Bombay High Court
Rajesh R. Kushalani And Anr. vs Mahendra Prasad, Jt. Secretary Govt. Of ... on 20 April, 1992
Equivalent citations: 1992(3)BOMCR272
JUDGMENT N.P. Chapalgaonkar, J.
1. Both these writ petitions challenge orders separately made in respect of Rajesh R. Khushalani and Tushar M. Shah under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ordering their detention and housing them at Central Prison, Bombay. Since the points of facts and law to be considered and raised in these petitions are common, they are being disposed of by this common judgment.
2. It is alleged that M/s. Tushar Enterprises, M/s Aum Enterprises and M/s. Shah Enterprises had remitted abroad foreign exchange worth Rs. 5 crores with the help of some fake import documents presented to Union Bank of India. It is alleged that the business which was used as a cover was import of chemicals and besides some genuine transactions with the help of one Ram living in Hongkong a conspiracy was hatched and Ram was helping to prepare the said documents and send them to India. Four persons namely, Tushar Shah, who is said to be the King-pin ; Kirit L. Shah; Pankaj Valia and Ramesh Khushalani came to be detained by separate orders passed by Shri Mahendra Prasad, Joint Secretary to the Government of India on 5th of September, 1991 under section 3(1) of the COFEPOSA Act, 1974. All the four detenues had challenged the detention orders and out of them, Writ Petition No. 1375/1991 challenging the detention order of Kirti Shah came to be allowed by Division Bench of this Court and he was directed to be released. Whereas, Writ Petition No. 1408/1991 challenging the detention of Uday T. Valia came to be dismissed and his detention was confirmed by this Court on 4th March, 1992. The detentions of rest two detenues are the subject matters of the present writ petitions before us.
3. Shri Madhu Patel, learned Counsel appearing in support of Criminal Writ Petition No. 1448/1991 made following submissions for our consideration :
(1) The statement of the co-accused Harish Shah was considered by the Detaining Authority but retraction of the said statement was not placed before the Detaining Authority and was not considered. Therefore, the material which was necessary for the proper consideration was kept out of the consideration of the Detaining Authority.
(2) Some other documents relied by the Detaining Authority are not supplied to the detenu inasmuch as the copies thereof are illegible.
(3) In paragraph 14 of the grounds of detention, reference has been made to 11 bills of entry and it has been stated that the Bombay Customs has reported that they do not tally with the records. But certain endorsement is found only on the documents at serial Nos. 1 to 7 but no such endorsement is copied down in the copies supplied to the detenu in respect of the documents at serial Nos. 8 to 11. Since these are important documents constituting the basic facts, the non-supply of the said documents along with the material entries has infringed the right of the detenu under Article 22(5) of the Constitution of India and has deprived him for the opportunity to represent.
(4) That, the grounds supplied and sought to be supported by the Detaining Authority in the affidavit submitted before this Court materially differ thereby vitiating the subjective satisfaction which is the necessary pre-requisite for a detention order.
(5) Undue delay in executing the detention order has snapped the relation between the purpose of detention and the detention order and that the grounds have become stale.
4. Apart from these submissions for which the foundation was made in the petition, Shri Patel also wanted to submit that though the grounds of detention mention that the application for bail of the detenu was granted whether the detenu has actually availed the benefit of it has not been brought on record and considered by the Detaining Authority. There is no foundation for this oral submission of Shri Patel in the petition and apart from this, the record reveals that the fact was known to the Detaining Authority that the bail was availed of by the detenu and, therefore, it is not necessary to consider this submission.
5. Shri Shirish Gupte, learned Counsel appearing in support of Criminal Writ Petition No. 1412/1991, submitted only two points.
Firstly he adopted the same arguments which Shri Patel has advanced about the non-supply of four bills of entry along with the customs endorsement thereon and the only other point urged by him was about the non-application of mind. He submitted that paragraph 13 of the grounds of detention supplied to Rajesh R. Khushlani contains a statement that "You and also S/Shri Ramesh Bhushlani, Kirit L. Shah, Tushar Shah retracted respective statements". This indicates that the sentence is taken out from the grounds which were framed and supplied to Pankaj Valia, a co-detenu and indicates that the Detaining Authority has not taken care to consider the grounds against this particular detenu afresh and has barely copied them down from the grounds framed and supplied to the other detenu and thereby this is the case of non-application of mind. These submissions were replied by Shri R.M. Agarwal for the Union of India and Shri S.C. Page appearing for the State and they supported the impugned order of detention Mrs. R.P. Desai appearing for State in W.P. No. 1412 of 1991 also made submissions in defence of the detention order.
6. First contention raised by Shri Madhu Patel, appearing for the petitioner in Writ Petition No. 1448 of 1991, is about the non-consideration of the retraction of the statement given by one Harish Shah by the Detaining Authority though the statement made by Shri Harish Shah was considered by the Detaining Authority, the latter retraction was not brought to the notice of the Detaining Authority and was not considered by him. Shri Patel further submitted that on this very count the Division Bench of this Court, of which one of us (Puranik, J.) was a member, was pleased to allow the writ petition and set aside the detention of Kirit Shah, a co-detenu in Writ petition No. 1375/1990. We have gone through the statement of Harish Laxmichand Shah under section 40 of Foreign Exchange Regulation Act, 1973 recorded on 21st February, 1990. The tenor of the statement appears to be that the sister of the deponent namely, Nima, is married to Tushar Shah and he was helping Tushar Shah in his business. There is no confession about the involvement in any crime deposed in this statement, and we have also seen that the retraction letter dated 27th June, 1991 by Harish Shah, the deponent of the aforesaid statement addressed to the Assistant Director, Enforcement Directorate, Bombay, wherein what was asserted by Harish Shah is that Tushar Shah was using the premises of the deponent as a drama producer and he is not concerned with or aware of other activities of the said Tushar Shah. He was also informed by this letter that the statement under section 40 of Foreign Exchange Regulation Act, 1973 was taken from him under force, coercion and duress. Nothing much incriminating was elicited from the deponent by the authorities of the Enforcement Directorate. Looking to this fact, neither the statement nor the retraction could have played much part in the detention to the present detenu.
7. Very point was urged before another Division Bench of this Court consisting of Sujata Manohar and B.N. Deshmukh, JJ., in Criminal Writ Petition No. 1408 of 1991 which has challenged the detention of one Pankaj Valia, a co-detenu. The Division Bench was pleased to observe as under :
"What is not placed before the Detaining Authority is the retraction or a statement made by the third party; who is neither a detenu nor a co-detenu. Even if this statement is ignored or obliterated, there are many other grounds on which the order of detention could be sustained in the present case."
Referring to the judgment of another Division Bench in a co-detenu's case i.e. Criminal Writ Petition No. 1375/1991, the Division Bench noticed that the Division Bench hearing Writ Petition No. 1375/1991 was told that Harish Shah was a co-detenu which was contrary to the facts. The release of Kirit Shah was ordered by the Division Bench solely on the basis that the retraction of co-detenu was not considered by the Detaining Authority along with the statement earlier recorded under section 40 of the Foreign Exchange Regulation Act, 1973. The Division Bench hearing Writ Petition No. 1408/1991 relied on the decision of the Supreme Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, . In this case, retraction of the detenu was not considered by the Detaining Authority. Noticing that apart from the confessional statement there were also other grounds on which the order of detention could be sustained, Supreme Court was pleased to hold that the order of detention would not be vitiated merely because the retraction was not considered by the Detaining Authority. In the instant case, the retraction is not by the detenu or a co-detenu but by a third person. Secondly, Shri Agrawal appearing for the Union of India also made a statement that the Department does not propose to proceed against this deponent, namely, Harish Shah, since sufficient evidence is not available against him. We have also, as aforesaid, examined the statement and do not find that it can play any part in the subjective satisfaction of the Detaining Authority and, therefore, the contention raised will have to be rejected.
8. Both Shri Madhu Patel, learned Counsel appearing in support of Writ Petition No. 1448/1991 and Shri Shirish Gupte, learned Counsel appearing in support of Writ Petition No. 1412/1991, urged that some of the documents are not legible and copies of four bills of lading out of the total of 11 bills do not contain the endorsement of the Customs Authorities that they do not tally with the records suggesting that theses are forged documents. We have put in a specific question to Shri Patel as to what documents are not legible. He has pointed out page Nos. 43, 121, 125, 126, 127, 130, 141, 143, 144, 145, 146, 209 and 210 in the English compilation. It is an admitted fact that the detenu was supplied with the translation of all these documents All Hindi translations are legible and the learned counsel was unable to point out as to what material portion was not conveyed to the detenu because of the illegibility of the documents. Some of the objections of the legibility were to the blured rubber stamp of the Bank. In one of the documents a telex message was gain typed because it was not legible and a typed copy was supplied. Some were the copies of the blank forms which were found in possession of the persons detained. Copies of such forms are bound to be blank forms since no entries were in the original. The objection can hardly be considered to be valid one.
9. Apart from these objections of general nature, strong grievance was made in respect of three documents which are at page Nos. 127, 130 and 141 in the English compilation and their Hindi translation are at page Nos. 777, 539 and 551 respectively. Relying on Kirit Kumar Chamanlal Kundaliya v. State of Gujarat, , it was submitted by petitioners Counsel that this Court would not be competent to look to the relevance of the document, if it is established that document was relied and is not supplied or copy is illegible. If the document is a basic fact and it is not supplied then Shri Patel's submission would be valid one. But if the document is only an evidence of basic fact and the contents of the document are communicated in another accompanying document and it is legible, the submission would loss importance. Shri patel has also relied on Bhupindersingh v. Union of India, in support of his submission about consequence of illegible documents. In the instant case, document at page No. 127 is a list about the bills in respect of Royal Plastic Corporation. It appears to be a part of the communication from the Union Bank of India to the Royal Plastic Corporation, Pydhoni, Bombay- 400 003 though other entries in the document are legible, entries in respect of the part of this compilation is not legible and hence not translated. Documents at page Nos. 130 and 141 are both memos of costs by the Union Bank of India, Khand Bazar Branch and are addressed to M/s. Shah Enterprises and M/s. Aum Enterprises respectively. This document accompanies a covering memo by the Bank of India, 11, Canton Road, Kewioon addressed to the Union Bank of India and which contains the same description about the bill of collection referred in the document at page No. 130. Document at page No. 141 is accompanied by a document at page No. 140 which is a covering letter by the Bank of India, Singapore, addressed to Union Bank of India. The description about the bill referred to in this document (page 141) also contains in the document at page No. 140 also. This being the position, it cannot be said that the legibility about this document has materially affected the right of representation of the petitioner. Bills were drawn by Bank outside India and were sent to the Bank in India. The description about the bill was conveyed in the memo by the Bank outside India to the Bank in India. And if all documents are read together they sufficiently convey the meaning of the contents therein. Secondly, it must be borne in mind that these documents are subsidiary facts in the nature of evidence and they are to substantiate and support the main basic fact about the transaction in which the detenu has participated.
10. Similar grievance was made on behalf of Pankaj, a co-accused in Writ Petition No. 1408 of 1991 and after considering it the Division Bench of this Court consisting of Sujata Manohar and B.N. Deshmukh, JJ., was pleased to reject the contention after examining the document in question. It is necessary to note that the documents which were supplied to the detenu in Writ Petition No. 1408 of 1991 and in both the present writ petitions were one and the same bunch of documents.
11. We will now consider the contention raised by Shri Patel and Shri Gupte about the non-supply of four bills of lading along with the customs endorsement thereon. Though Shri R.M. Agrawal learned Counsel for the Union of India and the Detaining Authority, wanted to submit that this point is concluded in Criminal Writ Petition No. 1408/1991, we do not find it to be the fact. The contention raised before us in respect of the four bills of lading not having the material entry in the copies was not specifically considered by the Division Bench consisting of Sujata Manohar and B.N. Deshmukh, JK., in Uday T. Valia's case. In paragraph 14 of the grounds supplied to the detenu, there is a mention of in all 11 bills of entries. A statement has been made in paragraph No. 14 that on enquiries with the concerned shipping agents by Union of India, Bombay, it has been found that some of the bills of lading relating to import transaction of the firm floated by him were not genuine. Similarly, a number of bills of entry obtained from the Bank were also referred to Customs Authorities at Bombay and Madras for verification. However, it has been reported by the Bombay customs that the following bills of entry do not tally with their record. After this statement, a list of 11 bills of entry is given. It is true that neither in the English version nor in the Hindi translation supplied, bills of entry at serial Nos. 8, 9, 10, and 11 contained the endorsement of the Bombay Customs, that these bill do not tally with their record though certain endorsement is there in the original. Presently, the detenu was not supplied with the material about the opinion expressed by the Bombay Customs that these documents do not tally with the entries in their record. It is the submission of Shri. Madhu Patel that transactions which are evidenced by entries 1 to 11 in this paragraph do constitute a single transaction and since the material in respect of all or part of it is not supplied, the whole ground must fail. We are afraid, that we would not be able to accept this submission. The bills of entry at serial Nos. 8 and 9 pertain to M/s. Shah enterprises and bills of entry at serial Nos. 10 to 11 pertain to Tushar Enterprises. When different trading concerns were floated by the detenues in their design to remit foreign exchange illegally out of the country. Every transaction is a separate transaction and constitutes distinct violation of the statute. Different amounts were remitted as the value of the goods imported by these 11 bills. This being the position, though all these transactions may be the outcome of the same design and by the same design and by the same modus operandi, they do not necessarily constitute part of a single transaction, However, in view of the provisions of section 5-A inserted in the statute book, though the transactions at serial; Nos. 8 to 11 may not constitute a valid ground for the detention, it would not in any way affect the validity of the detention order based on the transactions which are witnessed by bills of lading at serial Nos. 1 to 7.
12. Shri Madhu Patel, learned Counsel for the petitioner, submitted that the Detaining Authority had arrived at the subjective satisfaction about the need of detention of the detenu on the basis of some total effect of all the transactions witnessed by these bills of lading and the subjective satisfaction is the cumulative effect of all the material concerned. If one of the grounds fails, the whole detention order should fall on the ground since all these are inseparable from each other and one does not know, whether in the absence of some of the grounds, the Detaining Authority would have subjectively satisfied himself about the need to detain the detenu. The logical presumption that the Detaining Authority had considered all the grounds against the detenu and arrived at a subjective satisfaction as a cumulative effect of all the grounds taken together, is not available after the introduction of section 5-A on the statute book. Since a legal fiction has been introduced that a separate detention order shall be deemed to have been made based on each of the ground separately, there will not be any question of cumulative effect of all the grounds. Another submission of Shri Madhu Patel that the activities witnessed by bills of lading at serial Nos. 1 to 11 are only evidence of a single ground i.e. the indulging in activities prejudicial to the conservation or augmentation of foreign exchange, is also without any foundation. This argument was considered by the Supreme Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni, . The learned Judges rejected the contention that the basic ground would be smuggling and the instances given would be subsidiary grounds. It observed thus :
"What the Act provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention."
13. Shri Patel further submitted that the constitutional requirement of Article 22(5) cannot be given a goby by resorting to section 5-A. According to him, the words "invalid for any other reason whatsoever" appearing in clause (v) of sub-section (a) of section 5-A cannot be read to mean anything more what is illustrated in clauses (i), (ii), (iii) and (iv) by application of rule of ejusdem generis. Even this argument has also been repelled by Division Bench of this Court in the case of Smt. Bina Mohamed Shakeel Wahis Ahmed v. State of Maharashtra & others, 1983 Cri.L.J. 762 wherein after discussing the scope of rule of ejusdem generis, it was observed that the words" invalidate for any other reason whatsoever" would exclude the rule of ejusdem generis since the said clause is all comprehensive and could not be construed in a limited sense. Therefore, even if one or more of the grounds fail on the ground of non-supply of the documents thereby infringing Article 22(5), the said infringement will not invalidate the order if it can be sustained on the basis of the remaining grounds wherein the constitutional requirements of Article 22(5) are complied with.
14. Further contention raised by Shri Patel is that the detention order is passed to prevent the petitioner from indulging any activities prejudicial to the conservation of foreign exchange, whereas an affidavit submitted by the detaining authority speaks about indulging in the activities detrimental to augmentation of foreign exchange and conservation of foreign exchange. According to Shri Patel, augmentation of foreign exchange and conservation of foreign exchange are two different things and, therefore, this is a case wherein the detaining authority has not applied his mind properly and wants to support the detention order on the basis on which it was not passed. Firstly, we do not find a contention raised in the petition challenging the subjective satisfaction. Affidavit of Roop Chand which is filed at Page 45 in Criminal Writ Petition No. 1448/1991 did mention the augmentation of foreign exchange. But principal object of filing of the affidavit was, as is explained in the latter affidavit, to explain the delay. In a latter affidavit filed by Shri Mahendra Prasad, the detaining authority itself has explained the position. Augmentation of foreign exchange and conservation of foreign exchange are two sides of the same coin and an activity can be prejudicial to both of them. Roop Chand, who has filed the first affidavit, is not a detaining authority and, therefore, no importance can be given to this so called discrepancy.
15. Shri Gupte, learned Counsel appearing in support of Criminal Writ Petition No. 1412/1991, submitted that para 13 of the grounds supplied to the detenu, Ramesh Khushlani, contains a statement that "You and also S/ Shri Ramesh Khushlani, Kirit L. Shah, Tushar Shah retracted respective statements." Since the grounds are addressed to Ramesh Khushlani, He is mentioned by pronoun "You" and further mention of Ramesh Khushlani indicates that the whole sentence is taken out from the grounds supplied to another detenu i.e. Pankaj Valia. Though the sentence appears to be incorrect, we do not think that much capital can be made out of it. In the very paragraph, the first sentence addresses detenu Ramesh Khushlani as "You" and mentions rest of the three collaborators as Tushar M. Shah, Kirit L. Shah and Pankaj Valia. At all other places detenu has been referred as pronoun "You" and there is no mistake about it. Merely because one of the sentence is incorrectly drafted, no inference of non-application of mind can be there and, therefore, this contention raised by Shri Gupte will have to be rejected.
16. This takes us to the last point urged by Shri Patel about the delay in executing the order of detention Shri Patel relied on Shafiq Ahmad v. District Magistrate, Meerut, , T.A. Abdul Rahman v. State of Kerala, and K.P.M. Basheer v. State of Karnataka, 1991(1) Crimes 996. In all these cases, delay was unexplained and in the facts of these cases, it was held that delay unexplained would throw considerable doubt on genuineness of subjective satisfaction. But Supreme Court in Shafiq Ahmad's Case (Cited supra) has laid down guideline as to how delay is to be viewed. It has observed thus :
"It is, however, not the law that whenever there is some delay in arresting, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances."
In the instance case, the order of detention was passed on 5th September, 1991 and it was executed on 27th November, 1991 when the detenu surrendered himself. This delay, according to the learned Counsel, is fatal to the detention since the grounds have become stale. We do not find any merit in this contention. It has been explained by the respondents that when the detention order was passed, the documents had to be translated and thereafter it was sent to the Home Department of the Government of Maharashtra for execution on 30 the October, 1991 and thereafter constant efforts were made to arrest the proposed detenu but he had gone pilgrimage to Gujarat. He was expected back on 10th November, 1991. Efforts were made on that day and subsequently again on 25th November, 1991 but on both the days, detenu was not available at his premises and his whereabouts could not be ascertained and on 27th November, 1991, the detenu surrendered himself to the Police. This being the position, we do not think that there is any undue delay in executing the order of detention. Delay ipso facto either in passing the order of detention or in executing the same will not vitiate the order unless it is shown that the grounds have become stale. See Abdul Salam @ Thiyyan v. Union of India & others, . In the instant case, delay is explained and we do not think that there was unreasonable delay in arresting the detenu for the execution of the detention order.
17. In the result, both the petitions fail and are dismissed accordingly. The orders of detention are hereby confirmed.