Bombay High Court
Smt. Zarina Nafees Hyder Rizvi vs State Of Maharashtra And Ors. on 12 October, 1998
Equivalent citations: 1999CRILJ434
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. By this petition preferred under Article 226 of the Constitution of India, the petitioner who is the mother of the detenu Sayed Anees Hyder Rizvi @ Anees Hyder AH, seeks to impugn the detention order dated 4-12-1997 passed by the 2nd respondent Mr. G.S. Sandhu, Secretary to the Government of Maharashtra, Home Department (Preventive Detention), Mantralaya, Mumbai, detaining the detenu under Section 3(1) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), hereinafter referred to as the COFEPOSA Act.
2. The detention order dated 4-12-1997 along with the grounds of detention bearing the same date was served on the detenu on 7-2-1998.
3. The prejudicial activities of the detenu necessitating the issuance of the detention order as contained in the grounds of detention, in brief, are as under :-
On 7-4-1997, the Security Officers posted at the departure No. 10 of Sahar International Airport, Mumbai, were clearing passengers after security check for boarding flight of Singapore Airlines SQ 421 scheduled to depart at; 10.35 p.m. At 10.30 p.m. the detenu approached the security for clearance. The hand bag which he was carrying was put on X-ray machine for screening. After completing the formalities connected with the security check-up, he approached the X-ray machine to collect the same. The officers who found his movements to be suspicious enquired about the contents of hand bag. Ultimately, on examining it, they found four boxes of sweets inside it. They found in the said boxes US $ 6,00,000 equivalent to Rs. 2,25,30,000. On the person of detenu they found Singapore $ 102 equivalent to Rs. 2600. Since the detenu did not have the required legal documents, the said currency was seized. On 8-4-1997 and 9-4-1997, his statement under Section 108 of the Customs Act was recorded. He was further interrogated under the said provision on 21-4-1997. In the said statement he stated that four boxes of sweet were given to him to be carried to Singapore and the US Dollars seized were concealed in them.
A perusal 6f the grounds of detention also shows that the detenu was apprised of his right of making representation to the various authorities.
4. We have heard Mr. Maqsood Khan for the petitioner and Mr. D.G. Bagawe for the respondents. Although, in the petition, Mr. Maqsood Khan has pleaded a large number of grounds, but since we are of the judgment that this petition deserves to be allowed on ground No 1 4.M alone, we are not adverting to them.
Ground No. 4(x), in short, is that the show cause notice dated 5-9-1997 was issued by the Sponsoring authority to the detenue and he had replied to the same on 27-10-1997 but only the show cause notice was placed by the sponsoring authority before the detaining authority and the reply of the detenu to the said- notice was not placed by it before the detaining authority. It is alleged in the ground that the consequence of such a default is twofold:- (a) Since the reply to the show cause notice was a vital document, its non-placement by the sponsoring authority before the detaining authority at the time when he passed the impugned detention order, vitiated the said order on account of non-application of mind; and (b) since the reply was a vital document, non-furnishing of its copy by the detaining authority to the detenu hampered upon the fundamental right of the detenu to make an effective representation as mandated by Article 22(5) of the Constitution of India.
5. Ground No. 4(x) has been replied to in two returns dated 7-10-98 viz. those of the detaining authority and of Shri V.V. Sarma, Assistant Director of Directorate of Revenue Intelligence, Bombay Zonal Unit, Mumbai. Their perusal shows that it has not been disputed by the respondents therein that the detenu's reply dated 27-10-1997 was neither forwarded by the Sponsoring Authority to the Detaining Authority before the latter passed the impugned detention order nor the detaining authority sent a copy of the same to the detenu.
In para 11 with respect to ground No. 4(x), the detaining authority has averred that the copies of the documents relied upon by him were supplied to the detenue and consequently non-consideration of the detenu's reply to the show cause notice dated 5-9-1997 had neither vitiated his subjective satisfaction on account of non-application of mind nor not supplying of its copy had hampered the detenu from making an effective representation. In the said para, the detaining authority has deposed that the detenu's reply dated 27-10-1997 was not a vital document and would not have weighed in the detenu's favour, even had it been placed before him in arriving at his subjective satisfaction.
Ground No. 4(x) has been replied to in para 2 of the return of Mr. V.V. Sarma. In the said paragraph, he has averred that since the detenu had forwarded the reply to the show cause notice dated 5-9-1997 to the Commissioner of Customs (Airport) who is an independent adjudicating authority and had not forwarded a copy of the same to the sponsoring authority, the sponsoring authority was not aware of the detenu's reply dated 27-10-1997 to the show cause notice and consequently could not forward the same to the detaining authority.
6. We have examined the averments contained in ground 4(x) of the petition and the reply furnished to it in the two returns mentioned above. We are constrained to observe that we do not find any merit in the averments contained in the two returns filed on behalf of the respondents.
We have no compunction in observing that the averment in para 2 of the return of Shri V.V. Sarma to the effect that since the detenu's reply to the show cause notice dated 5-9-1997 was forwarded to the Commissioner of Customs (Air-port) and he had not forwarded a copy of the same to the sponsoring authority, the sponsoring authority was not aware of it and did not forward the same to the detaining authority is unworthy of acceptance. In this respect, it would be necessary to advert to the notice dated 5-9-1997 which is at pages 318 to 328 of the compilation. Its perusal shows that not only was it issued by the Commissioner of Customs (Airport), but the reply was to be submitted to the said authority. That being the position and the sponsoring authority having forwarded a copy of the said notice to the detaining authority, it is only fair to presume that the sponsoring authority knew that the detenu would be furnishing his reply to the said authority and consequently if was duty bound to enquire about the detenu's reply to the said notice from the Office of the Commissioner of Customs (Airport), Sahar, Mumbai. And for its failure to do so it must suffer the consequences.
6(A). It should always be borne in mind that eternal vigilance is the price which the law expects from the sponsoring and detaining authorities, if they want a preventive detention order to be sustained by Courts of law. Their laxity is detenus paradise.
6(B). In this connection it will be pertinent to refer to a decision of the Supreme Court . The Union of India v. Marioharlal Narang. A perusal of paras 9 and 10 of the said decision would show that a similar stand was taken before the Apex Court and it was urged from the side of the appellants that the detaining authority was not expected under law to carry out the process of collection of any material about any Court proceedings or proceedings before other authorities for the purpose of issuance of detention order and the Supreme Court observed in para 10 that such a stand "betrays an attitude, to put it mildly, that lacks grace.
7. We are not impressed by the averment in para 11 of the return of the detaining authority that the detenu's reply to the show cause notice dated 5-9-1997 was not a vital document. When the averments contained in the said notice are conjunctively examined with the detenu's reply dated 27-10-1997 it becomes crystal clear that his reply was a vital document. From perusal of para 22 of the show cause notice, it appears that the detenu had to show cause in respect of two things :----
(a) that the foreign currency of US$ 6,00,000 (Rs. 2,10,32,478.60 as realised by S.B.I.) under seizure was attempted to be smuggled out of India illegally and thus appears to be liable to confiscation under Section 113(d) and Section 113(h) of the Customs Act, 1962 read with Section 13(2) read with Section 67 of Foreign Exchange Regulation Act, 1973.
(b) Slid Sayeed Anees Hyder Rizvi, Firoz Ebrahim Juneja, Mohammed Ishaw Jan Mohammed Memon and Mansukh Ganeshmal Sanghvi, have individually and collectively conspired to smuggle the said Foreign Currency out of India in contravention of the provisions made under Section 113(d) and Section 113(a) of the Customs Act, 1962 read with Section 13(2) and Section 67 of Foreign Exchange Regulation Act, 1973 and have therefore rendered themselves liable to penalty under Section 114 of the Customs Act, 1962.
A perusal of the grounds of detention, which we have extracted in some detail earlier, shows that the detention order under Section 3(1) of the COFEPOSA Act was clamped against the detenu on account of recovery of foreign currency of US $ 6,00,000 (Rs. 2.10,32,478.60 as realised by S.B.I.).
8. When the reply of the detenu dated 27-10-97 is examined in relation to what he had to show cause to in the notice dated 5-9-97 it becomes crystal clear that the said reply was a vital document. The reply of the detenu has been annexed as Annexure No. D to the petition and its perusal shows that some of the pleas of the detenu are as under :-
a) No foreign currency was seized from his possession and the averment of the respondents to the contrary is false.
b) He did not admit the panchnama of recovery and stated that he was not a party to it.
c) He was falsely implicated in this case.
d) The DRI Officers had not caught him.
e) His alleged statements dated 8-4-97, 9-4-97; 16-4-97, 23-4-97 and 18-6-97 were not his voluntary statements but in order to save his life and to escape from brutality from DRI officers he was compelled to sign them. Copies of the said statements were not supplied to him after they were recorded and hence he could not retract them in greater detail. However, on 9-4-97 and 17-4-97 he had retracted them before the Metropolitan Magistrate.
f) He was going to visit Singapore on a private trip and $102 equivalent to Rs. 2600A found in his pocket were carried by him in that connection. US Dollar were not his and he had not claimed them.
g) The Police Officers had committed violation of provisions of Section 46 of the FERA Act, 1973.
h) The entire investigation was carried out by the Customs Officer of the DRI in respect of Foreign Exchange which was seized by the police officers under Cr. P.C. Since the act of taking of foreign exchange was without authority of law in terms of Section 46 of the FERA Act, 1973, the entire proceedings are without jurisdiction and authority of law. The Custom Authorities were not entitled in law to take possession of foreign currency from police officer.
9. We feel that the averments contained in the detenu's reply 10 the show cause notice make it crystal clear that his reply was a vital document.
10. Mr. D.O. Bagawe, learned Additional Public Prosecutor strenuously urged that since the basic facts Were not alleged in the show cause notice and the detenu's reply was not in relation to them, neither the show cause notice nor the detenu's reply were vital documents. We .regret that we cannot accede to his contention for two reasons.
Firstly it is not the stand of the respondents in their returns that the show cause notice was not a vital document.
Secondly we have earlier extracted the contents of the show cause notice and we find its main content is that the detenu should explain the recovery of foreign currency US $ 6,00,000 made from him. This we find to be the basic fact in this case; a fact which resulted in the issuance of the impugned detention order against the detenu. Since this basic fact was contained in the show cause notice and the detenu repudiated this in his reply dated 27-10-97 both the show cause notice and the said reply were vital documents.
11. Mr. Bagawe also contended that the burden of detenu's (sic) song in his reply dated 27-10-1997 was his retraction and since the said retraction was contained in the statements made by the detenu on 9-4-1997 and 17-4-1997 before the Metropolitan Magistrate and the said statements had been considered by the detaining authority, non-placement of the detenu's reply before the detaining authority and its non-supply to him was of no consequence in law. We regret that we cannot subscribe this contention for two reasons :-
Firstly, it would be a over simplification to describe the reply of the detenu to the show cause notice as a mere retraction. A lot of more things are mentioned in it which, in our opinion, may have influenced the subjective satisfaction of the detaining authority either way had it been placed before him.
Secondly the satisfaction under Section 3(1) of the COFEPOSA Act is the subjective satisfaction of the detaining authority and this Court cannot anticipate which way his subjective satisfaction would have gone had the retraction contained in the reply to the show cause notice been placed before him for the retraction therein was in the context of the surrounding facts mentioned therein.
In this connection, it would; be pertinent to peruse the decisions of the Apex Court , State of U.P. v. Kamal Kishore Saini (para 7) and , Ayya alias Ayub v. State of U.P. (para 13)., ' In the former decision, some statements of witnesses under Section 161 of the Cr. P.C. the statement made in the bail application on behalf of the detenu and co-accused that they had been falsely implicated and the police report were not placed before the detaining authority and what was averred by the detaining authority was that even had the said material been placed before him, the subjective satisfaction would have remained the same. The said averment was repelled by the Apex Court which in paragraph 7 observed thus :-
It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act.
In the latter authority, as is evident from a perusal of para 13, a telegram had been sent by the detenu but the same was not placed before the detaining authority. From the side of the respondents it was argued that the telegram was not sent at 12.30 midnight as claimed by the detenu but at 12.30 noon. The Supreme Court in spite of observing that the case of the respondents was extremely probable, felt that nonplacement of the telegram before the detaining authority had vitiated his subjective satisfaction on account of non-application of mind. It felt that the telegram should have been placed before the detaining authority and it was altogether a different matter what weight the said authority may have attached to it.
12. In view of the said authorities of the Apex Court we reject the averment in para 11 of the return of the detaining authority in terms that even if the detenu's reply to the show cause notice would have been placed before him, his subjective satisfaction would have been the same.
13. For the said reasons, we feel that the detenu's reply (dated 27-10-1997) to the show cause notice dated 5-5-1997 was a vital document and its non-placement before the detaining authority has vitiated the detention order on account of non-application of mind. We also feel that since it was a vital document, the detaining authority should have supplied its copy to the detenu to enable him to make an effective representation under Article 22(5) of the Constitution of India and his failure to do so has precluded the detenu from making an effective representation under the said provision.
14. In our view, for the said reasons, the impugned detention order cannot be sustained in law.
15. In the result, this petition is allowed. The impugned detention order is quashed and the detenu is directed to be released forthwith unless required in some other case.
Rule is made absolute.
Issuance of certified copy is expedited.