Karnataka High Court
T.M. Sabira vs State Of Karnataka And Anr. on 2 September, 1980
Author: K. Jagannatha Shetty
Bench: K. Jagannatha Shetty
JUDGMENT K. Jagannatha Shetty, J.
1. Smt T. M. Sabira - the petitioner - challenges the order of detention of her husband P. Shamsuddin dated 6th November, 1979 made by the State Government under Section 3(1) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"). The order states that the Government was satisfied that it was necessary to direct the detention of Sri P. Shamsuddin with a view to preventing him from abetting the smuggling of goods. The grounds of detention furnished to the detenu are as follows :
"Grounds for detention of Shri P. Shamsuddin. - In pursuance of S. 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and for the purposes of Clause (5) of Article 22 of the Constitution of India, you are hereby informed that the grounds on which you have been detained under the Detention Order No. HD 43 SCF 79, dated 6-11-79, made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, are as follows :-
The Officers of Customs, Mangalore acting on reliable information, intercepted the vessel "MSV-Zoodu-Salamy" registered at Mangalore bearing Registration No. MNG-22 dated 3-10-1977, and after thorough rummaging of the same, they found wrist watches of foreign origin of different brands kept in 14 tins covered with gunny bags and concealed in a specially made secret chamber inside a diesel oil tank in the said vessel. The total number of wrist watches found were 9,989 collectively valued at Rs. 24,21,050/- and they were seized by the said officers on 16/17-10-79 in the reasonable belief that the said wrist watches had been smuggled into India in contravention of the provisions of the Customs Act, 1962, along with the vessel valued at about Rs. 3,00,000/- which was used for concealing and smuggling of the said wrist watches.
K. A. Mohammad, who was the tindal of the said vessel in the course of its voyage up to Mangalore New Port and who was present on board of the said vessel at the time of the entry into the said vessel, the search of the said vessel and the seizure of the said watches by the Customs Officers has made a statement before the Superintendent of Customs (Spl.) (Prev) Mangalore, on 17-10-79 that you were the tindal appointed for the said vessel, that you had navigated the said vessel, along with him (K. A. Mohammad) and the other crew members during April 1979 to the Arabian Gulf Ports like Korfkhan, Amaria, Kuwait, etc., that you also navigated the said vessel till it reached Amaria Port on or about 16th or 17th September 1979 and that you continued to be the tindal incharge of the said vessel when it was berthed in the Amaria Port and until 24-9-79 when it sailed again to New Mangalore Port.
Mr. K. A. Mohammad has further stated in his said statement as well as the other crew members viz, K. M. Ali and M. Kumarian in their statements made before the Superintendent of Customs (Special) (Prev) Mangalore on 17-10-79 that when the vessel was berthed in Amaria Port as aforesaid, you through and jointly with himself (Mr. K. A. Mohammad) and some of the other crew members, namely, K. M. Ali, M. Kumaran, R. Chandran and K. Mohammed, concealed the said watches in the secret chamber inside a diesel oil tank of the said vessel and that, however, after such concealment was completed and the vessel was about to leave Amaria Port, instead of tindalling the said vessel, you informed K. A. Mohammad that you would leave Dubai and travel to India by Air.
Your wife Smt. T. M. Sabira, in her statement dated 22-10-1979 before the Superintendent of Customs, Special, Preventive, Kasargod, has stated that you came to Trivandurm by Air and from there to Kasargod by train on 29-9-1979.
From your above conduct and from the above materials, the Government of Karnataka are satisfied that your detention is necessary with a view to preventing your from abetting smuggling of goods, and hence the order of detention is passed."
If you desire to make any representation against the said order of detention to the Government of Karnataka, you may do so and address it to the undersingned and forward the same through the Officer-in-charge of the Central Prison, Bangalore.
Copies of Mahazar, Manitest and statements referred to above are enclosed.
By Order and in the name of the Governor of Karnataka
Sd/-
(V. Venugopal Naidu) Commissioner for Home Affairs and Secretary to the Government, Home Department."
2. Mr. J. Jeshtmal, learned counsel for the petitioner contends that the impugned order has been passed without satisfaction of the Government and the satisfaction, if any, was unreal, sham and not genuine. He also contends that the order was made only upon the subjective satisfaction of the Secretary to Government, Home Department and not on the satisfaction of the concerned Minister as it ought to be. He further Urges that the satisfaction of the Customs Officers that the detenu was involved in the abetting of smuggling virtually constituted the satisfaction of the detaining authority without there being an independent application of the mind by any one of the authorities.
3. In response to the emergent notice issued by this court, respondents have filed a statement of objections supported by an affidavit of one Sri B. Parthasarathy, Deputy Secretary. Home Department (Police), Vidhana Soudha, Bangalore. Learned Advocate General also made available before us the entire records pertaining to the case of the detenu.
4. Since the impugned order was purported to have been made by the Government, it is not in dispute that there ought to have been a satisfaction of the concerned Minister, who happened to be the Chief Minister in charge of the Home-portfolio. Therefore, the first and the foremost question that arises is whether the impugned order was supportable on the satisfaction though subjective, of the Chief Minister. When the petitioner challenges the order of detention on the ground that there was no application of mind by the detaining authority and the order was made mechanically or in a callous manner, it is incumbent upon the authority to satisfy the court that the allegations of the petitioner are no correct. The satisfaction of the authority is state of mind of a person. It can be proved by any method known to law by acceptable evidence.
In State of Bombay v. Purushottam Jog Naik, while dealing with this aspect of the matter, Bose, J. observed :
"As a matter of abstract law, of course, the state of man's mind can be proved by evidence other than of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof. But whether that would be enough in any given case, or whether the "Best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts."
The Supreme Court again in a number of decisions pointed out that when a rule nisi is issued by a court in a habeas corpus petition the proper person to file the counter-affidavit is the authority who has passed the order of detention under Section 3 of the Act and if for some good reason that person is not available, the next best thing would be to furnish the affidavit of a senior officer who personally dealt with the case of the detenu in the Secretariat or put it to the Minister for orders. (See (i) Mohd. Alam v. State of West Bengal, ; (ii) Shaik Hanif v. State of West Bengal, and (iii) Jagdish Prasad v. State of Bihar, . It was also emphasised in Mohd. Alam's case at paragraph 15 as follows :
"This obligation stems from the well-settled principle that once a rule nisi is issued on habeas corpus motion, by the court, the onus is on the State to show that the liberty of the detenu has been taken away in accordance with procedure established by law, and that the safeguards provided in Article 22 and in the Act, have not been transgressed or by-passed."
5. In the statement of objections filed in the present case, it is averred at paragraph 2(b) as follows :
"It was on the basis of the said material that the then Secretary to Government, Home Department, Karnataka, made the order of detention on being satisfied that it was necessary to detain the detenu with a view to preventing him from abetting smuggling of the goods. The order of detention as well as the grounds in support thereof will speak for themselves."
At paragraph 4 it was further stated as follows :
"On contrary, the subjective satisfaction of the detaining authority had been arrived at on an objective consideration of all the materials available and it cannot be assailed."
It is thus made clear that the detention order was made by the then Secretary to the Government, Home Department, on his being satisfied. Learned Advocate General, however, submitted that the above averments have to be read along with the 'nothing' from the official records and the records disclose that it was the Chief Minister who was satisfied and not the Secretary to the Home Department
6. We gave our anxious consideration to the matter after carefully perusing the records. The records reveal that the case of the detenu along with several others was put up before the Screening Committee and that committee approved the detention of 7 persons including the present detenu. This much is gatherable from the 'note' put up by Sri Venugopal Naidu. It reads :
"The Collector, Central Excise in his letter dated October 24, 1979 vide page 4 requested the detention orders in respect of 9 persons involved in smuggling and abetting the wrist watches numbering 9,989 worth Rs. 24.21 lakhs. The Screening Committee met on 26th and 29th October has approved the detention of 7 persons only. As the Committee felt that there were not enough grounds to detain the remaining two persons, sanction may be accorded for the detention of these 7 persons.
Sd/-
Venugopal Naidu. 6-11-79."
It appears the concerned file was then transmitted to the Chief Minister who on the same day subscribed his initial below the said 'note'. The detention order was also issued on the very day. Placing reliance on these records, learned Advocate General strenuously contended that the averments in the return filed by the Deputy Secretary stating that "the then Secretary to Government, made the order of detention on being satisfied" must be understood in the sense that the Secretary authenticated the order of the Government after the Chief Minister was satisfied about the matter. After referring to the Karnataka Government (Transaction of Business) Rules, 1977 framed under Article 166(3) of the Constitution, counsel also urged that the Secretary to the Government shall be the Head of the Department and he is required to advise the Minister. If he sought sanction of the Chief Minister for detaining the person and if the Chief Minister initialled the file, then it implicit that he has accorded sanction only after being satisfied about the need to detain the person.
7. Unfortunately, in this case, there is no affidavit of the Home Secretary who had personally dealt with the case of the detenu. The Deputy Secretary who has filed the Return, was not the officer who submitted the records to the Chief Minister for consideration. Evidently the Deputy Secretary has no personal knowledge about the satisfaction, if any reached and recorded by the Chief Minister. On the contrary, he is definite that it was the then Secretary to the Government, Home Department, who made the impugned order after being satisfied about the matter. Having regard to these averments in the statement of objections, we are unable to accept the explanation offered by the Advocate General that this part of the return of the Deputy Secretary should be ignored and it be held that what the Deputy Secretary meant was that the Home Secretary only authenticated the order and the Chief Minister was personally satisfied about the need to detain the person.
It may be relevant to remember that under Section 3 of the Act, the authorities who are empowered to make an order of detention include among others, the Secretary to the Government also. It is not disputed that under the relevant law, the Home Secretary was also competent to make the impugned order. Therefore, in the absence of an affidavit of the then Home Secretary, we should not be justified in assuming that the Chief Minister was personally satisfied about the matter. Neither the return filed in the case supports the stand taken by the counsel nor-do the records expressly indicate any such satisfaction recorded by the Chief Minister. Even according to learned Advocate General, it is only an inference to be drawn from the records, Certainly we cannot proceed on speculation in a matter concerning personal liberty. We do not have the benefit of a counter-affidavit of the person who has placed the file before the Chief Minister for orders or who could speak to the satisfaction of the Chief Minister in the matter. We would, therefore, not be justified in rejecting the contention urged for the petitioner that there was no application of mind by the Chief Minister.
8. It must be borne in mind that the Act confers extraordinary power to detain a person without recourse to the ordinary laws of the land. Any person could be detained on the subjective satisfaction of a designated authority. The satisfaction of an authority is all that the law speaks of. It must, therefore, require the closest scrutiny and the greatest circumspection on the part of those who wield this power over others, See Rameshwar Lal v. State of Bihar, . We are not unaware of the colossal damage to the national economy that the big-time smuggling operations bring about and the need for stringent measures to combat this malignancy. Courts have no aversion or hostility to such measures if enacted. But the cherished concept of personal liberty is held high and sacred in the scale of fundamental freedoms enshrined in our Constitution. Courts must, therefore, as Lord Atkin put it "ever alert to see that any coercive action is justified in law.") See Liversidge v. Anderson, 1942 AC 206 at p. 244).
In this context, it is well to remember what Sarkaria, J. observed in Mohd. Alam's case, "Our democratic Constitution inhibits blanket and arbitrary deprivation of a person's liberty by authority. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State, in the larger interests of society, to so restrict that fundamental right that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. The slightest deviation from or displacement or infraction or violation of the legal procedure symbolised in that fulcrum, upsets the balance, introduces error and aberration and vitiates its working. This symbolic balance therefore, has to be worked with utmost care and attention. Viewed in that perspective, the requirement as to the filing of the counter-affidavit by the proper person cannot be treated as an empty formality."
9. In the result, the writ petition is allowed; and the impugned order of detention Exhibit 'A' dated 6th November, 1979 made by the Government of Karnataka is hereby quashed. The detenu shall be set at liberty forthwith.
10. At this stage, an oral submission was made for a certificate of fitness to appeal to the Supreme Court. We do not think that this case involves substantial question or questions of law of general importance needing to be decided by the Supreme Court. Certificate is accordingly refused.
11. Petition allowed.