Andhra HC (Pre-Telangana)
Rumana Begum vs Government Of Andhra Pradesh And Anr. on 6 March, 1992
Equivalent citations: 1992(2)ALT74, 1992CRILJ3512
JUDGMENT Sivaraman Nair, J.
1. The 1st respondent passed an order dt. 30-8-1991 directing that Shri Mohammad Ishaq, S/o Hasan Mohammad, should be detained under section 3(1)(iv) of Conservation of Foreign Exchange and Prevention of Smuggling activities Act, 1974, for short the 'COFEPOSA Act'. Simultaneously, the grounds for detention were communicated to the detenu in the letter of the 1st respondent of the same date. Petitioner representated his case before the State Advisory Board, which ratified the order of detention. The wife of the petitioner has filed this petition for the issue of a writ of Habeas Corpus and to call for the records of the 1st respondent, leading to the detention order and quash the same, so as to set the detenu at liberty.
2. The facts leading to the petition are the following : Officers of Directorate of Revenue Intelligence, Madras and the Customs & Central Excise Officers of Vijayawada intercepted Khaja Nazmuddin alias Nizam. On being questioned, he disclosed his name and admitted that he was coming from Kharagpur. He denied that he was in possession of any foreign gold. Metal-detector test disclosed a signal of having concealed metal near the anus. At that stage he admitted having concealed eight foreign marked gold bars in his rectum and volunteered to eject them. On further search of his body, 4 baloon packets containing two gold bars each with foreign markings were found out. Those gold bars were found weighing 933.20 grams of 24 Caret purity, worth Rs. 3,95,676.80 ps. Since Sri Nazmuddin could not produce any valid document supporting his possession of the gold, the officers seized the gold bars with packing material and the polythene hand bag and the clothes, under cover the Mahazar. On being summoned under S. 108 of the Customs Act, by notice dt. 22-8-1991, Sri Nazmuddin stated that one year back he came into contact with one Mohd. Ishaq, through a friend, with telephone No. 526089 and that he was offered employment for carrying foreign currency to Calcutta and bringing foreign made gold bars from there for a remuneration of Rs. 500/- per trip besides expenses. Nazmuddin also disclosed that he was directed to contact Sri Hanuman at Calcutta, and that he had brought foreign gold in return. Having reached Hanuman, Sri Nazmuddin was to be identified by the Yellow Polythene bag in his hand with "New Meena Bazar", printed on both sides, that the representative of the said Hanuman trained him in keeping the gold bars in rectum in his first trip to Calcutta and that he had already transported foreign currency and foreign gold thrice in this manner at the instance of Mr. Ishaq and received a remuneration of Rs. 1500/- from him. He stated further that he left Hyderabad for Vijayawada by Bus on 18-8-1991 with 13000 American Dollars and reached Calcutta on 20-8-1991 by train from Vijayawada, that Sri Nazmuddin received 8 foreign marked gold bars in 4 packets of 2 bars each at Calcutta from the representative of Sri Hanuman and returned to Vijayawada via Kharagpur by Madras Mail on 21-8-1991 and the officers intercepted him at Vijayawada Railway Station and seized the 8 gold bars in question. He also gave the descriptive particulars of the detenu and stated that he had constructed a new house near race course, Malakpet, Hyderabad with telephone No. 552669. The customs officers arrested Sri Nazmuddin on 22-8-1991, produced him in the court of the 4th Metropolitan Magistrate, Vijayawada on 23-8-91. The Court remanded him to judicial custody till 6-9-1991. Though the officers of Central Excise, Hyderabad, searched the residential premises of Sri Khaja Nazmuddin at Hyderabad on 24-8-1991 under a search warrant, nothing incriminating came to light. The premises of the detenu was also searched under a Search Warrant on 27-8-1991. Though the premises at dr. No. 16-1-270/6/5, Malakpet was searched, nothing incriminating was found; but telephone No. 552669 was found installed in the ground floor as stated by Sri Nazmuddin. Further enquiries revealed that the detenu was at Bombay and the officers intercepted him while he was about to leave Hotel Sealord. Summons were served on him on 27-8-91 under S. 108 of Customs Act for appearance before the Assistant Director, Directorate of Revenue Intelligence, Bombay. The detenu gave a statement on 27-8-1991 admitting that he had employed Sri Nazmuddin for bringing foreign marked gold from Calcutta though one Sri Hanuman who promised to supply foreign gold at a lower cost and that the detenu sent Sri Nazmuddin to Calcutta with money on 18-8-1991 to purchase foreign gold and to bring it back as per the instructions of the detenu. The detenu also admitted that he had informed Sri Hanuman over telephone No. 390765 of Calcutta about the arrival of Sri Nazmuddin and that the detenu received information over phone No. 552669 from Sri Hanuman on 20-8-1991 that eight foreign gold bars were delivered to Sri Nazmuddin and that he was to reach Hyderabad on 22-8-1991. He also admitted that he came to know about the seizure of gold on 23-8-1991 and that the detenu reached Bombay on 25-8-1991 by bus and on 27-8-1991 the officer of Directorate of Revenue Intelligence, Bombay arrested him at 9-00 p.m. and produced him before the Addl. Chief Metropolitan Magistrate Bombay on 28-8-91 under a remand report. The Magistrate initially remanded the detenu to judicial custody till 10-9-1991. On 28-8-1991 the detenu retracted from his confessional statement and requested to be heard on the question of grant of bail. Responding to this, the Magistrate advanced the period of remand to 2-9-91, while rejecting the request for grant of bail. In his letter retracting from his confessional statement, the detenu stated that he had nothing to do with Sri Khaja Nazmuddin and that his statement was not binding on the detenu. The Director of Revenue Intelligence moved an application 28-8-91 for transfer of the case file to the Special Judge for Economic Offences, Hyderabad, and obtained orders to produce the accused/detenu before the Special Judge for Economic Offences on or before 2-9-1991. It was on consideration of this material that the 1st respondent proposed to detain the petitioner for the reason that the detenu being at large on bail in the near future, would be detrimental to national economy.
3. Petitioner submits that her husband has nothing to do with the alleged operations of Nazmuddin. She submits that the statement of Nazmuddin in Urdu referred to one Ashfaq as the king-pin of the smuggling operations and that it was not her husband 'Ishaq'. She submits further that the Urdu statement of Nazmuddin does not contain age and other particulars of the detenu, whereas in English translation, the detaining authority showed his age as 33 years. She therefore asserts that there was little to identify the detenu as the person named by Sri Nazmuddin. She asserts that the Telephone number set up in the house does not stand in the name of Ishaq. The detaining authority, not having adverted to these important features should be held not to have applied its mind to relevant considerations or any reasonable probative material, to come to the conclusion that 'Ashfaq' mentioned by Nazmuddin was the detenu. Petitioner submits further that the 1st respondent should not have placed any reliance on the statement extracted from him under duress and it should have been found that it was a case of mistaken identity. Yet another submission of the petitioner is that the detaining authority did not properly advert to the fact that the detenu had already been arrested on 27-8-91 and was in judicial custody. It was also stated that there was no need to detain the petitioner's husband under the COFEPOSA Act, because he was already incarcerated for involvement in offence under the Custom Act. On these grounds, the petitioner urges that the detention of her husband is illegal and unconstitutional, as violative of Art. 22(5) of the Constitution of India, since the detaining authority had not applied its mind to the relevant considerations in passing the order. Petitioner also submits that the detention order, which was passed under S. 3(1)(iv) of the COFEPOSA Act was unsustainable, since the power thereunder could not be used unless the activities of engaging in transporting of prohibited material under the Act is proved. Petitioner submits further that her husband knows only Urdu and the grounds of detention translated into Urdu for communication to the detenu contained errors in material particulars and the error in the grounds of detention communicated to him result in violation of the obligation to communicate grounds for detention as contemplated in Art. 22(5) of the Constitution of India. Petitioner also submits that the detaining authority could not have adverted to the documents which were filed into Court on 28-8-91 for formulating the grounds supporting the order which was issued on 30-8-91. It is therefore asserted that the detaining authority passed the order in a mechanical manner without applying its mind. It is urged that instead of applying its mind to relevant considerations, the detaining authority only followed certain wrong proposals placed before him. It is further submitted that the condition attached to the Government order dt. 7-9-91 while allowing him to be interviewed by his Advocate Sri D. Pandurangam only in the presence and within the hearing distance of the Deputy Director, the Director of Revenue Intelligence, Madras, in effect, denied the opportunity which the detenu has under Arts. 21 and 22 of the Constitution of India and refusal of such opportunity itself vitiates his detention.
4. Respondent has filed a detailed counter affidavit controverting the averments contained in the Writ Petition. He has asserted that he had sufficient material sustaining the grounds for the detention of the petitioner's husband and the order passed on 30-8-91. He asserted that the statement of Nazmuddin contained sufficient indications for identifying the petitioner as the Principal Operator in smuggling activities. He submits that in his statement, the detenu clearly admitted that he had studied up to matriculation and could read and understand English but could not write fluently. He signed the statement with an endorsement that he had read the statement himself which was recorded in English. It was therefore stated that the difference if any between the English and Urdu versions of the grounds contained in the letter dt. 30-8-91 was not very material. Attempt is made to explain away the difference in the name of the detenu as 'Ashfaq' when writing in Urdu and 'Ishaq' when writing in English. The telephone No. 552669 which was installed in the new house of the detenu at Malakpet was sufficient identification of the person notwithstanding the difference in the spelling of his name in urdu and English. Respondent asserts that the Statement of Nazmuddin was recorded in Urdu and English simultaneously by two different persons and the difference in spelling might have occurred due to difficulty in following the pronunciation of the proper noun. Reference is made to the Mahazar drawn up at the Malakpet residence of the detenu, which was witnessed by the petitioner showing the telephone number in that house as 552669. It is therefore asserted that there was no mistake in the identity of the person who was described as the prime motivator in the smuggling activities according to the statement of Mr. Nazmuddin. Respondent again asserts that the fact that the petitioner was arrested on 27-8-91, produced before the Magistrate at Bombay on 28-8-91 and that he was in judicial custody until 2-9-91 were all adverted to by him while passing the order. The Likelihood of the detenu being enlarged on bail was adverted to and it was because of such possibility that the 1st respondent had to decide upon his detention under the COFEPOSA Act. The 1st respondent also asserted that the very fact that the detenu had sent Sri Nazmuddin to collect and obtain Foreign gold with 13000 American Dollars sufficiently justify the finding that he was dealing with smuggled goods. He therefore asserts there he was fully justified in coming to the conclusion that the detenu was fit person to be detained under S. 3(1)(iv) of the COFEPOSA Act. Respondent also asserts that the impugned order was passed in full compliance with the requirements of Art. 22(5) of the Constitution of India and the provisions of the COFEPOSA Act.
5. The Advocate-General has produced the files leading to the impugned order. It is admitted that the detenu had studied up to the tenth standard. Even though it was asserted that he had studied only in Urdu, he had signed his statement before officers of the Directorate of Revenue Intelligence, after verifying in his own handwriting that he read and understood the statement which was recorded in English. He also signed in English. It is therefore evident that there would have been no difficulty for the detenu to understand the order and the grounds which were recorded in English. Even assuming that he knows only Urdu and not English, the mistakes in translation do not appear to us to be so material as to mislead the detenu about the contents of the order or the grounds for detention. Petitioner invited our attention to the decision of the Bombay High Court in Pradeepkumar Vanravandas Gosalia v. State of Maharashtra, 1986 Cri LJ 450, and Smt. Shashikala Krishnarao Rane v. Union of India, 1987 Cri LJ 1787. Pradeepkumar Vanravandas Gosalia was a case in which the Gujarati translation of the order and grounds in English was found to be a distorted version, capable of creating confusion in the mind of detenu as to what case he had to meet. The court held that "whenever there are two different versions in two different languages and if the translation shows a casual and cavalier attitude on the part of the authority, High Court has always struck down the orders of detention".
6. Smt. Shashikala Krishnarao Rane supra was a case where the detaining authority furnished translations to the detenu who knew English. The Court pointed out that the translations did not convey a faithful meaning of the original grounds of the Declaration. The Court held that substantial divergence in the meaning from the original entitled the detenu to have the order of detention set aside.
6A. In view of the contentions of parties and on an examination of the two versions in English and Urdu as communicated, we requested counsel on both sides to give us as faithful a translation of the order and grounds in Urdu into English. Both have furnished such translations. We find that there is no such substantial variance justifying the submission that there was such wide divergence as to justify and likelihood of the detenu being confused because of the difference in the order and or the grounds of detention.
7. The Advocate General submitted that the satisfaction of the authority was expressed in the English version of which the petitioner had at least working knowledge. If the English version did contain an order conforming to the requirements of the relevant statutory provision, the detenu cannot take any objection to the satisfaction expressed in the order. The only question which is relevant is whether the Urdu version was dissimilar and conveyed an altogether different meaning to the detenu. In the absence of such divergence, the detenu cannot succeed on this point.
8. In A. Alangarasamy v. State of Tamil Nadu, , the Supreme Court had to consider the same question as to whether the difference in the original and translated versions of the order and grounds for detention really caused prejudice to the detenu. The Court observed (at page 1888).
"The alleged difference between the two versions is not consequential. The order of detention and grounds accompanied clearly spelt out why the detenu was being detained. We are not persuaded to hold that the two versions are so different as to cause any prejudice to the detenu".
9. In Pushpadevi Jatia v. M. L. Wadhavan, the Court considered alleged mistakes in the grounds of detention. The Supreme Court affirmed the finding of the High Court that the alleged mistakes or infirmities pointed out by the detenu were not so material as to vitiate the order of detention for the reason that sufficiency of the grounds is for the detaining authority and not for the Court. These decisions make it unmistakably clear that mistakes in translation or misstatements of facts of serious or material nature alone can vitiate the order of detention.
10. Petitioner submits that the grounds for detention are vague in so far as the same did not specify the particular provision under S. 3(1) of the COFEPOSA Act, which according to the detaining authority, was applicable to the detenu. He submits that the allegation that he detenu had dealt with contraband gold in a manner seriously prejudicial to national economy does not fit into any of the sub-clauses in S. 3(1), each of which is a specific and exclusive ground justifying orders detaining certain persons. Dealing in contraband gold is not the activity of "smuggling goods" (clause (i), or "abetting the smuggling of goods" (clause (ii), or "engaging in transporting or concealing or keeping smuggled goods" (iii), or "dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods" (iv), or "harbouring persons engaged in smuggling goods or in abetting the smuggling of goods" (v), He submits further that "dealing with smuggled goods" to fall under clause (iv) should be 'otherwise than by engaging in transporting or concealing or keeping smuggled goods', and unless the qualifying words as mentioned above are specified in the grounds and in the order, the order of detention would be vague and equivocal. In that event, the order has to be set aside, according to the petitioner. Counsel referred us to Kadar Ismail Vora v. State of Gujarath, 1987 (2) Gujarath Law Reporter, 1007 in support of this submission.
11. Counsel referred us to a number of decisions in this regard. We do not think it necessary to refer to all of them. Some of these decisions are apparently contradictory to the other. That was obviously because, the facts dealt with in each case were different. It is often said that precedents are principles of law and cannot be applied to facts of all cases except in extraordinary situations. It is well to remember that Precedents are not immutable dogma. Courts may evolve principles which are applicable to the facts involved in each case. Those principles may apply with marginal or substantial variations to other fact situations of a similar nature. That is why the same principle of law may apply differently in different cases involving different sets of facts. What we glean from the pronouncements of the Supreme Court which are binding in nature is that except in cases where the grounds falling under Clauses (i) to (v) of S. 3(1) of the Act are mutually exclusive, reference to any particular clause of S. 3(1) may satisfy the requirements of satisfaction of the detaining authority. In cases where grounds falling under one of the clauses overlap cover any other, there shall be more specification. For instance clauses (i) and (ii) may perhaps overlap. If the satisfaction of the detaining authority is referable to clause (i) or (ii) a more detailed specification of such grounds may be necessary. In a case where the order specified satisfaction under clause (i) or (ii) but the grounds mentioned are referable to clauses (iii) or (iv), the satisfaction may be vitiated and the resulting order may be void. But in the present case, specific reference is made to clause 3(i) and (iv); and the grounds specified that the detaining authority was satisfied that the detenu has been 'dealing in contraband gold in a manner prejudicial to the national economy'. Dealing with contraband gold with reference to clause (iv) necessarily implies dealing with smuggled goods "otherwise than by engaging in transporting or concealing or keeping smuggled goods". The absence of further recital that such dealing was "otherwise than by engaging in transporting or concealing or keeping smuggled goods" cannot therefore be considered as fatal to the validity of the order of detention in the present case. We are not persuaded by the submission that dealing in contraband gold falls both under clauses (iii) and (iv) and each being mutually exclusive, there is likelihood of confusion as the grounds are equivocal. Clause (iii) specifies 'engaging in transporting or concealing or keeping smuggled goods'. None of these activities will technically fall within the term specified in clause (iv). It may also be seen that the specific allegation against the detenu was that he was dealing in foreign exchange (U.S. Dollars) and contraband gold (smuggled gold). He was not charged with engaging in transporting or concealing or keeping smuggled goods. Transportation or concealment or retention of smuggled goods has specific meaning assigned to each and may apply to carriers like Nazmuddin. The specific and unmistakable ground alleged against the petitioner was that he dealt with contraband or smuggled gold which fell under clause (iv) and not under clause (iii) of the COFEPOSA Act. Even otherwise mention of clause (iv) necessarily means dealing with smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods".
We are therefore satisfied that the grounds are specific clear and unequivocal. For a reasonably minded person, there ought to be no confusion and no equivocation. The detenu could have made his representations to the specific and clear grounds supporting the order, which was passed under S. 3(1)(iv) of the COFEPOSA Act.
12. We need only refer to the decision of a constitution Bench in Smt. Godavari Shamrao Parulekar v. State of Maharashtra, . The Court held (at page 227) :
"Reading the order as a whole, in substance it does say that it is necessary to detain the person with a view to preventing him from acting in the manner prejudicial to the defence of India, etc. In R. 30 the words are "so to do" while in the order they are "to make the following order". The two expressions in our opinion mean the same thing and we cannot accept the argument that the satisfaction necessary under R. 30 of the Rules was not arrived at in these cases by the authority making the order.
We have not been referred to any later decision of a Constitution Bench differing from the above principle of law. We have therefore to see the substance of the matter the grounds furnished in support of the order of detention fall within one or the other of the five clauses mentioned in S. 3(1) of the Act and the order refers to an entirely different clause. If it does, the order is bad and has to be quashed. So also when the facts stated in the grounds do not fall within any of the clauses of S. 3(1) of the Act much less the clauses mentioned in the order. We have to ensure that the detenu whose liberty is to be curtailed shall be put on notice of clear and unmistakable grounds of detention with reference to which the detaining authority reaches its satisfaction. To insist on further compliance with any more of the details excepting to the above basic requirement may be desirable but that may be to ask for too much. We shall also remember that it is for the detaining authority to satisfy himself on the material before him as to whether detention is necessary or not and not ordinarily for the Courts to substitute such satisfaction. In other words a more detailed reassessment and review of materials by the Court is not called for.
13. Counsel for the petitioner submitted that at the time when the order of detention was issued, the detenu was already in custody, having been arrested on 26-8-1991. According to him, there was no compelling need to detain him; and hence the order of detention cannot be sustained. He also submitted that on the facts of the case, there was no occasion for the detaining authority due to shortness of time, to apply its mind to the facts involved in the case and to arrive at satisfaction justifying detention. It is his submission that the detaining authority proceeded in a mechanical manner in issuing the impugned order. Reference was made to N. Meera Rani v. Govt. of Tamil Nadu, , Abdul Majeed v. A. K. Batabyal, 1990 Cri LJ 766, Kamarunnissa v. Union of India, in support of this submission. Reference was also made to a judgment of the Division Bench of this Court in W.P. Nos. 10199 and 10209/91, dt. 13-12-1991. The principle emanating from these decisions is that the detaining authority must be shown to have been aware of the fact that the detenu was in custody. If the detaining authority was aware and had applied its mind to that fact, it should naturally be obligatory on its part to indicate special and compelling reasons why the detenu was to be detained under an order of preventive detention. It is not as if in all cases where a detenu is already in custody as an under-trial or otherwise, the detaining authority has no jurisdiction to act under the COFEPOSA Act.
14. We shall go back to the decision of the constitution bench in Rameshwar Shah v. District Magistrate, Burdwan, in which the same question had come up for consideration. The Court held at pages 261 & 262 :
"On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedsent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case."
In N. Meera Rani supra a bench of three Judges of the Supreme Court referred to the above decision and held that -
"all subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Juges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw's case (supra)".
The Court also referred to a number of decisions rendered in the meantime and reiterated the principle that -
"subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position."
In Kamarunnisa supra the Court held -
"in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in his behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail, and if bail is granted notwithstanding such opposition, to question it before a higher Court."
What is necessary is that the power of Preventive detention shall not be used to circumvent or by-pass an order granting bail to the detenu. The authority must, on the other hand, satisfy himself on the basis of cogent material that there is a real likelihood of the detenu being released on bail and indulging in prejudicial activity if he is not detained.
15. N. Meera Rani supra was an extreme case where there was no indication in the order of the detenu being released on bail, since the detenu was charged with an offence punishable under Section 397, I.P.C. which was not bailable. On these grounds the Court held that unless it was shown that the detaining authority was satisfied of the likelihood of the detenu who was already in custody being released on bail and if so released indulging in prejudicial activities, the order of detention was liable to be quashed.
16. Similar question came in for consideration in Abdul Sathar Ibrahim Manik v. Union of India, . In that case, the detenu was already in jail. The detaining authority noted that fact and also the likelihood of his being released and indulging in prejudicial activities. After referring to a number of precedents, the Court observed at page 3296 :
"In the counter-affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention. Therefore, there was every likelihood of his moving for bail and getting released on bail. These materials show that the detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to indulge himself in the smuggling activities. It, therefore, cannot be said that there were no compelling reasons justifying the detention despite the fact that the detenu is already in custody."
To the same effect is the decision in Sanjeev Kumar Aggarwal v. Union of India, . The Court held that the detaining authority was satisfied not only of the fact that the detenu was likely to be released on bail, but also that on being released he was likely to indulge in the same activities; the satisfaction being thus comprehensive in respect of the relevant considerations, the Court held that the order of detention was full justified.
17. Counsel for the petitioner was right in referring to the decision in Dharmendra Suganchand Chelawat v. Union of India, in which the Supreme Court held that in the absence of material justifying satisfaction of a reasonable prospect of the detenu being released from custody at the time when the order of preventive detention was made, that order would be liable to be set aside. Each case has to be decided on its own facts. In the present case the principle which has to apply is the one laid down in Rameshwar Shaw (10) by the constitution bench and which was succinctly summarised in Meera Rani (7) by a bench consisting of three Judges. We are satisfied, on a reading of the order of detention and the grounds that the detaining authority was fully aware of the custody of the detenu, the the possibility of his release on bail and also that he did advert to the need to detain him so as to prevent him from indulging in prejudicial activities if he was released on bail. On the basis of the decision of the Supreme Court which we have referred to above we do not propose to refer to a multitude of others - we hold that the order of the detaining authority cannot be faulted on the ground of non-application of mind to the fact of his being in custody at that time.
18. Counsel submitted that the detaining authority could not have applied its mind to the need for detention in the facts of the present case. The customs officials took the detenu into custody on 27-8-1991 and recorded a statement from the under section 108 of Customs Act. On the next day 28-8-91 he was produced before the Addl. Chief Metropolitan Magistrate. The detenu filed a letter retrancting from the statement of the previous day and also filed an application for enlargement on bail. The Magistrate remanded him to judicial custody till 2-9-91. Since the officers insisted that it was necessary to produce him before the special Court for Economic offences, Hyderabad, the Court granted permission to transfer the detenu to Hyderabad. The detaining authority passed orders on 30-8-91. Petitioner submits that these facts indicate that the officers adopted a subterfuge and clamped the order of detention on 30-8-1991, without detailed consideration of the grounds for detention since the documents which were filed in the Magistrate Court in Bombay on 28-8-91 would not have reached Hyderabad sufficiently in time to enable the detaining authority to pass the orders on 30-8-91 after adverting to the relevant facts and documents.
19. These assertions are controverted in the counter affidavit. On a reading of the order and the grounds of detention, we are of the opinion that the detaining authority lost no time in drafting and serving the order and the grounds on the detenu before he was to be produced before the Special Court for Economic Offences, Hyderabad on 2-9-91. The mere fact that the detaining authority proceeded with more than ordinary despatch in passing and serving the order cannot justify inference that it had no time to advert to the relevant grounds and therefore the order was liable to be set aside. What we have to consider is whether the order and the grounds do disclose that the detaining authority did or did not consider the relevant factors and the requirements of the law including Article 22 of the Constitution of India, when he passed the order of detention. We have not been persuaded nor are we entitled to venture a guess that the detaining authority would not have had time to advert to the requirements of a valid detention between 28th and 30th of August, 1991.
20. Counsel for the petitioner submitted that the request of the detenu dt. 6-9-1991 seeking interview with his Advocate for preparing his representation in defence was permitted only subject to the condition that such interview should take place within the hearing of the Deputy Director, Directorate of Revenue Intelligence, Madras or any officer authorised by him. Counsel submits that such condition is illegal and unconstitutional as it amounts to unfair procedure offending Article 22 of the Constitution of India. He also submits that the grant of interview only for one time that too for a period of one hour on a particular day is also wrong, since such restrictions are unconstitutional. Even though the Government sanctioned interview by its letter dt. 7-9-91 it virtually amounted to denial of opportunity in view of the restriction and conditions. Counsel for the petitioner wrote to the authorities on 13-9-91 that it would be impossible for him to interview his client with such conditions and restrictions.
21. Advocate General submitted that the request of the petitioner dt. 6-9-91 for an interview with his advocate Sri Pandurangam was immediately sanctioned in Government Memo dt. 7-9-91, with a request to the Suprerintendent Central Prison, Hyderabad, to take immediate action to intimate the date of interview in advance to the party concerned as also to the Deputy Director, Directorate of Revenue Intelligence, Madras. The Superintendent of Central Prison seems to have sent a letter dt. 9-9-91 pursuant to the above letter informing the petitioner's counsel of the date of interview. In his letter dated 13th September, 1991, petitioner's counsel informed the Superintendent, Central Prison, Hyderabad, that in view of the conditions and restrictions, the detenu may not be in a position to give full facts to him even for preparation of the representation and for filing a Writ Petition against the detention order. He therefore informed the Superintendent that he could not take the interview with the detenu. Counsel for the petitioner invited our attention to the decisions in Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746 : 1981 Cri LJ 306; A. K. Roy v. Union of India, ; Harbans Lal v. M. L. Wadhawan, .
22. Francis Goralie Mullin, (14) is to the effect that at Page 314 :-
"The right of detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal Proceeding but also for securing release from preventive detention or filing a writ Petition or prosecuting and claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law."
In A. M. Roy (15) the Supreme Court proceeded on the basis that the safeguards embodied under Article 22(4) of the Constitution were to beread into Section 8(b) of the COFEPOSA Act and therefore the right of the detenu for representation or interview with his lawyer, friends, relatives and the assistance in his defence or appearance before the Advisory Board, or for production of oral evidence in rebuttal are all constitutional safeguards. The Court also held that denial of such safeguards amounted to violation of Article 22 of the Constitution of India and vitiated the entire proceedings relating to his detention.
23. Here in the present case, the detaining authority acted promptly in responding to the request in the letter dt. 6-9-91 of the petitioner by allowing him to be interviewed by his advocate in accordance with COFEPOSA (Regulation of place and conditional) Order, 1974. Interview the permitted subject to the conditions contained in the above order. When the Superintendent of the Central Prison fixed the date and place for interview pursuant to the Government letter dt. 7-9-91, it was not the petitioner but his lawyer who responded by stating that the conditions and restrictions subject to which the interview was to be conducted were illegal and unconstitutional and therefore, counsel would not interview the detenu. Had the petitioner required counsel to address the Government in this regard pointing out the alleged illegality in the conditions and restrictions, it would have been possible to rectify the same. Counsel for the petitioner who is expected to know the law, did not inform the Government but only replied to the Superintendent, Central Jail, on 13-9-91 that he would not interview the detenu. In view of the above facts, we see considerable force in the submission made by the Advocate-General that the intention of the detenu was far from obtaining an interview with his advocate to prepare his representation or even to file a Writ Petition, but to create a situation where he could plead that he was denied as effective opportunity.
24. It is relevant in this context to see whether the petitioner was disabled or prejudiced in his defence by reason of the fact that the alleged illegality in the conditions or restrictions imposed in the interview of the detenu with his advocate. It is evident from the record which the Advocate General has produced that the petitioner had submitted a representation before the Advisory Board. The detenu and his wife, the petitioner, appeared before the Board. We have no doubt that the petitioner had the best legal advice as is evident from the present Writ Petition. We are therefore of the opinion that the illegality if any in the condition or restrictions subject to which the petitioner was required to interview his advocate had not caused him any prejudice at all.
25. Counsel for the petitioner submitted that the question of prejudice may not be material in case if the detention order or the proceeding relating to it was shown to suffer from any illegality violative of the rights guaranteed under Articles 21 and 22 of the Constitution of India.
26. In dealing with such a contention that the grounds of detention served on the detenu under section 3(1) of the COFEPOSA Act contained different versions in Tamil and English and that resulted in an illegality vitiating the order, the Supreme Court held in Alangaraswamy supra that -
"We are also not impressed with this submission. The alleged difference between the two versions is not consequential. The order of detention and grounds accompanied clearly spelt out why the detenu was being detained. We are not persuaded to hold that the two versions are so different as to cause any prejudice to the detenu."
In Kamarunnisa the Supreme Court considered question prejudice resulting from non-supply of some of the documents supporting the grounds of detention which were referred to. The Court observed :
"No hard and fast rule be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice."
In Abdul Sathar Ibrahim Manik supra the question of prejudice again came up for consideration. The Court observed :
"failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation."
In Asha Keshavrao Bhosale v. Union of India, the question of prejudice was considered in the context of various reasons like delay in communication the grounds of detention, non-supply of intelligence report and absence of assistance before the Advisory Board of even a friend of the detenu. The Court observed at Page 181 :
"on the facts, we are, however, satisfied that adequate material had been disclosed and no prejudice appears to have been caused for want of further disclosure. It may be that the exact information received from the intelligence source had not been made available to the petitioner or placed on record, but sufficient material with reference to the intelligence report had been made available. In that view of the matter, we also find no force in the submission :
"the representation made by the petitioner was a second one on the same score and delay in disposing of that representation did not really prejudice the detenus case", and "The rule to be applied is one of prejudice, and on the facts of the case, we are inclined to agree with Mr. Rana that the detenu was not prejudiced in making an effective representation of his case at the hearing by the Advisory Board in the absence of a friend. There are cases where the affected person is in a better position than any one else to place his case, and in the facts and circumstances available on record, we are inclined to agree with Mr. Rana that the detenu is one such."
27. We are of the opinion that the petitioner was not prejudiced by the conditions and restrictions imposed by the detaining authority in the letter dt. 7-9-1991 allowing him to be interviewed by the Advocate within hearing of the Deputy Director or any other person nominated by him of the Directorate of Revenue Intelligence. He and his wife, the petitioner appeared before the Advisory Board and made their submissions urging the Board not to approve the order of detention. The detenu was definitely wordly-wise and could make his submissions with clarity as is evident from his representation. At every stage the detenu had expert legal advice. The wealth of detail in the affidavit accompanying the Writ Petition also discloses that the petitioner was not lacking in information necessary to defend the detenu or to prosecute his plea against the detention order.
28. The conditions and restrictions contained in the order are not shown to have caused any prejudice to the detenu. They did not therefore amount to denial of his constitutional right.
29. We have now to consider the effect of the Judgment in W.P. Nos. 10199 and 10209/91 by another Division Bench. The Division Bench quashed the order of detention for two reasons - (1) that the detaining authority was not shown to have recorded the necessary satisfaction for detention and therefore the order disclosed non-application of mind and (2) Clause 6 of COFEPOSA order whereunder the detenu was allowed interview with his counsel was violative of Art. 22(5) of the Constitution of India.
30. The question of absence of prejudice did not fall for consideration in that decision, even though the Supreme Court had repeatedly held that even if some of the documents referred to in the grounds of detention were not supplied or there was delay in disposal of representation, or there was minor or inconsequential divergence in the grounds of detention communicated to the detenu or if he was not allowed the assistance of a friend in the proceedings before the Advisory Board, he would not be entitled to any relief in the absence of showing prejudice resulting therefrom.
31. The question which we have to consider is whether the detenu was denied of his right under Art. 22(5) of the Constitution of India read with Art. 21 of being effectively represented by an advocate of his choice. We are not here concerned with the validity or otherwise of clause 6 of COFEPOSA Rules. What we are concerned with is whether grant of interview subject to certain conditions amounted to denial of any constitutional safeguard. Considering a similar question, a Division Bench of this Court held in Rajesh Kumar v. State of A.P. (sic), 1987 (2) APLJ 320 that that question has to be answered on the facts of each case. We are satisfied that the detenu had adequate opportunity to submit his representation and that he availed of that opportunity. The fact that he did not seek assistance of a lawyer to represent him before the Advisory Board and that he appeared in person along with the petitioner indicate that his right under Art. 22(5) was not in any manner impaired.
32. It is true that it is necessary for the court to scrutinise every order of detention in the context of the right of individual citizen to have his personal liberty unimpaired except in accordance with law. It is also true that this court is bound to insist that any invasion of personal liberty shall only be in strict compliance with the constitutional and statutory requirements. But in the context of the adverse effect which such prejudicial activities like smuggling may have on the national economy, the question as to whether the alleged violation has caused any prejudice to the detenu may also have to be taken into account.
33. We have referred to a number of decisions of the Supreme Court taking the view that the question as to whether the alleged violation had caused any prejudice to the detenu is material in deciding the validity of the order of detention. We are inclined to take the same view as the Supreme Court that no prejudice was caused to the detenu due to the conditions under which he was to be interviewed by his advocate. He appeared in person along with his wife before the Advisory Board. He was a wordly-wise individual who had expert legal advice at every stage of the proceedings. The facts of the present case disclose that none of the safeguards of Art. 22(5) of the Constitution of India were denied to him. We are supported in this view by the earlier bench decision of this Court in W.P. Nos. 7875/91 and batch, wherein our learned brother Sardar Ali Khan J. speaking for the bench held :
"In so far as the other points with regard to the question of the detenus not being allowed an interview twice a week but only once a week and that too within the hearing distance of the customs officials are concerned, we are of the view that these are not of any consequence. Even otherwise, there is nothing on record to show that the detenus asked for interview with their relatives or friends for more than once in a week. They were granted interviews in accordance with their requests once in a week only with such persons as they desire. Had there been any application by the detenus for more interviews, perhaps it would have been considered by the authorities on merits. Therefore, we do not find it necessary to go into this aspect in any great detail. The other minor point raised is that whenever the interview was granted, the customs officials were found to be present within the hearing distance of the detenus while the detenus were meeting their friends or relatives. This is a point of fact which cannot be gone into in these Writ Petitions. Moreover, none of the detenus has registered any protest for being overhead during the interview and there is nothing on record to show that there was any kind of eaves-dropping by the authorities. We, therefore, reject his argument."
We respectfully agree with the above observations and hold in agreement with the decisions of the Supreme Court in A. Alangarasamy, Kamarunnisa, Abdul Sathar, Ibrahim Manik, Asha Keshavrao Bhosale that even in cases of non-compliance with some minor procedural requirements the detenu will be entitled to succeed only if he shows that such non-compliance had prejudiced him. No such prejudice having been shown in the present case, we are not inclined to interfere with the order of detention.
34. We hold that the detenu in this case is not entitled for the relief which he seeks in this Writ Petition. In the result we dismiss the Writ Petition.
35. Petition dismissed.