a reply through the Advocate of the petitioner had been duly served upon the Sponsoring Authority on 19.9.1997 containing the overt acts of the detenu indulging in possessing gold as claimed for the monetary benefits; but however, she retracted the whole of the statements in the latter part of the say; the same has not either been placed before the Detaining Authority before the passing of the order of detention on 3.1.1998 nor has the same been considered either by the Sponsoring Authority or the Detaining Authority at any point of time and that while so much so being in existence the non-consideration and non placing of the said reply assumes every significance in this context and therefore the said reply deemed to be a very vital document and that since that has not been considered nor placed before the authorities it provides the two grounds that: the non application of mind by the Detaining Authority while passing the order of detention and that non reply amounts to violation of the fundamental rights enshrined upon the detenu by the Constitution of India as no copy has been served upon her and that therefore consequently on the later part of the said ground the impugned order became vitiated. In short Mr. Maqsood Khan contended that the impugned order of detention became vitiated for the reason of the reply to the show cause notice given by the detenu was neither considered nor replied. To substantiate the said ground he has relied upon several case laws.
10. Mr. Rajiv Patil, the learned APP appearing for the respondent per contra would controvert the said contention by taking us through the factual matrix specifically contained in the grounds of detention and that contained in the earlier part in the reply to the show cause notice sent on behalf of the detenu, through his counsel as referred in Exhibit "B", in the petitioner's compilation. In other words the learned APP strenuously urged before us that inasmuch as the detenu had admitted the smuggling of the gold and other articles from Dubai for a monitory consideration as found in the statement recorded by her in the earlier part of the reply. There was no compelling need to imply that the non-production or non-consideration of the said reply to the show cause notice Exhibit "B" would not in any way tilt the balance and that therefore the said reply representation made on behalf of the detenu has not to be termed as vital or important document and therefore he rippled the said attack of the learned Counsel for the petitioner on the said grounds besides placing reliance on a few case laws in this regard.
11. Before proceeding to consider the above rival contentions it has become necessary for us to refer to the written response given in the affidavit by and on behalf of the Detaining Authority, particularly in para 6, as stated hereunder:
6. With reference to para 4(ii) of the petition, it is stated that the purported reply dated 19.9.97 to the Show Cause Notice dated 7.8.97 was not placed before me by the Sponsoring Authority hence the question of considering the same by me and supplying the copy of the same to the petitioner/detenu did not arise. It is further stated that the material placed before me was sufficient and having rational probative value and which had formed the basis for me to pass the Detention Order. I say that copies of the documents relied upon by me were supplied to the detenu. Hence it is denied that the non placement and consequent non-consideration of the reply to the Show Cause Notice dated 19.9.1997 by me has vitiated the subjective satisfaction arrived at by me or that the impugned order of Detention has been rendered null and void, as alleged. In any event, upon perusing the said reply Exhibit, 'D' to the petition, it is clear and it is admitted by the detenu that she had committed the said prejudicial activity for a monetary consideration. In the circumstance I say that if the said reply had been placed before me the same would not have weighed with me in favour of the detenu while arriving at my subjective satisfaction for detaining her. This para, under reply also pertains to the Sponsoring Authority and I shall refer to their affidavit if filed in that regard.
12. From the above it has become very significant to note that it has been admitted that the reply to the show cause notice sent on behalf of the detenu on 19.9.97 has not at all been considered nor adverted to nor placed before the Detaining Authority, nor even replied before the passing of the order of detention. There was no controversy with regard to the same among the parties herein. The endeavour of the learned Additional Public Prosecutor is that the overt act of the detenu in indulging in smuggling activities of gold for monetary consideration was found corroborated by reply to the show cause notice dated 19.9.1997 as found in the earlier statement recorded under Section 108 of the Customs Act. It is therefore under these circumstances the non-consideration of the said reply or non-placing of the same before Detaining Authority to pass the relevant orders under Section 3(1) of the COFEPOSA Act has become unnecessary, it is in this context, in furtherance of our judicial conscience the latter part of Exhibit "D", the reply notice dated 19.9.1997 which was found in paras 2 to 8 of "D", as stated hereunder:
(2) My client states that in fact, when she came from Dubai, the moment she came out from the aircraft, her passport was picked up by the officers of AIU and when she picked up her baggage from Conveyer Belt in Baggage Hall, she was asked to go along with the Officers of AIU to AIU Office and all her luggage was opened there and taken under Panchanama. In fact, she told the officer that Video-Camera was gifted to her by her aunty i.e. mother's sister in Dubai. But inspite of that the Officer wrote down that she has brought the dutiable articles for sale.
3) My client states that in fact the dutiable goods are meant for personal use and they are worth 1700 Dirhams of Dubai.
4) My client was taken away from the Baggage Hall and not from the Exit Gate, as alleged in show cause notice and false case is made out against her.
5) My client has retracted the statement. Further my client's husband Shri Mahendra Parekh has visited the office of AIU as per the summons but Supdt. Mullay did not record his statement on two occasions.
6) My client states that, that the Department has made out the false case, but in fact however she is pleading guilty for the gold and claiming the dutiable articles as well as her personal gold items (1) the pendent, (2) 2 bangles.
7) My client requests that at the time of personal hearing, the officer who recorded her the statement as well as the officers who intercepted her be called for the purpose of cross-examination, and the goods seized under Panchanama i.e. dutiable articles, be kept ready for your inspection at the time of personal hearing.
8) My client states that she has No Objection that if the gold is confiscated, but very reasonable fine be imposed on her, and her dutiable goods, video camera be released to her or in alternative pass the order for reshipment of the same.
13. A casual reading of the above portion of Exhibit "D", the reply to the show cause notice dated 19.9.97 would go to show clearly the retraction of the entire statements made by the detenu on the earlier occasions. As rightly pointed out by Mr. Maqsood Khan, the learned Counsel for the petitioner we find the above is the one and last retraction and barring this never at any point of time the detenu has retracted. As the reply to the show cause notice Exhibit "D", is the first one which came into existence on 19.9.97 and reached the hands of either the Sponsoring Authority or the Detaining Authority it ought to have been considered by the parties concerned; if received by the Sponsoring Authority it must be placed before the Detaining Authority and if so the Detaining Authority must necessarily have considered the same and replied to the person who sent the representation on behalf of the detenu and that is the mandate provided by the Articles of the Constitution of India. The above mandate is not an empty formality. It is made clear that the said opportunity must necessarily be given to the detenu for the purpose of making an effective and efficacious representation to the authorities concerned at the earliest point of time before passing the order of detention, as provided under Article 22(5) of the Constitution of India. Therefore it has become imperative that either the Detaining Authority or the Sponsoring Authority, if they receive any reply representation containing the total retraction of the earlier statement of the detenu for the first and last time but however, prior to the passing of the detention order ought to have placed before the Detaining Authority and considered the same and they could have responded to the detenu which conscientiously has not been done in this case. The very attempt of the learned Additional Public Prosecutor to read the earlier portion of the reply to the show cause notice dated 19.9.97 sounds coincident to the contents referred to in the earlier occasion, in our considered view, would not in any way tilt the balance in favour of the respondent.
14. In Kukjibhai Dhanjibhai Patel v. State of Gujarat and Ors. 1985 (1) Scale 964 in paragraph 6 at lines 40 to 52 the Supreme Court observed thus:
6 ...In the instant case not merely the show cause notice but the reply of the detenu to the show cause notice which was certainly most relevant material ought to have been placed before the Detaining Authority. The observations relied upon by the Gujarat High Court would be of no avail to the respondents in the instant case. The position in law in this behalf is well settled by two decisions of this Court, one in Asha Devi's case and the other in Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Ors. In the circumstances we are clearly of the view that the subjective satisfaction of the Detaining Authority must be regarded as having been vitiated in view of the fact that the relevant material was not placed before it by the Sponsoring Authority.
15. In an unreported judgment held in a case between Malvinder Singh v. Secretary (Preventive Detention) to the Government of Maharashtra and Ors. Criminal Writ Petition No. 1240 of 1989, in delivered by Jahagirdar and Sindhakar, JJ. a Division Bench of this Court, held as follows:
2. The petition states in Clause (ii) of paragraph 4 that a show cause notice dated 16th of September, 1988 was issued to the detenu. This fact is not in dispute because copy of the said show cause notice was one of the documents which were placed before the Detaining Authority before he proceeded to formulate the grounds of detention. The petition then states that a reply to this show cause notice was sent by the detenu's Advocate by registered post, but copy of the said reply was not placed before the Detaining Authority. It is now well settled by a series of decisions that if a show cause notice issued to a proposed detenu has been placed before the Detaining Authority, then the reply, if one is given by the proposed detenu to the said show cause notice, becomes a vital document and must necessarily be placed before the Detaining Authority. If, this is not done, the subjunctive satisfaction of the Detaining Authority is vitiated, rendering invalid the order of detention based upon such subjunctive satisfaction. In Hajarimal Veerchand Ambaval v. Union of India and Ors. Criminal Writ Petition No. 65 of 1987, by one of us (Jahagirdar, J. and Mehta, J.) this proposition has been clearly and unequivocally stated. It has been mentioned therein that if the show cause notices were placed before the Detaining Authority, they were documents which would have influenced the formation of the subjective satisfaction on which ultimately the order of detention is passed. Replies to the show cause notices obviously, in such circumstances, are vital documents. It does not matter what the contents of the replies are, because the mere fact that the detenu did reply to the show cause notice is a vital fact which would have affected one way or the other the formation of the subjective satisfaction of the Detaining Authority. This was regarded as elementary. What was said in the judgment in Hqjarimal's case has been fortified by a judgment of the Supreme Court in Kurjibhai Dhanjibhai Patel v. State of Gujarat Criminal Appeal No. 332 of 1985. In Kurjibhai's case the Supreme Court referred to its own two earlier decisions and held that the reply to the show cause notice was a vital document and if it were not placed before the Detaining Authority it would naturally vitiate the subjective satisfaction.
16. The Delhi High Court in Writ Petition No. 101 of 1984 dated 13th November, 1984, had an occasion to observe as follows:
...The reply on behalf of Ramesh Patel was available. It is not disputed that it could be placed before the Detaining Authority. What is urged is that it was not necessary to see it. We reject such a contention. The result is that it has to be held that a material document which could have affected the subjective satisfaction one way or the other has been withheld from the Detaining Authority and surprisingly enough the Detaining Authority itself feels that he was not required to see it. What makes it worse is that the Detaining Authority sees the show cause notice and adverts to them in the grounds of detention but choose to ignore what is said in the reply to the show cause notices. In a country governed by rule of law such things cannot be allowed to be done. The result is that the order of detention dated June 29, 1984 in respect of Babubhai Raviabhai Prabhakar stands vitiated and we quash the same and direct that he be set at liberty forthwith unless required to be detained under any other valid order of an authority or an order of a Court.
17. Speaking for the Bench Chief Justice Prakash Narain observed thus:
Time and again this Court and other Courts have expressed their anguish at lacunae left in glaring cases which appear to be either deliberate or acts which can be called in mild language extreme casualness or incompetence. This is one of those glaring cases and it pains us to strike down the order of detention in respect of such seriously nefarious activity.
18. In Embicha Bawa Basheer Ahmed v. The State of Maharashtra and Ors. 1996 (4) All .R. 331 : 1996 (2) Mah. L.J. 900 the Division Bench consisting of A.V. Sawant and D.K. Deshmukh, JJ. had gone to consider the above situation. The Division Bench observed in paragraphs 7 and 8 of the said judgment as follows:
7. There is no dispute before us on this factual aspects of the matter since the Detaining Authority has very frankly stated in para 5 of his affidavit, that the said statement of retraction were not placed before him by the Sponsoring Authority and, therefore, the question of considering the same and/or furnishing the copies thereof to the detenu could not and did not arise. It is true that the Detaining Authority further makes a statement in the said para 5 of his affidavit that besides the said statement of the detenu and co-accused there were several grounds upon which he had arrived at a subjective satisfaction that it was necessary to detain the detenu under the preventive detention law. He has also stated that the purported non-placement of alleged retraction made five months after the arrest of the detenu and co-accused did not vitiate the order of detention.
8. However, what surprises us is the approach of the Sponsoring Authority has made himself bold to say that it was true that the retractions were not placed before the Detaining Authority because they were not material or relevant documents and did not have any bearing on the case for detention. He has further stated that the retraction of the detenu and Naseema Beevi were examined by the Sponsoring Authority and were found to be clearly an afterthought. In our view, it is not permissible for the Sponsoring Authority to adopt such an approach in matters of detention having regard to the preventive nature of the order of detention. As stated earlier, the grounds of detention specifically referred to the statement of the detenu recorded on 17th January, 1995 as also the statement of Naseema Beevi recorded on the same day. Several incriminating aspects have emerged from the said two statements which have been specifically mentioned in the grounds of detention summarized above. It is true that the retractions are of 10th May, 1995 and the detenu was not in a position to avail of the bail order because of his poverty but we cannot lose sight of the fact that the order of detention has been issued as late as on 30th May, 1995. It is one thing for the Detaining Authority to say that the statements of retraction by the detenu and Naseema Beevi were not considered by him as relevant. We fail to understand how the Sponsoring Authority can decide this question and preclude the Detaining Authority from applying its mind to the retraction by both, the detenu and Naseema Beevi. In our view, it is not possible for the Sponsoring Authority to arrogate to himself the powers to decide as to whether, in the facts of the case the two retractions recorded on 10th May, 1995 were so irrelevant as even did not deserve to be forwarded to the Detaining Authority who had, by then not yet passed the order of detention. Obviously the grounds of detention must have been formulated much later than 10th May, 1995. Since the order of detention is dated 30th May, 1995.
19. In Satyanarayan Subhdhi v. Union of India and Ors , the Supreme Court ruled the following:
This has been found by the High Court while dealing with the writ petition filed by the detenu. But the High Court however, held that there was another ground i.e. that 13 gold biscuits were found on search from the person of the detenu. So the High Court held that though the first ground was available to the Detaining Authority, the order of detention can still be sustained on the second ground.
3. We have considered the same very minutely and carefully and it appears to us that in fact there were two grounds but only one ground and the non-placement of the retraction of the confessional statement by the detenu before the Detaining Authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid.
4. In these circumstances we do not think that the decisions of this Court in Prakash Chandra Mehta v. Commr. and Secy. Govt. of Kerala , as well as Madan Lal Anand v. Union of India , are applicable to the instant case. We have also considered another aspect of the matter i.e. the detenu is under detention for over eight months and the order of detention is for a period of one year. Considering this aspect also along with the other aspect mentioned herein before we think it just and proper to quash the order of detention and direct for the release of the detenu appellant forthwith provided he is not wanted by any other order. The appeal is thus allowed and the order of detention is quashed.
20. With reference to the main ground dealt with by Mr. Maqsood Khan the learned Counsel for the petitioner in the context of the judicial pronouncement made by this Court, the other High Courts as well as the Apex Court in all the above referred cases we feel that the reply sent on behalf of the detenu in the instant case on 19.9.1997 happened to be the first and the last retraction of the entire earlier statement made by the detenu that the same assumes all the characteristic views of vital and important document which the Sponsoring Authority or the Detaining Authorities ought to have under the law considered the same before passing the order of detention in the instant case, and that while dealing with the legal position in the present condition conscientiously which has not been done, then the said non-consideration amounts to not only non application of mind but also depriving the valuable right of the detenu in non-replying to the same after consideration and non furnishing of the said copies or replies would clearly come within the teeth of Article 22(5) of the Constitution of India. For the said reasons we are not impressed by the strenuous effort, taken by Mr. Rajiv Patil, the learned APP in this behalf. It is therefore under the circumstances we unhesistatingly accept the very contention and the arguments advanced by Mr. Maqsood Khan, learned Counsel for the petitioner.
21. Though the learned APP cited the case law held between Smt. Hansaben Jayantilal Shah v. The Union of India and Ors. Criminal Writ Petition No. 1092 of 1993 and Issac Babu v. Union of India and Anr. for the proposition that it was not incumbent on the authorities to wait till the issue of the show cause notice and the need to issue a show cause notice within 6 months has nothing to do with the processing of the detention papers and therefore the explanation is far from satisfactory. In a case held in between Madan Lal Anand v. Union of India and Ors. , at paragraphs 18 and 19 and In the case of Mst. L.M.S. Ummu Saleema v. B.B. Gujaral and Anr. , we have no quarrel with the legal ratio enunciated by the Apex Court in the above case laws but for the circum stance that the documents found in the above cases were not considered to be of a vital importance we are constrained to say that the said case laws do not come to the rescue of the respondents, viz. the Sponsoring Authority and the Detaining Authority for their laxity whatsoever in not considering the representation or not placing the same for consideration and not replying and so on, as referred to above. The above case laws therefore in our considered view are of no significance to tilt with the case in favour of the respondents herein and as such we are not in a position to agree with the counter contentions raised by Mr. Rajiv Patil, the learned APP.
22. As we have held already dealt with the only ground formulated on behalf of the petitioner in challenging the impugned order of detention since it occupies a very dominant role which has not been legally controverted by and on behalf of the respondents in any manner we are constrained to say that the impugned order for the above reasonings has become vitiated and therefore the petition must succeed. No other substantial point has been placed before us during the hearing of the present writ petition.
23. In the result for all the foregoing reasonings and findings the writ petition succeeds and accordingly it is allowed. Consequently the impugned order of detention bearing No. PSA 1097/60/SPL-3(A) dated 3.1.1998 passed against the detenu Smt. Lata Mahendra Parekh is hereby quashed and set aside. The detenu is set at liberty forthwith unless required by law for any other case. Rule is made absolute.