Andhra HC (Pre-Telangana)
Dasarathabhai Ramnik Shah vs State Of Andhra Pradesh on 29 April, 1993
Equivalent citations: 1994CRILJ92, 1993(44)ECC133
JUDGMENT S. Dasaratharama Reddy, J.
1. This is a petition for writ of Habeas Corpus filed by the detenu Dasarathbhai Ramnik Shah himself seeking to quash the order of detention bearing No. 1048/General A/92-1 dated 20-8-1992 passed under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred as 'the Act') by the Secretary, General Administration Department (Political), Government of Andhra Pradesh and for consequential release from detention in Central Prison, Hyderabad.
2. The brief facts of the case are as follows :
On 30-7-1992, the officers of the Directorate of Revenue Intelligence (Customs), Hyderabad noticed a jeep parked near the Parade Grounds, Secunderabad in which the detenu and another Rohidas were sitting. One Hiralal who was sitting on a scooter was found talking with the occupants of the jeep. On seeing the officials of the Directorate of Revenue Intelligence, the scooterist fled away and on search of the jeep, silver bars weighing Kgs. 350.055 gms. valued about Rupees 26,25,412.50 were recovered. On 31-7-92 the detenu gave a statement in Hindi under S. 108 of the Customs Act before the Asst. Director, D.R.I., Hyderabad to the effect that he resides at Bombay, he is driver by profession, that he can read and understand Hindi and that the silver bars are to be handed over to Pavan Jewellers, Secunderabad which is owned by Jagadish and Hiralal. The detenu also admitted in his statement that the silver bars were smuggled, that he has so far taken away the silver bars thrice from Bombay to Bangalore and twice to Bombay and that for each trip he was being paid Rs. 1,000/-. The other occupant Rohidas gave a similar statement. The detenu and other occupant Rohidas were arrested on 31-7-92 under S. 104 of the Customs Act and were remanded to judicial custody till 14-8-92 by the Special Judge for Economic Offences, Hyderabad and later the remand was extended to 24-8-92. The learned Judge rejected the bail application filed on behalf of the detenu by his order dt. 10-8-92. On 14-8-92 a telegram was sent to the Customs authorities, Hyderabad by Mrs. S. A. Bdhamale, Advocate, requesting them to be present in the High Court of Bombay on 20-8-92 for hearing of the anticipatory bail. In the said telegram, only the registration number of the vehicle was referred and the name of the person who is moving the anticipatory bail was not stated. The customs officials wrote letter to the Chief Secretary, Government of Andhra Pradesh on 19-8-92 enclosing a copy of the telegram and informed him that no copy of the petition for anticipatory bail was received by them.
3. All these facts were brought to the notice of the detaining authority by the Assistant Director, D.R.I., Hyderabad. The detaining authority thereupon passed the detention order on 20-8-1992 directing the detention of the petitioner under section 3(1)(iii) of the Act "with a view to prevent him effectively from further engaging in transporting of smuggled goods". This order was served on the detenu on 9-9-92 along with copies of the translated versions in Gujarathi and Hindi. The said detention order took note of the fact that the detenu was under judicial custody and that his being enlarged on bail in near future could not be overruled. The grounds of detention were served on the detenu on 12-9-1992 along with copies of translated versions both in Hindi and Gujarathi. There is no categorical assertion in the affidavit that the person has reveived only Gujarathi version and has not received the Hindi version. In para-20 of the affidavit it is averred that Hindi versions of the detention order and grounds of detention do not bear the seal and signature of the detaining authority. From this it follows that Hindi version also was served in addition to Gujarathi version. The counter-affidavit also is silent on this fact. However, after looking into records, we find that there are both Hindi and Gujarathi versions and during the arguments, the learned counsel for the respondent has submitted that both Gujarathi and Hindi versions were served on the detenu. The detenu sent a representation in Hindi on 21-10-92 to the Government of Andhra Pradesh requesting to revoke the order of detention. It was rejected on 2-11-1992 and the same was served on the detenu on 11-11-92.
4. Mr. Kumar, the learned counsel for the petitioner, has raised the following contentions :
(1) In the Gujarathi version of grounds of detention, there is no reference to preventing the detenu from "engaging in transporting" "the smuggled goods", that in Gujarathi version of the detention order, the words "engaging in" have not been properly translated and as the detenu does not know any other language except Gujarathi, the order of detention is vitiated by failure to observe Art. 22(5) r/w. Section 3(3) of the Act.
(2) The expression "engaged in" occurring in Section 3(1)(iii) of the Act means that there should be frequency of the transactions and a solitary instance of transport of smuggled goods, is not sufficient to detain.
(3) The representation of the detenu has not been considered by the detaining authority till now.
(4) There was no enough time for the detaining authority to apply its mind and that the grounds are the verbatum reproduction of the proposal by the sponsoring authority.
5. Point No. 1 :- In para-6 of the affidavit, the petitioner alleges that he knows only Gujarathi language and that in the Gujarathi copy of the grounds of detention, at the end of paragraph-26, the last sentence occurring in English version which is extracted below is missing.
"I have passed order of detention dated 20-8-92 under section 3(1)(iii) of the COFEPOSA Act against you in order to prevent you from engaging in clandestine transportation of contraband goods."
In para-6 of the counter, this allegation is met with the averment that as the content of the so-called omitted portion is conveyed to the detenu, no prejudice is caused to him. Neither the petitioner nor the respondent has filed the English translation of the extract of the alleged incorrect Gujarathi version. It is however not necessary as we are proceeding on the assumption that the Gujarathi version is not word to word translation of the English version.
5A. In para-26 of the grounds of detention, (both in English and Gujarathi versions) at the beginning it is clearly stated that "on careful consideration of the foregoing material, I am thoroughly convinced that you did engage in clandestine transportation of contraband silver held under seizure." Similarly, in the same para, it is stated : "I am fully satisfied that it is absolutely necessary in the interest of national economy to detain you under COFEPOSA Act, 1974 in order to prevent your effectively from further engaging in such prejudicial activities." There is no allegation in the affidavit that the Gujarathi version does not contain these sentences. As the substance of the grounds has been communicated to the detenu, the mere absence of the last sentence of the para which is only a summary and reiteration of the earlier decision reached does not in any way cause prejudice to the detenu. The Supreme Court held in A. Alangarasamy v. State of Tamil Nadu, that if variation in two versions is not consequential so as to cause prejudice to the detenu, the order is not vitiated. In another case, the same view has been reiterated in Pushpadevi v. M. L. Wadhavan, that mistakes in translation or mis-statement of facts of serious of material nature alone vitiate the order of detention.
6. The averment of the petitioner that the expression "engaged in transporting smuggled goods" has not been properly translated in Gujarathi in the order of detention, is met with the averment in para-7 of the counter wherein it is stated that the translation in Gujarathi clearly conveys the meaning. We have already held in the preceding para that in the copy of grounds of detention, it is clearly intimated to the detenu that he is being detained in order to prevent him from further engaging in transport of smuggled goods. As such the mere absence of those words in the Gujarathi version of the detention order, does not vitiate the order of detention if the main English version clearly refers to it. The object of requirement to serve copy of the order of detention as well as grounds of detention in the language known to the detenu is to enable detenu to make representation to the concerned authority in accordance with Article 22(5) of the Constitution of India.
7. The Supreme Court held in Deviji Vallabhai v. Administrator, Goa, Daman & Diu, that if the grounds of detention are communicated in the translated versions, non-supply of the translated version of the detention order is not fatal. When the detaining authority is not obliged to serve even the translated version of the detention order, when he has already served the translated version of grounds of detention, mere variation in the translated version supplied does not at all vitiate the order.
8. The learned counsel for the petitioner has relied upon unreported decision of Karanataka High Court in W.P. No. 107/88 dated 8-3-89 (Suresh Sriranga Shindhe v. State of Karanataka and others). In this case, in the Marathi version of the detention order issued under Section 3(1) of the Act, the word "engaging in" was omitted. The quashing the order of detention, the Division Bench followed another unreported decision of Division Bench in W.P. No. 49/87 Dt. 27-8-87 which relied on another decision to the Division Bench of the same Court in (1980) 1 Kant LJ 252 : (1980 Cri LJ 165). But the decision of the Supreme Court in Devji Vallabhbhai v. Administraor, Goa, Daman & Diu (1982 Cri LJ 799) (supra) was not brought to the notice of the Division Benches which decided W.P. Nos. 49/87 and 107/88. Thus, with due respect the three decisions of Karnataka High Court do not lay down the correct law.
9. Further, in the statement given under section 108 of the Customs Act, the detenu has stated that he knows to read and understand Hindi. It is also on record that he sent his representation on 21-10-92 to the authorities in Hindi. As there is no complaint regarding Hindi version, the petitioner is in no way prejudiced. The complaint about the absence of signature and seal of the detaining authority, is without substance since the law does not require that the detaining authority must affix seal and signature to the translated versions also which are served on the detenu to facilitate him to make affective representation. Thus, there is no force in the first contention of the learned counsel for the petitioner.
10. Point No. (2) :- In support of his contention, that the expression "engaged in" indicates that there should be frequency and regularity of the transactions, the learned counsel for the petitioner has relied on the decisions of Karanataka High Court reported in R. Prakash v. State of Karnataka (1980 Cri LJ 165) and a decision of the Goa Bench of Bombay High Court in R. V. Bhasin v. State, 1987 Cri LJ 1799 and the decision in Remington Rand of India v. Tahir Ali, .
11. Mr. Ravindra Rao the learned counsel appearing for the learned Advocate General contends that even a solitary instance is enough for detention, that the past activity coupled with the possible future like activity constitutes "engaging in" and that the meaning "engaged in" occurring in other statutes which are not kindred, cannot be imported and if interpreted otherwise, it will defeat the object of the Act. He relied on two decisions of the Supreme Court in Saraswathi Seshagiri v. State of Kerala, and in Mohd. Sulthan v. Jt. Secy. to Govt. of India, Finance Deptt. AIR 1990 SC 2222 : (1990 Cri LJ 2473).
12. In the decision in Prakash v. State of Karnataka (1980 Cri LJ 165) (Kant) (supra) the detention order was passed under Section 3(1)(iii) of the Act on the ground that smuggled goods like wrist watches, photographic film and cosmetics were kept for sale. The words "with a view to prevent him from keeping the smuggled goods" were used in the detention order and there was no reference to "engaging in". Relying on the dictionary meaning of the word 'engage' - 'hold fast (attention), employ busily", Justice Jagannadha Shetty, as he then was, speaking for the Bench, held that there is lot of difference between the activities of just 'keeping' and 'engage in keeping' and that if mere keeping smuggled goods is a ground for detention, any person who is having any foreign goods without the proof of its valid acquisition from an authorised source could be detained under clause (iii). In Shashikala v. Union of India, 1987 Cri LJ 1797, the Goa Bench of the Bombay High Court took a similar view following the decision of the Karnataka High Court. In both these decisions, this is obiter dicta since the detention order did not refer to 'engage in' but only said 'to prevent from keeping smuggled goods'. As it was not in conformity with the requirement of Section 3(1), it was sufficient for quashing the orders of detention. But the Karnataka High Court and Bombay High Court went further and interpreted the meaning of 'engaged in'. Even if this is not obiter dicta, with due respect, we do not agree with this view. The object of the Act is to prevent the detenu from committing an act similar to that done in the past. In other words, the past act or acts read with the future possibility of similar act being committed constitute 'engaged'. If frequency test is to be applied, it will be vague. One detaining authority may say that two acts are sufficient while another authority may held that three acts are necessary, and yet another authority may think that four acts are necessary.
13. The Supreme Court in Saraswathi Seshagiri v. State of Kerala (1982 Cri LJ 1251) (supra) interpreting Section 3(1) of the Act held that even a single solitary instance of attempt to illegally export Indian currency is sufficient to warrant an inference that detenu will repeat his activity in future also. In another decision in Debu Mahto v. State of West Bengal, referred to in Saraswathi Seshagiri v. State of Kerala (1982 Cri LJ 1251) (supra) the Supreme Court made the following observation (at Pp. 1252-53 of Cri LJ) :
"We must of course make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him, from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention."
14. In a recent case in M. Mohd. Sulthan v. Jt. Secy. to Govt. of India, Finance Deptt. (1990 Cri LJ 2473) (SC) (supra), the same view was reiterated. Though in all these cases, the Supreme Court has no occasion to interpret the word 'engaged in' occurring in Section 3(1)(iii) of the Act, these decisions clearly down the object of the Act and the expression 'engaged in' has to be interpreted in accordance with the scheme of the Act.
15. Another decision relied on by the learned counsel for the petitioner, Remington Rand of India v. Tahir Ali (1975 Cri LJ 1896) (SC) (supra), was a case under Industrial Disputes Act and the charge against the employee was that of misconduct for engaging himself in work similar in nature to that of Company in violation of Company's standing orders. The defence of the workman was that only a single act of sale of a second hand typewriter of another company and an undertaking to do its repairs for one year does not amount to misconduct. In that context, the Supreme Court, upholding the plea of the employee, held that single act of sale of typewriter cannot be said to establish that the employee was "engaged in" the business of selling typewriters. It is well settled by the Supreme Court in S. Mohan Lal v. R. Kondaiah, that the interpretation given to words in one Act cannot be given to the words in one Act cannot be given to the words occurring in another Act which is not kindred in nature. Hence, we reject this contention of the petitioner.
16. We may also point out that on the facts of the case, the contention raised that there should be at least more than two acts attributed to the detenu before he could be lawfully detained under Section 3(1)(iii) of the Act, is totally mis-conceived and contrary to the record. In the statement under section 108 of the Customs Act, the detenu had clearly admitted that he has earlier transported smuggled silver bar thrice from Bombay to Bangalore and twice to Bombay.
17. Point No. 3 :- This allegation is denied in the counter in para-11 where it is stated that the representation which was addressed to the Chief Secretary was considered by him and rejected on 2-11-92 and the copy of the order was also communicated to the detenu. In view of this, this point is rejected.
18. Point No. 4 :- Mr. Kumar, the learned counsel for the petitioner urged that in view of the inadequacy of availability of time, inference has to be drawn that the detaining authority has not applied his mind before passing the order of detention. Elaborating his point, the learned counsel for the petitioner contends that the entire process of decision making for detention must be at one time and not piece-meal, that the detaining authority must be satisfied himself about the need to detain and not act at the instance of sponsoring authority, that in the instant case, the sponsoring authority has prepared the grounds which were mechanically reproduced by the detaining authority and that the detaining authority could not have applied his mind in one day and passed the order of detention on 20-8-92 along with four other orders, as one of the pieces of information viz., the letter written by the Customs authorities to the detaining authority regarding receipt of telegram was received by the detaining authority on 19-8-92. He relied on the decision in Krishna Murari v. Union of India, . Modh. Abubukar v. Union of India, 1982 Cri LJ 53 (Bombay), Ashwin Kumar v. State of Maharashtra, 1987 Cri LJ 1798 (Bombay), State of Maharashtra v. Ramesh Kumar Shobharaj Jain, Mohammed Kutty v. Sri Tarun Ray, Jt. Secretary to Govt. of India, 1989 Mad LW (Cri) 36 and unreported judgment of Madras High Court in W.P. 53/89 dt. 18-7-89 (M. K. S. Abubacker v. Jt. Secretary, Govt. of India).
19. Mr. Ravindrarao, the learned counsel appearing for the learned Advocate General contended that there is no dispute about these propositions and that on the facts of the case, it cannot be said that the detaining authority has not applied his mind and distinguished the decision of the High Court of Madras in W.P. No. 53/89. He produced the records before us and we find that on 4-8-92, the Asst. Director of Revenue Intelligence sent letter to the respondent enclosing the entire case record. On 14-8-92 another letter was sent requesting the respondent to consider the detention of three other persons, viz., Jagadish Prasad Varma, Hiralal and Ramesh Bhai, whose complicity was revealed by the investigations conducted at Hyderabad and Bombay. On 17-8-92 the office of the respondent put up detailed note based on the record and on 20-8-92, the respondent signed both the grounds of detention as well as the order of detention taking into consideration the letter dt. 19-8-92 received from the Asstt. Director of Revenue Intelligence enclosing the copy of the telegram. Thus, all the documents were available at the time of passing the order of detention and sponsoring authority has only sent the case record to the respondent and has not prepared the ground of detention. The learned counsel for the petitioner has strenuously contended that as the respondent has received the last piece of information on 19-8-92, he could not have come to the conclusion in one day. We do not agree with this plea. As already seen, the entire record was before the detaining authority since 4-8-92 and the detaining authority after going through the detailed note put up by the office on 17-8-92 and also the communication received on 19-8-92, passed the order of detention on 20-8-92. Merely because the last piece of information was received on 19-8-92, it does not mean that the detaining authority has to go through the entire record once again from the beginning. In fact, the letter dt. 19-8-92 is not of much relevance and is a very short communication that the copy of the petition for anticipatory bail was not available. As already noticed, on whose behalf the anticipatory bail was moved, is not stated in the telegram. Even if it constitutes substantial information, it is not impossible for the detaining authority to go through the entire record running to about 60 pages excluding the Hindi and Gujarathi versions in one day. Another complaint made by the learned counsel for the petitioner is that the detaining authority could not have passed 5 orders in one day. It may be noticed that all these five orders are connected and passed against the petitioner, Rohidas, Hiralal, Ramesh Bhai and Jagadish Prasad and arise out of the same event viz., search of the jeep on 30-7-92 and recovery of silver bars. So it is not impossible for the detaining authority to pass five orders on the same day. In the decision of Madras High Court in W.P. 53/89, it was held that the detaining authority could not have gone through 137 pages in 2 days. In Umeshchandra Verma's case (unreported judgment of Supreme Court in Crl. Appeal No. 878/1985) referred to in the Madras decision in W.P. No. 53/89, the Court held that the detaining authority could not have gone through the record running to 234 pages in one day and accordingly held that there was not-application of mind. These decisions are distinguishable and it cannot be said that in the instant case the detaining authority could not have applied his mind. Thus, we see no force in the contention of the petitioner.
20. Accordingly, we dismiss the writ petition, but in the circumstances without costs.
21. Petition dismissed.