Delhi High Court
Ishwar Parasram Punjabi vs Union Of India And Anr. on 24 May, 1989
Equivalent citations: 38(1989)DLT381, 1989(23)ECR200(DELHI)
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The challenge in these four writ petitions is to the orders of detention passed on 7th December, 1988 by the Joint Secretary, Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Cofeposa Act'.
(2) The main contentions which were raised in Crl.W. No. 11 of 1989 filed by Ishwar Parasram Punjabi are common to the other petitions but as additional contentions were raised on behalf of the other petitioners, it is more appropriate to seal with and consider the common contentions in Ishwar Punjabi's Case and to separately consider the additional contentions raised by the other detenus. Cri. W. No. 11 of 1989 (3) Briefly stated, the case of the petitioner Ishwar Punjabi is that while he was attending to his business as the sole proprietor of M/s Modesto Corporate on on the morning of 18th November. 1988, the Customs Officials entered his premises and searched the same and recovered cash of Rs. 2,87,750.00 . According to the petitioner, no Panchnama of the said seizure was prepared and he was taken to his residence where again search was conducted and some articles and papers seized. The petitioner was then taken to the premises No. 201. Sainik Farms, New Delhi where a search of the said premises was going on. According to the petitioner, the said premises are owned by his sister-in-law and the petitioner is her Power of Attorney holder and in September, 1987, by a regular lease deed, the said premises had ben let out to the Libenan Ambassador. The possession of the premises is alleged to be with the said Ambassador and, it is alleged, that the sign board to this effect is prominently displayed on the main gate of the said premises. According to the petitioner, he delivered photo copy of the lease deed along with general power of attorney and two photo copies of the cheques, issued by the Ambassador of Liberia, to the Customs officials at the Sainik Farms in the afternoon of 18th November, 1988 after he had called for these documents from a Chartered Accountant Shri L. D. Kriplani. The petitioner was kept in the Customs House and was produced at the residence of the Addl. Chief Metropolitan Magistrate on the night of 21st November. 1988. It is further alleged that the petitioner, while he was in custody, was mal-treated and physically assaulted with the result that both his legs suffered grievous injury and he was admitted to Ram Manohar Lohia Hospital. On 22nd November. 1988 he was produced in Court and the petitioner retracted all the statements which had been taken from him earlier.
(4) On 7th December, 1988 it is alleged that at 4 P.M. a bail application was moved or behalf of the petitioner, who was still confined in the hospital and at 4.30 P.M. he w.as served in the said hospital with the impugned detention order dated 7-12-88 issued under Section 3(1) of the Cofeposa Act. The order states that it had been issued with a view to prevent the petitioner from abetting the smuggling of goods, keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting and concealing smuggled goods. The petitioner was served with the grounds of detention on 10th December, 1988 on the basis of which the aforesaid detention order was passed, along with copies of some documents as per the list annexed thereto.
(5) The grounds of detention, inter alia, stated that the petitioner's Sainik Farm House No. 201 was searched on 18th November, 1988 which led to the recovery of 676 VCRs. 357 VCPs, 59500 colour film rolls etc., all of foreign origin, having a market value of Rs. 1.66,80,600.00 . In addition thereto, other premises were also searched and some other goods seized. On 19th November. 1988, on i'nformation allegedly provided by the petitioner-herein, the premises of M/s Amritsar Bombay Carriers, New Delhi were searched which resulted in recovery of VCRs, VCPs and photographic colour films, collectively valued at Rs. 2.30,50,000.00 . These were seized on 20th November, 1988 on the reasonable belief that these were smuggled into the country. The grounds of detention referred to other statements which had been recorded, and which were relied upon by the detaining authority. It was, inter alia, mentioned therei'n that these goods had been imported and had been cleared from the Customs on the basis of the deting on the bill of entry which hsa been signed by the embassy of Liberia. It was further staled in the grounds that the contraband goods were imported in the guise of construction material and were got cleared on the basis of alleged exemption certificate attested by the Ministry ct External Affairs in favor of the Liberian Embassy. After the goods had been cleared from Calcutta, they were transported to Delhi and were kept by the petitioner. The goods were then alleged to have been disposed of by the petitioner through his associates. It was also stated in the grounds of detention that the statements which had earlier been made by various persons were later on retracted. 'Factum of arrest of other persons connected with the petitioner was also mentioned. Lastly, it was stated that the detaming authority had carefully considered the facts of the case and, after considering the statements of various persons involved in the case and all the evidence on record, it was satisfied that the petitioner was abetting the smuggling of goods, keeping the smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting and concealing smuggled goods. It was also stated that unless the petitioner was prevented, he- was likely to indulge in similar prejudicial activities in future. The detaining authority also took note of the fact that bail applications had been filed by various persons including the petitioner and that though the petitioner was in judicial custody but there was likelihood of his being released on bail. Copies of the documents and statements, on which reliance was placed while passing the order, were enclosed with the grounds of detention. The petitioner was further informed that if he wished to make representation against the order of detention lie may do so.
(6) Soon thereafter, the petitioner field the present petition challenging the aforesaid order of detention.
(7) The first contention which has been urged before me by Shr Jethmalani and adopted by the other counsel for the. petitiofiers, is that some relevant documents were not considered by the detaining authority and, therefore, the order of detention stood vitiated.
(8) Elaborating the aforesaid contention, it was submitted that the premises No. 201, Sainik Farms, New Delhi had been given on lease to the Liberian Ambassador. According to the petitioner, on 18th November, 1988 he had handed over to the Customs Officers a copy of the lease deed, in respect of the said house which had been les out to the Liberian Ambassador, along with general power of attorney executed in favor of the petitioner by his sister-in-law and copies of the covering letters sent along with the cheques for rent which had been issued by the Liberian Ambassador. The submission of the learned counsel was that if these documents had been looked into, the detaining authority would have realised that the premises in question, namely, 201 Sainik Farms, were not with the petitioner but were in the possession of the lessee, namely, the Liberian Ambassador. These documents were relevant documents and it was the dur.y of the sponsoring authority to place the same before the detaining authority.
(9) According to the reply affidavits filed on behalf of the respondents, the said documents were never received by the sponsoring or the detaining authority. In the affidavit of Shri C. Rajan, Under Secretary, Ministry of Finance it has been stated that the aforesaid documents were not delivered to the Customs Officers at the Sainik Farm on 18th November, 1988 as alleged or at all.
(10) After the filing of the aforesaid counter-affidavit, a rejoinder affidavit was filed by the wife of the petitioner. In this. for the first time, she stated that the documents were handed over to the Customs Authorities who were conducting the raid on 18th November. 1988 by one Shr Naresh Nawani. It is further alleged that Shri Nawani once again handed over copies of the said documents at the Customs House to the concerned officers on 20th November, 1988. In support of this, affidavit of Naresh Nawani has been filed. He has stated that he handed over documents to the Customs Officers on 201 Sainik Farms on 19th November, 1988 and the said Customs Officers refused to acknowledge receipt of the said documents. It is further alleged that another set of the same documents was handed over by him in the afternoon of 20th November, 1988 to an officer sitting on the second floor of the Customs House but who refused to give acknowledgement receipt of the said documents.
(11) In reply to the aforesaid affidavit, a further affidavit has been filed by Shri C. Rajan dated 12th May, 1989 in Cr. W. 10 of 1989. It has been stated in this affidavit that no documents were handed over on 18-11-1988 or on 20-11-1988 as alleged. It has further been averred that the petitioner bad been deliberately silent with regard to the alleged handing over of documents on 20-11-88. According to the respondents, the said contention is an afterthought. It is also submitted that the petitioner is silent as regards the officers to whom the documents were allegedly handed over.
(12) In the light of the aforesaid averments, it has first to be considered as to whether the aforesaid documeuts, namely, copy of the lease deed, general power of attorney and covering letters relating to the rent of the premises in question, were at all handed over to the Customs Authorities. Relying upon Smt. Raziya Umar Bakshi v. Union of India and others, . It has been submitted by the petitioner's counsel that no reliance should be placed on the affidavit of the respon-dents. In Raziya's case it had been contended, in the affidavit filed on behalf of the detaining authority, that the grounds were explained to the detenu in the language which he knew. This explaining is alleged to have been done by a Police Inspector. The Supreme Court held that if the contention of the respondent was correct then the affidavit of the Police Inspector should have been filed and any other affidavit will only be regarded as hearsay and is not admissible. Seeking to apply the analogy, the submission of Shri Jethamalani is that the affidavit of Shri Rajan, who is an Under Secretary in the Ministry of Finance, is inadmissible because he could not know as to whether any documents were handed over to the Customs Authorities on 18th and 20th November, 1988.
(13) Possibly the best evidence with regard to the submission of the documents may have been of the Customs Authorities, but it has been rightly contended by the respondents that the petitioner has not given or disclosed the names of the officers to whom the documents are alleged to have been handed over. It is difficult to accept that the petitioner, who considered these documents as being important, would have handed over those documents to officers without a receipt and without as certain in the names of the persons who were receiving the said documents. If the experience of the petitioner was that on 18th November, 1988, as has been alleged, the officers receiving the documents did not give a receipt, it is difficult to imagine that the documents would be, once again, handed over to Customs Officers on 20th November, 1983 without a receipt and without ascertaining the name of the recipient. Interestingly enough, in the writ petition it is not alleged that the documents were once again handed over on 20th November, 1988. This allegation has been made, for the first time, in the rejoinder-affidavit. This lends support to the contention of the respondents that the story of handling over of the documents to the Customs Officers is an after-thought. Had the petitioner given the name of the Customs Officers, to whom the documents were allegedly handed over. Shea it would have been necessary for the respondents to have filed the affidavit of the officer so named. In the absence of the officers names it was not possible for the respondents to file the affidavit of the officers concerned. The decision of the Supreme Court in Raziya's case (supra) can have no application here because, in Raziya's case the name of the officer who had translated the grounds of detention was known and it is that known officer's affidavit which was not filed. In the present case it is not known as to who was the officer to whom the documents are alleged to have been given. Moreover, even if the affidavit of the respondents is ignored, the petitioner has not placed any material on record which can, prima facie support the bald assertion that the said documents were given to the Customs Authorities. The course of conduct of the petitioner in not noting the names of the officers to whom the documents were allegedly given or net obtaining the receipts for the documents appears to be unnatural. In any event, the least one would have expected is that a letter would have been written by the petitioner to the Customs Authorities bringing to their knowledge the alleged submission of documents on 18th and 20th November, 1988.
(14) In view of the aforesaid, I am not satisfied or convinced that copies of the document? were handed over by the petitioner and/or his representative on 18th and lor 20th November, 1988, as alleged or at all. Therefore, it is not necessary for me to consider the alternative argument raised on behalf of the respondents, namely, that the only purpose of these documents was to make the detaining authority aware of the existence of the lease deed and the detaining authority was in fact aware of this contention which has now been raised by the petitioner. It may only be noticed that in support of this, it had been contended by Shri Lokur that in the statement of the petitioner himself which was recorded on 18th November. 1988 it had' been stated that house No. 201. Sainik Farms. New Delhi had been rented out to the Embassy of Liberia but had not been occupied by them and was lying under the petitioner's care and possession. According to the learned counsel, the statement of the other persons including G. D. Mehti. and B. Topo, who was an employee of the petitioner, was to the same effect, namely, that the possession of the premises in question was with the petitioner.
(15) It was then contendede, on behalf of the petitioner, that the main gate of the premises contained a sgn board which showed that the premises were the residence of the Ambassador of Liberia. Furthermore, there were two phones which had been installed in the premises which were in the name of the Liberian Ambassador. It w3as submitted that the detaining authority wa never made aware of these facts whcih were very material and would have established that the said premises were in the possession of the Liberian Ambassador.
(16) Was it necessary for the Customs Authorities to inform the detaining authority about the 3existence of the said board kand telephone number ? Was the said material or information relevant or vital and which could have effected the min of the detaining authority in ariving at the conclusion as it did ? These are the questions which have now to be considered.
(17) It is well settled that all material which is relevant in considering whether order of detention should be passed or not has to be placed before the detaining authority by the sponsoring authority. There is no doubt that any documents or articles seized which have any connection or relevance therewith have necessarily to be brought to the notice of the detaining authority. But the sign board outside the house, though alleged affixed on the gate, was not an article which had been seized or was in the custody of the sponsoring authority. To my mind, be bound to bring to the notice of the detaining authority such a fact which may, or may not, have been observed by the officers of kthe sponsoring authority.
(18) The material which has to be placed before the detaining authority has to be tangible and relevant material which is available on the record of the sponsoring autority. It is for the detaining authrity to apply its own mind by personally sealing the documents and other material, relevant to the case, which is placed before it by the sponsoring authrity. The Customs Aurthorities would be under an obligation to supply to the detaining authority any tangible material which is in their possession and exists aon theri records and which may be relevant for passing the order of detention. The material may be in the form of documents, articles, statements of the parties or even reports of the Customs Officers who may have conducted search. If, however, there is no mention in any document, statement, report etc. of any fact then it cannot be said that the sponsoring authority is in possession of such a Iact. If an officer of the raiding party d:d not state in a report that a board bearing the name of the Ambassador of Liberia exited on the gate of the premises in question then it cannot be said that the sponsoring authority was in possession of a material which it did not forward to the detaining authority. There is nothing on the record to show that any document existed on the record of the Customs Authorities which indicated that there was such a name board on the main gate or that the said telephones existed in the said house. The sponsoring authority is obliged to place before the detaining authority only that material which existed on its own files, even if it be a report of customs officials in which he may have stated what he had observed at the time of the search. The information about the alleged existence of the board and the telephones was not on the record or to the knowledge of the sponsoring authority.
(19) It is true that the freedom of a citizen should be guarded very jealously. Never timeless it has to be borne in mind that the sponsoring authority is not a single individual acting on his own. The Customs Authority consists of an hierarchy of officers of different ranks who can act only on the basis of information and material available tc it on its official records. It is on the bars of the material and information which exists on the record that a decision can be taken whether to sponsor or recommend to the detaining authority to take action. It is this record which contains relevant material which has to be placed before the detaming authority so as to enable that authority to form its opinion. Material or information must exist on record before the detaining authority takes a decision. If therefore, some facts or material or observations are not placed on the record of the sponsoring authority then the order will not be vitiated if such non-existing material, as far as sponsoring authority is concerned, is not placed before the detaining authority.
(20) It is next contended by the learned counsel for the petitioner that on 7th December. 1938 the petitioner was in judicial custody. Application for bail was filed at 4 P.M. on 7th December, 1988 and the detention order was served on the petitioner on that very day at 4.30 P.M. In that detention order it has been stated that an application for bail has been filed and it is likely that the petitioner may be released on bail. The submission is that within the short period of time the detaming authority could not have considered the voluminous documents on record and applied its mind. The mentioning of the bail application showed that it is only after the said application was filed that the case was considered by the detaining authority. The application had been filed at 4 P.M, The detaining authority, it was submitted, must have considered the record, if at all, only after 4 P.M. and the fact that the detention order was served at 4.30 p.m. at Rani Manohar Lohia Hospital showed that the detaining authority could not have had sufficient time to consider the material on record..
(21) The aforesaid argument seems very attractive but there is a basic fallacy therein. The respondents have stated that a copy of the bail application was served on their counsel at 2.30 p.m. It is further averred by the respondents that this bail application was read over to the detaining authority over telephone and the authority applied its mind on the material before passing the impugned order. There is no reason as to why the affidavit filed on behalf of the respondents to the aforesaid effect should be disbelieved. The grounds of detention have been typed on about 6 pages. If the contention of the petitioner is correct, namely, that the detaining authority could have considered the material only after 4p.m., then there would not even be sufficient time for the grounds to have been typed and served at 4.30 p.m. Considering the number of words which have been typed, it would take certainly more than half an hour for the grounds to be typed. The detaining authority has taken note of the filing of the bail application. Therefore, it will be safe to conclude thatthe detaining authority must have got to know about the filing of the bail application prior to 4. p.m. It seems probable, and likely, that copy of the bail application was handed over to the respondents' counsel at 2.30 p.m. and it is not unlikely that contends thereof were communicated to the detaining authority on telephone. This being so. there was ample time available with the detaming authority for it to have applied its mind to the material on record and then come to the conclusion which it did.
(22) Relying upon Smt. Shashi Aggarwal v. State of U.P., & Ors. it had been contended by counsel for the petitioner that a bald assertion in the grounds of detention to the effect that the bail mil be granted could not be a reason for passing the order of detention. The authorities must further be satisfied, it is aubmitied, that notwithstanding the petitioner being released on bail the order of detention should be passed. In other words, reasons for passing the order of detention have not been indicated.
(23) I am unable to agree with the atoresa'd submission. Thy. grounds of detention have to be read as a whole. The said grounds give a clear picture as to the modus operandi which had been adopted with regard to the import into this country of huge. quantity of VCRs, VCPs and photographic films valued at ever 4 crores of rupees. The said goods were imported in the guise of their being construction material and were cleared as such. The connection of the detenus with this importation, transportation, clearance and subsequent disposal has been stated in the grounds. All these facts were taken into consideration and it was stated in the grounds of detention that "unless prevented you are likely to indulge in similar prejudicial activities in future". It was in this cop.text that it was stated in the grounds that the detaining authority was aware that the petitioner was in judicial custody but since he had moved a bail. application there was every likelihood of his being released on bail. In the case of Bal Chand Bansalv. Union of India & Ors., the Supreme Court held that the detention order could not be made for the purpose of circumventing the expected bail order. The Court proceeded to examine the grounds of detention, in that case, and came to the conclusion that the said grounds indicated that the offences in respect of which the detenu was accused were so interlinked and continuous in character and were of such nature that they fully justified a detention order. In the circumstances, the Court held that the satisfaction of the detaining authority, as specifically recorded in the grounds, could not be doubted.
(24) The Constitution Pench in Haradhan Saha v. State of W.B" has observed that in preventive detention the past act is merely a material for inference about the future course of probable conduct on the part of the detenu. After considering various decisions of the Court, one of the principles enunciated by the Supreme Court in Haradhan's case was that "The order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances.".
(25) The implication of the aforesaid decisions of the Supreme Court clearly is that the past conduct of the detenu is relevant consideration in determining as to how he is likely to behave in the future. This past conduct is contained in the grounds of detention and looking at the grounds of detention as a whole the day conclusion which can be arrived at, in this case, is that the satisfaction of the detaining authority with regard to the detention of the petitioner was ben a fide and the decision to detain him, so that hs doe^ not indulge in similar prejudicial activities in future, was based on the material on record.
(26) It was then submitted that a copy of the bail application led by the petitioner, on which reliance was placed, was not supplied to the petitioner.
(27) 11 is true that copy cf the said appl'catlo-i was iu't supplied to the petitioner. According to the respondents the said copy was not available with the detaining authority because the contents of the bail application were read out to the detain- ing authority on telephone. That may be so but the copy of the .bail application was available with the counsel for the respondents. Therefore, the excuse of non-availability of the bail application cannot be accepted. However, is the detention order to be quashed because of the non-supply of the bail application ? On the facts and in the circumstances of the present case, the answer to this must be inthe negative.
(28) The bail application was filed under the signature of the petitioner himself in the afternoon of 7th December, 1988. It is at 4.30 P.M. that order of detention was served on him. The requirement of supplying documents to the detenu is to enable him to make an effective representation against his detention. Where a copy of ^he document, like the bail application in the present case, should normally be with the detenu, a mere omission to supply a copy thereof cannot, to my mind, be regarded as such a grave infirmity so as to lead to the quashing of the detention order. A similar question had been raised with regard to the non-supply of the bail application in Criminal Writ No. .146 of 1987, Smt. Madha Khanna v. Union of India & Others, (5) decided by a Division Bench of this Court on 25th September, 1987. It had been contended therein that a copy of the bail application to which reference had been made in the grounds of detention had not been made available to the detenu and, therefore, the detention order should be quashed. This Court held as follows :
"SO,it is clear that it is only the basic facts which are the fountain head of passing of the detention order which are to be communicated and not any subsidiary facts. In the present case the basic facts and the documents which show the recovery of the smuggled gold and the connection of the detenu with the said recovery. The filing of bail application, and passing of the orders on such bail applications by the detenu arc not the basic facts on which the detention order is based. After all it cannot be argued by any sense of rationality that any detaining authority could pass a detention order on such ancillary facts. The ancillary facts and the material and documents which although are liable to be considered by the detaining authority informing its subjective satisfaction for passing the detention order but which are not incriminating or inculpatory, the same are not liable to be communicated to the detenu Along with the grounds of detention and in case the detenu makes a demand for supply of copies of such documents or communication of such material then the detaming authority is legally bound to supply the same and non-supply of the same may result in vitiating the detention order because then the detenu would be stated to have been prevented from making an effective representation against the detention order. The bail application and the order made thereupon and the order made by the Hon'ble High Court rejecting the petition for cancellation of bail are in our opinion such ancillary thrush material facts which were bound to be considered by the detaining authority and they were in fact considered by the detaining authority before passing the detention order but they were not the documeats or the material on which the detention order is based. Hence, they were not liable to be communicated to the detenu Along with the grounds of detention. We must emphasise that such documents do not go to influence me mind of the detaining authority in passing the detention order. They could go to influence the mind of the detaining authority for considering that no detention order should be made. So, we hold that there is no merit in these two grounds pleaded by the petitioner for quashing the detention order."
I am in respectful agreement with the aforesaid observations. In the present case also, the filing of the bail application was only an ancillary fact and the real material on which the detaining authority came to the conclusion that detention order should be passed was not the bail application but other material which is referred to in the grounds of detention.
(29) While on this aspect, I may also notice the decision of the Supreme Court in the case of Smt. K. Aruna Kumari v. Government of Andhra Pradesh and others, . In that case, application for grant of anticipatory bail which had been filed before the Criminal Court had not been placed before the detaining authority, The Court held that there was ample material on which the subjective satisfaction of the detaining authority could be based. The implication of the aforesaid decision of the Supreme Court, therefore, is that the non-supply of the anticipatory bail application would not vitiate the order of detention.
(30) The question of non-supply of the bail application may be viewed from another angle and that is whether such non-supply has caused any prejudice to the petitioner. Is it possible to come to the conclusion that the petitioner was prevented or handicapped in filing a representation because a copy of the bail application filed on his behalf, and signed by him, was nor given to him ? Should a relatively minor omission on the part of the sponsoring or detaining authority lead to the quashing of the detention order even if such omission causes no prejudice to the detenu (31) It has been contended by the learned counsel for the petitioners that the concept of prejudice to the detenu is foreign to the preventive detention law. The submission is that if the rights enshrined under Article 22(5) of the Constitution and those incorporated in the detention laws are violated then, even if no prejudice has been caused to the detenu by reason of such violation, the detention has to be quashd. In support of this proposition, reliance is first placed on the case of Dr. Ram Krishan Bhardwaj v. The State of Delhi and others, . It was observed therein that "Prentive detention is a serious invasion to personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case. the petitioner has the right, under Art. 22(5), as interpreted by this Court by a majoriy, to be furnished with particulars of the grounds of his detention 'sufficient to enable him to make a representation which on being considered may give relief to him'."
(32) The aforesaid observations, which were relied upon by Shri Harjinder Singh, do not deal with the question of prejudice being caused to the detenu as such. What was, however, submitted was that the aforesaid observations of the Supreme Court completely eliminated the consideration of question of prejudice when the Court is required to determine as to whether the rights under Article 22(5) have been violated or not.
(33) In order to decide this. it is necessary in note as to what steps have to be taken by the detaining authority when an order under Section 3(1) of the Cofeposa Act is passed. When such an order is passed. Article 22(5) requires that the said order and the grounds on which the order has beer passed should be communicated to the detenu and, secondly, that person will be afforded the earliest possibility of making a representation against the order. In order to give effect to this, section 3(3) of he Cofeposa Act requires that the grounds shall be communicated to the detenu not later than 5 days after the detention and, in exceptional circumstances, not later than 15 days. Section 8 of the Cofeposa Act further requires the Advisory Board to consider the detention which has been ordered within the time frame prescribed by law. The aforesaid observations of the Supreme Court in Ram Krishan's case (supra) would seem to suggest that if grounds of detention are not communicated within the prescribed time and/or opportunity is not granted to the detenu to make an effective representation, at the earliest point of time, and where opinion of the Advisory Board is not sought within the prescribed period or where the representation against the detention is not disposed of within a reasonable time, then that would amount to the constitutonal rights granted under Article 22(5) of the detenu being violated and such violation must, ipso facto, result in the quashing of the detention order.
(34) It will, however, be seen that the right to make an effective representation, though provided by Article 22(5) of the Constitution, is, in effect, based on the principle of natural justice. Neither Article 22(5) nor the Act specifically provides as to the manner in which opportunity is to be afforded to the detenu to exercise this right, except for providing that the grounds of detention are to be supplied to him within the prescribed time. Therefore, in each individual case it will have to be seen whether such an opportunity has been granted or not. Facts of each case will have to be examined in order to determine whether this right has been violated or not. It is, to my mind, in this limited sphere that the question as to whether prejudice has been caused to the detenu or not can be considered.
(35) The Constitution has guaranteed the detenu that he shall have a right to make an effective representation. It will be for the Courts to decide as to whether the non-supply of some documents or non-supply of translations of some of the documents have in effect prevented the detenu from exercising such a right effectively. If the Court comes to the conclusion that because of any omission or non-compliance, in this regard, no prejudice has been caused to the detenu. it would necessarily mean that the Court has found that an effective opportunity has, in fact, been granted to the detenu to make his representation notwithstanding the non-supply, of, for example, all the translations of some documents which may not be very material or which have been described in the grounds themselves. In this regard, it is important to bear in mind the observations of Sabyasachi Mukharji, J. in the case of Prakash Chandra Metha v. Commissioner and Secretary. Government of Kerala and others, , that "There is no rule of law that commonsense should be put in cold storage while considering coustitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed".
(36) 0NE of the contentions raised in Mehta's case was that the grounds of detention were not communicated to the detenus in a language understood by them. It had been concerned that one of the detenus, namely, Venilal Mehta only knew Gujarat whereas the grounds had been given to him in English with a translated copy in Hindi. It was also submitted that there were some annexures in Malayalam language which had not been translated. The Supreme Court came to the conclusion that the detenu. Venilal Mehta was constantly accompanied by his son and daughter-both of whom knew English very well. Furtheremore, having regard to the conduct of the detenu Venial Mehta, he was feigning lack of any knowledge of Hindi or English. With regard to the Annexures which were supplied in Malayahm language it was observed by the Court that the gist of Malayalam annexures had been stated in the grounds. The implication of this is that even if the annexures are supplied in a language not known to the detenu but a summary or gist of what is contained therein is stated in the grounds and those grounds are in a language which is known to the detenu, then the detention is not vitiated for the reason that the annexures were not supplied in a language known to the detenu.
(37) Shri Jethmalani, however, submitted that Prakash Chandra's case should be confined to its own facts and the correct production of law has been laid down by the Supreme Court in the case of the Mrs. Tering Dolkar v. Administrator. Union Territory of Delhi and others, . In that case the detenu could understand only Ladakhi language and the documents which were accompanying the grounds had been furnished in Tibetan language and not in Ladakhi. Reference was made to Prakash Chandra Mehta's, case (supra) but the Court observed that the said case was distinguishable and then observed that "We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order".
(See Bablu Das v. State of W. B.Khudiram Das v. State of W. B., Fogla v. State of W. B.") Persual of the decisions relied on, namely, Bablu Das v. State of W.B., Air , BO) Khudiram Das v State of W.B., and Fogia v. State of W.B.. Air do not show that they ever considered the question as to the test of prejudice being relevent or not to matters of preventive detention. These decisions merely held that there should be compliance with the provisions of the Act. It was not held, in these cases, that the test of prejudice is foreign to preventive detention. It may here be noticed that the Bench which decided Prakash Chandra Mehta's case considered of three Judges while Dolkar's case was decided by a Bench of two Judges. Dolkar's case cannot be understood as having disapproved the decision of the Larger Bench in Prakash Chandra Mehta's case Indeed a smaller Bench could not have done so. Prakash Chandra Mehta's case was sought to be distinguished because the Court felt that the facts of the two cases were not in pan materia. Nevertheless, as far as tills Court is concerned, by virtue of the provisions of Article 141 of the Constitution, the observations of the Supreme Court in Prakash Chandra Mehta's case are binding and good law. Furhermore, the attention of the learned Judges in Dolkar's case was not drawn to the decision of the Constitution Bench of the Supreme Court in the case of State of Punjab and others v. Jagdev Singh Talwaiidi, . In that case Talwandi had been detained under Section 3(3) of the National Security Act, 1980. The order of detention which was passed was, inter alia, founded upon the report of the Cid relating to a speech made by Talwandi. What was furnished to Talwandi was only an extract from the Cid report and not the whole of it. Dealing with this, the Supreme Court observed that "HOWEVER,that leas not caused any prejudice to the respondent since the grounds and the particulars were served upon him simultaneously and ground No. 1 mentions every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention".
It is clear, therefore, that in determining whether the right of the detenu under Article 22(5) had been violated or nut, on account of an alleged lapse on the part of the detaining authority, the Constitution Bench of the Supreme Court did consider the question as to whether the alleged lapse had caused prejudice to the detenu. The concept prejudice is, therefore, relevant in such cases. Similarly, in A. Alangarasamy v. State of Tamil Nadu and another, . The Court was considering a case relating to detention under Section 3(1) of the Cofeposa Act. In that case the order of detention had been passed in English and a Tamil version of the same was also supplied to the detenu. There was, however, some difference in the translation. A contention was raised that this difference had caused serious prejudice to the detenu and, therefore, the detention should be quashed. This contention was rejected with the following observations :
"The alleged difference between the two versions is not consequential. The order of detention and grounds accompanied clearly spelt out why the detenu was being detained. We are not persuaded to hold that the two versions are so different as to cause any prejudice to the detenu".
These observations also support the contention of Shri Lokur that it is appropriate for the Court to see whether any alleged lapse on the part of the detaining authority has caused prejudice to the detenu or not.
(38) For the aforesaid reasons, I do not find any merit in the petition and the same is dismissed. Crl. W. No. 10 of 1989.
(39) The petitioner in this writ petition is the son of Ishwar Punjabi and he was also detained pursuant to the order passed under Section 3(1) of the Cofeposa Act on 7th December, 1988. In the order of detention, it is stated that he was being detained with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The grounds of the detention which were served on the petitioner were the same which were served on the other detenus including his father Ishwar Punjabi (Petitioner in Cr. W. No. 11 of 1989).
(40) On behalf of the petitioner, the learned counsel has reiterated his contentions which had been raised in Ishwar Punjabi's writ petition and it is not necessary to deal with the said contentions, once again, here.
(41) The learned counsel has, however, raised two additional contentions. It has firstly been contended that in the grounds of detention which have been served on the petitioner it has been stated that "You also admitted to your active involvement in the disposal of contraband goods". According to the learned counsel, then was no rational probative material on which the petitioner could have been detained. It is submitted that this is the only reference in the grounds of detention to the part alleged to have been played by the petitioner and even this alleged admission is not contained in the statement of the petitioner. It was submitted that the statement of the petitioner does not contain any such admission and his statement has been misread by the detaining authority.
(42) In his statement dated 18th November, 1988 which was recorded by the Customs Authorities, which statement was subsequently retracted, it has been stated that the petitioner was staying in his house along with his father (lswar Punjabi) and it was in the knowledge of the petitioner that goods of foreign origin were stored in the house which had been seized by the Customs Officers. He further stated that "I also state that my younger brother who had been adopted by my uncle resides in Hong Kong for the last 10-12 years and I am the only male member who have full control over the business in the absence of my father and also authorised to do this". He then described the business of importing goods from different suppliers and stated that some of the .goods so imported were delivered to the Diplomats and "sonic of the goods were supplied to the local purchasers after getting the blank delivery orders signed by the Diplomats". The aforesaid statement, read as a whole, clearly shows that the petitioner was doing business along with his father and brother and this business entailed goods coming from abroad and the same being supplied even to local purchasers "After getting the blank delivery orders signed by the Diplomats".
Shri Lokur is right in contending that the statement in the grounds of detention, that the petitioner admitted his involvement in the disposal of contraband goods, is nothing more than an inference which has been arrived at by the detaining authority on the basis of the statement dated 18th November, 1988. It cannot be said that the said inference arrived at by the detaining authority is perverse or is such which no person could have possibly arrived at. There is, therefore, no merit in the contention that the detaining authority has read words into the statement of the petitioner which do not exist. The aforesaid statement contained in the grounds of detention show that the detaining authority had inferred from the statement of the petitioner that he had admitted his active involvement in the disposal of contraband goods.
(43) The second additional contention which had been raised was that sufficient time was not available with the detaining authority to have considered all the material on record. There is no merit in this contention. A similar contention has been raised in the case of Ishwar Punjabi but without success. It follows, therefore, that there is no infirmity the order of detention or in the continuing detention of the petitioner.
(44) The petitioner is a close relative of Ishwar Punjabi and he was also detained, along with lswar Punjabi, pursuant to the order of detention dated 7th December, 1988 having been passed under section 3(1) of the Cofeposa Act. It was stated in the said order that he was being detained "with a view to preventing him from engaged in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing and keeping smuggled goods". The grounds of detention which were served on the petitioner were similar to the one which had been served on the other detenus including lswar Punjabi. Apart from reiterating the contentions which have been raised by Ishwar Punjabi in Cr. W. Ii of 1989, which contentions have already been disposed of, the learned counsel contended that the only admission of the petitioner was that he was an employee of Ishwar Punjabi and he carried out his instructions on two or three occasions which may attract the provisions of sub-clause (iii) of Section 3(1) of the Cofeposa Act. It was contended that the provisions of Sub-clause (iv) could not be attracted and, in -any case, the detaining authority cannot use both sub-clause (iii) and sub-clause (iv) jointly and cumulatively.
(45) The detaining authority has relied upon his statement and other material on record and corns tothe council that the petitioner should be detained for the reasons stated in the detention order. Reliance was placed in the grounds of detention on the petitioner's statement wherein he is alleged to have ad- mitted his involvement in the disposal of contraband goods. The disposal of these goods would have involved transporting the same from one place to the other. Furthermore, Bhagwan Dass, servant of Ishwar Punjabi is alleged to have stated that he used to give delivery of the contraband goods to persons sent by Ishwar Punjabi and identified by him and the petitioner and one Shri G. D. Mehta. This action on the part of the petitioner could legitimately be regarded as the petitioner dealing in smuggled goods. Section 3(1) contemplates order of detention being passed with a view to preventing the detenu 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 otherwise 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.
Section 5-A clearly contemplates passing of an order of detention under section 3(1) on two or more grounds. This means that a detention order may be passed on any of the grounds mentioned in section 3(1) singly or in conjunction with one or more grounds. If, for example, the order of detention can be passed under section 3(1)(i) and (ii) or under section 3(1)(ii) or (iii), then there is no reason as to why the provisions of clause (iv) cannot be attracted in conjunction with clause (iii). Clause (iii), inter alia, provides a ground, namely, engaged in transporting smuggled goods. This can be different from "dealing in smuggled goods" as provided by clause (iv). The words "dealing in smuggled goods" would include, within its ambit, a situation where, like the present, the petitioner was selling goods on behalf of Ishwar Punjabi. At the same time he was, possibly, also transporting the goods from one place to another for the purpose of effecting sale. The said contention of the learned counsel for the petitioner is not well founded.
(46) Like the other detenus, the petitioner in this case, namely, Shri G. D. Mehta was also detained pursuant to the order of detention dated 7th December, 1988 having beep passed against him. This order was passed under section 3(1) of the Cofeposa Act "with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing and keeping smuggled goods". The grounds of detention which were served on the petitioner were similar to the one which were served on the other detenus. From the grounds of detention it appears that G. D. Mehta was concerned only with Konica colour films. 4600 rolls of these films are alleged to have been recovered from his van and 1100 roils are alleged to have been recovered from his premises. This is apart from 59500 colour film rolls which were recovered from the Sainik Farms.
(47) The main additional contention which has been raised by the learned counsel for the petitioner in this case is that on 2nd January, 1989 a representation was made to the Advisory Board, the detaining authority and the Secretary, Government of India, Ministry of Finance. In the said representation the petitioner had specifically asked for some documents. The documents which were sought from the respondents were the search warrants and the search authorisations which had been referred to in the Panchnama which had been supplied to the petitioner. The petitioner received a letter dated 20th January, 1989 whereby Central Government rejected his representation. It was, however, stated therein that copies of the search warrant and the search authorisation would be supplied by the Collector of Customs directly to the petitioner. The Advisory Board met on 24th January, 1989 but the search warrant and search authorisation were supplied on 10th February, 1989 and 17th February, 1989. The contention is that the non-supply of the said search warrant and search authorisation prior to 24th January, 1989 seriously prejudiced the petitioner in making his representation before the Advisory Board and, therefore, the continued detention of the petitioner should be quashed.
(48) On behalf of the respondents, it has been contended that the representation dated 2nd January, 1989 did not state that the said documents were required so as to enable the petitioner to make a representation to the Advisory Board. It is further contended, while relying upon Mohd. Saleem v. Union of India and others, 1989 (2) Delhi Lawyer 109(15), that it was not necessary or obligatory on the respondents to have supplied the said documents within a specified period of time.
(49) The request of the petitioner with regard to supply of the documents was contained in the following words :
"That although it is mentioned in the Panchnama supplied to the petitioner that searches were carried out on the basis of search warrants or authorisations the petitioner has not been supplied with any of the search warrants/search authorisations mentioned in different Panchnamas. This request of the petitioner for supply of these documents referred to and relied upon by the detaining authority is without prejudice to his right to challenge this in writ petition."
It is true that the petitioner did not state that the said documents were required so as to enable him to make an effective representation it is implicit therein that the said documents are required by him in connection with his detention. There would be no reason or occasion for the petitioner to ask for these documents except with a view to refer to or rely upon them for the purpose of mating a representation against his continued detention. It is not as if the respondents refused to supply the said documents. The respondents had in fact advised the Collector of Customs to supply the documents and the documents were subsequently supplied. The documents would not have been supplied if the respondents had felt that they were not being asked for by the petitioner for the purpose of making a representation. The obligation of the detaining authority to supply the documents is so as to afford the detenu an opportunity to make effective representation. The fact that the documents were supplied indicates that the request of the petitioner contained in his letter dated 2nd January, 1989, for supply of documents, was required to be met so as to comply with the provisions of Article 22(5) of the Constitution.
(50) The next question which arises is as to what is the effect of the non-supply of these documents. A similar question had arisen in this Court and a consistent view which has been taken has been that when some documents, which are under the power or custody of the detaining authority, are asked for by the de- tenu then the same should be supplied and in the event of noneupply of the same the continued detention would be vitiated. Two Division Bench judgments of this Court, namely, Govind Ram v. Union of India and others, (1985) I Crimes 777(16) and M.M. Yusuf v. Union of India & others, Cri. W. No. 324 of 1986 decided on 17th March, 1987(17) have, inter alia held that documents which are mentioned in the Panchanama, and which Panchnama is annexed to the grounds of detention, should be regarded as documents which have been referred to by the detaining authority. It was further held in Yusuf's case (supra) that if any such document is asked for then it was obligatory on the detaining authority to supply the same. The afore- said two D 'vision Bench authorities were followed in Suleman Ahmad v. Union of India another, Cr. W. No. 58 of 1989 decided on 12th May, 198 9" 18). In that case, the petitioner had, inter alia, asked for documents mentioned in the Panchnama including search authorisations. The said documents were not supplied before the meeting of the Advisory Board but were supplied subsequently. It was held that the non-supply of the said documents within a reasonable ime had prejudiced the petitioner's right in making an effective and purposeful representation before the Advisory Board and, therefore, his continued detention was vitiated. The facts of the aforesaid case are clearly applicable to this case.
(51) It is necessary at this stage to notice that Bahri, J. in Mohd. Saleem's case (supra) has held that documents which have neither been relied upon nor referred to even casually or incidently in the grounds of detention were not required to be supplied to the petitioner. It appears that the attention of the learned Judge was not invited to the aforesaid two decisions of: the Division Bench of this Court in Govind Ram and M. M. Yusuf's cases. In addition thereto, other decisions on this point holding a view which is contrary to what has been expressed by Bahri, J. are Vinod Kumar Arora v. Administrator, Union Territory of Delhi and others. 1984 Cri. LJ. 1344 (DB)(J9), Om Parkash Mahendru v. Un?on of India & Others, Cri. W. No. 348 of 1988. decided on 16th December, 1988 (20) by Santosh Duggal, J. In view of the aforesaid decisions, learned counsel for the respondents would not be justified in relying upon the observations of Bahri, J, in Mohd. Saleem's case (supra), which observations, it is respectfully submitted, do not represent the correct state of law on the point and is contrary to at least three Division Bench decision? of this Court.
(52) From the aforesaid discussion, it will follow that noneupply of search warrants and search authorisations asked for by the petitioner before the Advisory Board met on 24th January, 1989 had caused prejudice to the petitioner and violated his rights under Article 22(5) of the Constitution. Following the aforesaid decision of this Court, and the decision in Suleman Ahmed's case (supra) in particular, it must be held that the continued detention of the petitioner stands vitiated.
(53) Before concluding, it will be useful to refer to and reflect on the following observations of Sabyasachi Mukharji, J. in Prakash Chandra's case (supra) at page 701 :
"PREVENTIVEdetention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that, yet these must be looked at from a pragmatic and commonsense point of view. The exercise of the power of preventive detention must be strictly within the safeguards provided. We are governed by the Constitution and our Constitution embodies a particular philosophy of government and a way of life and that necessarily requites. under standing between those who exercise powers and the people over whom or In respect of whom such powers is exercised. The purpose of exercise of all such powers by the Government must be to promote common well-being and must be to subserve the common good. It is necessary to protect therefore the individual rights in so far as practicable which are not inconsistent with the security and well-being of the society. Grant of power imposes limitation on the use of the power. There are various procedural safeguards and we must construe those in proper light and from pragmatic commonsense point of view. We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self- preservation and protection of the country and national security may claim in certain circumstances higher priority."
(54) The enactment of the preventive detention laws, in effect, amounted to an admission of the failure of the normal laws of the land in bringing the culprits to book and in checking the growing menace of such nefarious activities like smuggling and drug trafficing. Even the enactment of more stringent laws like the Narcotic Drugs and Psychotropic Substance Act, 1985 has not succeeded in achieving the objective for which it was enacted. Instances are many where persons apprehended for committing economic offences, under the normal laws, are ether released on bail or spend their time in hospitals on account of "illnesses". Curiously enough it is mostly such alleged economic offenders, for whom there is no birth of money, who protest the most about the violation of law by the detaining authorities. It is the land grabbers, illegal colonisers and economic offenders who have succeeded in helping the Courts in "development of laws" which has resulted in nearly all the detention orders, passed against them, being quashed on technical, if not hypertechnical, grounds. There is hardly any detention order which is set-aside on merits. While the ordinary laws of the land have not caused concern to such violators of the law, the concern for their rights by the Courts, hearing petitions ior habeas corpus, and the consequent interpretation of the law is resulting in making the preventive detention laws a dead letter. Perhaps time has come to take a fresh look at the present state of the law and to consider whether the law relating to preventive detention of economic offenders and drug traffickers should not be made more effective and workable, without causing serious prejudice to the detenus. While interpreting such laws, should one shut eyes to the realities of the situation ? When there has been substantial compliance with the provisions of law, and the Court is satisfied beyond all manner of doubt that no prejudice has been caused to the detenu, should the detention orders be still quashed on purely hypertechnical reason. It is indeed unfortunate that a feeling is growing that today such rich persons are above the law. Not only have the detention orders of the economic offenders and drug traffickers been quashed on technical reasons, the Courts also tend to give expeditious hearing to such cases, of rich economic offenders, while several hundred ordinary accused who are awaiting trial or hearing of then appeals, but who are not so affluent have been languishing in jails for years because the Courts have not had time to hear their cases.
(55) For the aforesaid reasons, Criminal Writ Petition Nos. 9, 10 and Ii of 1989 are dismissed. The writ petition filed by G.D. Mehta (Crl. W. No. l18 of 1989) is allowed and the rule is made absolute and it is directed that he be released forthwith unless he is required. to be detained in some other case or proceedings.