Karnataka High Court
Mohammed Kunhi vs State Of Karnataka And Others on 27 September, 1991
Equivalent citations: 1992CRILJ886, ILR1991KAR3875, 1991(3)KARLJ101
JUDGMENT Shivashankar Bhat, J.
1. The petitioner who is a detenu, detained by an order of the State Government under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA Act' for short), has filed this petition challenging the said order.
2. On 22-5-1990, the petitioner who was travelling in a KSRTC Bus, was checked at Belgaum by the officers of Central Excise Department and five primary gold biscuits valued at Rs. 2,02,100/- were seized, which were found hidden by being tied to his left leg. The Panchas, stated to be experienced in gold trade, opined the gold biscuits were of foreign origin; the said biscuits also had markings of foreign origin. Petitioner was not able to explain the licit nature of his acquiring those gold pellets. Petitioner's statement was recorded on the same day. Petitioner stated that he knew Hindi and Malayalam languages and had studied up to S.S.L.C. (but failed in the examination). He stated that one Prakash asked him to carry the gold from Bombay, for a commission of Rs. 500/- per pellet; he also stated that he had brought totalling five gold pellets on two earlier occasions and handed over the gold at Udupi, to the said Prakash; the present gold pellets were also purchased on behalf of Prakash, who had paid him Rs. 2 lakhs to purchase the gold and that he had to deliver them at Udupi to Prakash on 23-5-1990 at 8.00 a.m.
3. It is unnecessary to refer to other parts of the statement and the follow up action taken by the authorities. Though the order of detention was made on 30-7-1990, it was served only on 5-12-1990.
4. On 10-12-1990 petitioner made a request for the legal assistance of one Advocate Sri P. H. Mohammed; this was granted; however, petitioner did not avail of this. Instead he made another request on 24-12-1990 for permission to have the assistance of another advocate, this was also granted on 26-12-1990.
5. On 16-1-1991, a detailed representation was addressed by the petitioner to the Advisory Board. This representation was considered by the Detaining Authority also, and was rejected on 22-2-1991.
6. Three contentions were used by the learned counsel for the petitioner, in support of the writ petition :
(1) There was an inordinate delay of 35 days in considering the representation of the detenu, which vitiates the order of detention.
(2) In the Malayalam version of the detention order, the words "engaging in" are absent prior to the words, "keeping, concealing and transporting smuggled goods". This resulted in confusion in the mind of the detenu, because, the idea conveyed by the concluding part of the grounds in support of the detention order was quite different; thus the detenu was deprived of an opportunity to make an effective representation.
(3) The authority who seized the gold pellets had not entertained any 'reasonable belief' that the said gold pellets were smuggled goods and therefore authorities could not have invoked S. 123 of the Customs Act. This vitiated entirely, the making of the detention order.
7. RE : CONTENTION I : A representation was made by the detenu on 16-1-1991. But it was disposed of only on 22-2-1991. In the counter-affidavit of the Commissioner and Secretary to Government, Home Department, the delay was explained thus :
"The allegation that there is long delay in considering the representation dt. 16-1-1991, is denied as false and baseless. It is submitted that the representation dt. 16-1-1991, addressed to the Chairman, Advisory Board, was received from the Superintendent of Central Prison, Bangalore, on 17-1-1991. On 18-1-1991, the said representation was forwarded to the Advisory Board and also the Collector of Customs was requested to furnish the remarks on the said representation to the Government. 19th and 20th Jan. 1991 being holidays to the Central Government, the said representation was received in the office of the Collector of Customs on 22-1-1991. On 23-1-1991 the said representation was processed in the section and on 24-1-1991, the draft remarks were prepared and the same was put up to the Assistant Collector of Customs on 25-1-1991. 26th and 27th being general holidays, on 28-1-1991, the draft remarks were approved and on the very day, remarks were sent to the State Government. The State Government received the remarks on the very day, and the file was put up to the Under Secretary to Government, Home Department, on 29-1-1991.
On 30-1-1991 the Under Secretary has approved the D.O. letter addressed to the Chairman, Advisory Board and the said D.O. letter was despatched on 31-1-1991.
The Under Secretary was busy on 1st, 2nd and 3rd February, 1991 in arranging Advisory Board meeting to consider the case of the petitioner and also the entire records were placed before the Board on 4-2-1991 the day on which the case of the above detenu was heard by the Board and the Board has given the opinion with the said representation, on 13-2-1991 after considering the representation. The said report along with the representation were received back in the Section 15-2-1991.
On 16-2-1991, the Under Secretary put up a detailed note along with the representation to the Deputy Secretary to Government, Home Department. The Deputy Secretary, after scrutinising the file, put up the same to me on the very day. After perusing the file, I forwarded the same to the detaining authority on 16-2-1991. 17-2-1991 being a general holiday, on 18-2-1991, the file was received in the office of the detaining authority. The detaining authority, who was fully busy with regard to Legislature business and other important matters could peruse the file on 22-2-1991."
Further it was also urged that, the Detaining Authority should not have waited for the opinion of the Advisory Board to consider the representations, inasmuch as, the duty of the Detaining Authority to consider the representation was independent of the considerations of the Advisory Board.
8. In Writ Petn. No. 146 of 1989 (HC) decided on 12-2-1990 (Parbat Singh Rajput v. State of Karnataka, it was held that representation of the detenu was to the Competent Authority and, therefore, said authority should consider the representation immediately it is received and only in case the said authority thinks it necessary, comments of sponsoring authority should be called for. From this, it was argued by Mr. Kiran S. Javali, that, a mechanical forwarding of the representation to the sponsoring authority for comments before the representation is placed before the competent authority (Detaining Authority), was entirely illegal and the delay caused by this process should be held as fatal to the detention.
9. It is true that to same extent, some of the observations made in Parbat Singh's case, support the petitioner's contention in this regard. However, it is not possible for us to apply the said proposition, so stated by the learned counsel, having regard to the recent decisions of the Supreme Court, governing the particular fact situation. In Kamarunnisa v. Union of India, , the sequence of events were :-
(1) Representations were made by the detenu on 18-12-1989, but delivered to the Jail Authorities on 20-12-1989.
(2) Jail Authorities despatched them on 23rd December.
(3) On 28-12-1989 representations were received by the COFEPOSA unit.
(4) Representations were immediately despatched to the Sponsoring Authority for comments.
(5) On 9th Jan. 1990, Sponsoring Authority sent his comments to the COFEPOSA unit.
In view of several non-working days intervening, it was held that there was no delay in the time taken by Sponsoring Authority to send his comments. It was then contended that it was unnecessary to call for the comments of the Sponsoring Authority. This was also negatived. Supreme Court held (at para 7 of the report), "The contention that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could have been saved does not appeal to us because consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. After the COFEPOSA Unit received the comments of the sponsoring authority it dealt with the representations and rejected them on 16th January, 1990. The comments were despatched on 9th January, 1990 and were received by the COFEPOSA Unit on 11th January, 1990. The file was promptly submitted to the Finance Minister on the 12th, 13th and 14th being non-working days, he took the decision to reject the representations on 16th January, 1990. The file was received back in the COFEPOSA Unit on 17th January, 1990 and the Memo of rejection was despatched by post on 18th January, 1990. It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed. It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the representations of the detenus."
10. The authority who had to consider the representation was the Finance Minister, in the above case. The representations were not placed before him immediately, but were sent to the sponsoring authority for comments, and only thereafter, along with the said comments, representations of the detenu were placed before the detaining authority. Supreme Court upheld this procedure, on the ground that consulting the authority which initiated the proposal "can never be said to be unwarranted exercise."
11. Therefore, the broad proposition propounded by the learned counsel for the petitioner, that the representation of the detenu should be initially placed before the Detaining Authority, who alone could seek comments of any other authority, cannot be accepted. The practice of calling for the comments of the sponsoring authority on the representation of the detenu, before the representation is placed for the consideration of the Detaining Authority is a longstanding one and in none of the cases decided by the Supreme Court, such a practice has been deprecated or found as causing unwarranted delay in considering the representation of the detenu. In Frances Coralie Mullin v. W. C. Khambra, , representation of the detenu was dated 26th Dec. 1978 which was sent by the Home Department of the Delhi Administrator to the Customs Authorities for their remarks. The Administrator considered the representation only after receipt of the remarks of the customs authorities and rejected the representation on 15-1-1980. In the meanwhile on 4-1-1980, the Advisory Board had met and detenu was produced before the Advisory Board, and the latter gave its opinion on 10-1-1980. This opinion was placed before the Administrator on 19-1-1990 who confirmed the order of detention. As to the question whether Government should consider the representation before it was forwarded to the Advisory Board, the earlier view on this question was slackened; at page 852 (of AIR) : (at p. 551 of Cri LJ) (para 7) Court held :
"When it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board."
Ultimately the writ petition was dismissed. A few other observations made in the said decision were quoted by a larger Bench (of 5 Judges) in K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, and the decision in Frances Coralie Mullin's case, (1980 Cri LJ 548) (SC) was affirmed by this Constitutional Bench. The Court after quoting some of the observations in the said case, held :
"We agree with the observations in Frances Coralie Mullin case, . The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible."
From the above, following points are deducible :-
(i) The representation received from the detenu may be forwarded to the sponsoring authority for its remarks before it is considered by the Detaining Authority.
(ii) The time imperative for consideration of representation can never be absolute or obsessive.
(iii) In case there is no sufficient time to dispose of the representation by the Detaining Authority, before the same could be referred to the Advisory Board, the representation may be forwarded to the Advisory Board.
(iv) In case proceedings of the Advisory Board had already commenced, but not concluded, by the time representation is received, even then, the same shall be referred to the Advisory Board.
(v) In both the situations under points (iii) and (iv), it is proper for the Government to await the report of the Board.
Other points are not necessary to be stated here, for the purposes of the instant case.
12. Therefore, it is clear that calling for the remarks of the sponsoring authority, before the representation is taken up for consideration by the detaining authority, in no way affects the procedure adversely. Similarly, if the Advisory Board is about to meet or has already commenced its proceedings, the detaining authority shall not proceed to consider the representation, till the opinion of the Advisory Board is received.
13. In case the Advisory Board finds the detention order valid, still, Government may revoke the detention; however, in case the Advisory Board opines that there is no material for the detention, Government is bound by the said opinion to release the detenu. But in all these cases, irrespective of the Advisory Board's opinion, the Detaining Authority has to consider the representation independently of the Advisory Board's opinion, in case, the Advisory Board opines that there is sufficient material for the detention. In this connection, some earlier observations at page 367 (para 11) in the same decision highlights the obligatory nature of Government's duty to consider the representation of the detenu, independently of the opinion of the Advisory Board (also Smt. Gracy v. State of Kerala, ).
14. The learned counsel cited a few more decisions to urge that the delay in the instant case being 35 days, same is inexcusable. There cannot be a rigid formula to fix the reasonableness of the time within which the representation should be considered. In each case, the Detaining Authority has to satisfy the Court that in the circumstances of the particular case, delay occurred was inevitable and that the representation of the detenu was diligently processed and taken up for consideration. Since the liberty of an individual is involved, there can be no doubt that the authorities should give top most priority to the representation of the detenu and consider the same. Lukewarm treatment to the representation received would invalidate the detention.
14A. In the instant case, the explanation offered by the Detaining Authority establishes that there was no undue delay. The representation was promptly sent to the sponsoring authority for remarks; when remarks were received, it was time to arrange for the meeting of the Advisory Board. Papers are to be processed, copied and arranged with comments for the consideration of the Advisory Board. Again after the culmination of the proceedings of the Authority Board, relevant papers were placed before the Detaining Authority. In view of the legislative work, the Home Minister could take up the matter for consideration after a gap of two/three days. This cannot be stigmatised as 'delay' at all. Realities of the situation, in the background of the governmental functioning cannot be sidelined, while approaching the question of delay in such matters. It is not possible to hold that, in the circumstances of this case, the Government acted leisurely, or calously, ignoring the rights of the detenu.
15. RE : CONTENTION II :
The detention order in English clearly stated that the purpose of the order was to prevent the detenu from engaging in transporting, concealing and keeping smuggled goods. While translating this into Malayalam, the order omitted to contain the equivalent words of "engaging in", resulting in stating that the purpose of the detention was to prevent the detenu from transporting, concealing or keeping smuggled goods. However, the grounds in support of the detention both in English and Malayalam conveyed the correct idea, as in the English version of the words. The relevant part of the Malayalam version of the grounds (which is in the concluding part of the grounds, after narrating the sequence of events and the basis for taking the preventive action) clearly states that the object of the detention is to prevent the detenu from "engaging in" transporting, concealing and or keeping smuggled goods.
16. The petitioner contended that, the variation in the purpose for the detention, as stated in the Malayalam version of the order and the grounds created confusion in the minds of the detenu. The meaning conveyed by the words "to prevent" from transporting, etc. of smuggled goods is different from the meaning conveyed by the words "to prevent engaging transporting ..... of smuggled goods". The basis ingredient of S. 3(1)(iii) is absent in the former and therefore, apart from the confusion it has created, the detention order is also liable to be set aside, was the emphatic contention of the learned counsel.
17. In Shivaji Dondoji Padaki v. Government of India, ILR 1989 Kant 2361 : (1990 Cri LJ NOC 67), this Court had occasion to deal with a similar contention. In the said case, "the keeping of smuggled goods" attributed to the detenu in the English version was not attributed to him in the Kannada version. But the grounds in support of the detention order conveyed the full idea stated in the English version of the order. Hence it was held, at page 2371 :
"..... it is clear that the grounds of detention were 'communicated' to the detenu in the manner contemplated by Art. 22(5) of the Constitution, ....."
Thereafter, it was further observed :
"The ratio of the decision of the Supreme Court in Devji Vallabhai's case shows that when the grounds of detention are properly communicated to the detenu, in the language known to him, failure to furnish the detention order in the language known to the detenu will not render the detention illegal."
Then as to the relevant facts, it was held at page 2372 (page 22) :
"Facts and situations differ from cases to cases. Here is a detenu residing in Hubli, paying a monthly rent of Rs. 1,500/-. He is a man of substantial means; he owns a car which, he runs for hire engaging a driver. He has the facility of a telephone in his house; he is also building a new house; he is also employed in a concern, in which his wife has invested a large capital. He was indulging in the activities of disposing of smuggled gold, even on earlier occasions according to his statement recorded under S. 108 of the Customs Act. He may be ignorant of the English language and understood only the Kannada version of the order served on him, which conveyed the idea that, he was to be prevented from engaging in 'transporting', concealing and 'transporting' smuggled goods; word 'transporting' got repeated in the Kannada version of the order. However, para 10 of the Kannada version of grounds of detention, after narrating all the facts of the case, says that it was to prevent him from engaging in 'transporting, concealing and keeping' the smuggled goods. The narration of the facts, the summary of the materials referred by the Detaining Authority and the satisfaction arrived at by him at para 10 of the grounds conclusively show that there cannot be any confusion in the mind of the petitioner in respect of which he has to make the representation. The grounds are clear and specific and the requirement is to supply a proper translation of the grounds."
18. Confusion is a state of the mind. Whether the order and grounds furnished to the detenu are such that normally he would not be able to represent against the detention and thus there is a deprivation of the right guaranteed by Art. 22(5) of the Constitution is essentially a question of fact. The position of a detenu who is absolutely helpless, illiterate, poor and ignorant, cannot be compared with that of another detenu, who is worldly wise, reasonably capable of looking after himself and who had the advantage of legal assistance to prepare his representation against the detention order.
19. The instant case of the detenu belongs to the second category. He is educated up to S.S.L.C. Though unemployed, he has been indulging in the offending activity and has carried smuggled gold at least twice before. He had the benefit of a good legal assistance to prepare his representation. It cannot be said that he was unaware of the case he had to meet. The ratio of the decision in Bhawarlal Jain's case, ILR 1991 Kant 454 (para 33) equally governs the situation of this detenu also. In these circumstances, we cannot uphold the contention urged on behalf of the detenu.
20. RE : CONTENTION III :
It was contended that the officer who seized the gold pellets did not seize them under a reasonable belief that they were smuggled goods and, therefore, burden of proving licit nature of the possession never shifted to the detenu; the grounds in support of the detention order invoked S. 123 of the Customs Act while casting the burden on the detenu to establish that gold pellets were not smuggled goods; therefore, the opinion arrived at by the detaining authority that it was necessary to prevent the detenu from engaging in any of the activities attributed to him stood vitiated.
21. Above contention is based entirely due to specific words 'reasonable belief' being absent in the mahazar; these exact words were not repeated while expressing the opinion of the officer who seized the goods, that the gold pellets were smuggled goods. But, it is necessary to read the entire mahazar and examine as to what idea it conveys. The panchas whose expertise to identify the nature of the gold pellets is not under challenge; they clearly opined that gold pellets in question were of foreign origin. The officer who seized the goods stated in the mahazar that the detenu had no acceptable explanation as to the legality of his possession of those gold pellets; the purity of the gold and the mankings in the pellets as to their source, are the other factors stated in the mahazar. After stating all these facts, the officer expressed his opinion that those gold pellets were liable to be seized. The entire mahazar conveys no other meaning except the only meaning that the officer entertained a reasonable belief that those were smuggled gold pellets and hence liable to be seized. There is no special charm in the term "reasonable belief"; it conveys that a particular process must have undergone in the mind, leading to a particular conclusion by the officer, before seizing the goods in question; what is essential is that, the belief of the officer that goods in question were smuggled goods was arrived should have been formed reasonably and if it is established that this subjective belief of the officer had reasonable hypothesis behind it, the existence of the reasonableness of the belief could be reasonably accepted. The belief does not become reasonable by a mere repetition of the words 'reasonable belief' in the mahazar, though, it would be most appropriate that the officer while seizing the goods should say so in clear terms. We are satisfied that the officer, in the instant case, reasonably believed that gold pellets in question were smuggled goods and formation of this belief could be easily and clearly made out from the various facts narrated in the mahazar.
22. One of the contentions urged by the learned counsel pertained to the alleged lack of adequate opportunity to make representation, because, the detenu was not given any legal assistance. According to the learned counsel, the copies of all the relevant documents, grounds and the order are to be furnished to the detenu within the prescribed period, failing which the service of order of detention gets vitiated; or at any rate, the Government should have provided that detenu with the legal assistance immediately after the service of the detention order.
23. Facts reveal that there is no scope to advance this contention. Request for the legal assistance made on 10-12-90 was promptly granted on 11-12-90. Detenu made a fresh request to change the counsel, on 24-12-90; this was also granted on 26-12-90. On 16-1-91, a detailed representation in English, was sent by the detenu. In the circumstances, question of Government voluntarily providing a legal assistance to the detenu did not arise. The learned counsel for the petitioner relied on the decision of this Court in Mohammed Hanif v. State of Karnataka, ILR 1991 Kant 2646. At page 2658 (para 10) it was held :
"In a case where the grounds of detention including the documents on the basis of which the detention order is made, are not supplied in a language which the detenu is able to read and understand, which constitutes serious defect and furnishes a ground for setting aside an order of detention, giving of legal assistance to the detenu with or without his asking for it, forthwith and within the time prescribed for communication of the grounds of detention, to assist him to make a representation, with whose assistance the detenu could have/had in fact, made an appropriate representation, cures the defect of not furnishing the documents in the language known to the detenu."
The detenu in the instant case was furnished with the translated copies of the grounds and other documents in the language known to him. Therefore, above principle is entirely inapplicable. This apart, no prejudice was caused to the detenu by the papers supplied to him, as he was able to send a detailed representation with the aid of his counsel.
24. In Bhawarlal Jain v. Mahendra Prasad, ILR 1991 Kant 454, a Bench of this Court observed at page 478 :
"In the instant case since a detailed representation was made with the assistance of the counsel, we hold that no prejudice is caused to the detenu by non-consideration of representation seeking Hindi version of documents."
25. In these circumstances, we are unable to accept any of the contentions argued before us.
26. Consequently, the Writ Petition is dismissed. Rule discharged.
27. Petition dismissed.