Bombay High Court
Prabhakar Mahadeo Pokale vs State Of Goa And Another on 21 February, 1989
Equivalent citations: 1989(2)BOMCR107, (1989)91BOMLR124, 1990CRILJ1610
JUDGMENT Kamat, J.
(1) This is a habeas corpus petition for quashing and setting aside an order of detention bearing No. 14/11/88-HD(G) dated 25th November, 1988 where under Mangaldas Gajanan Kanekar has been taken under detention in the exercise of the powers by the State Government under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from abetting the smuggling of goods. The Petition has been instituted by Prabhakar Mahadeo Pokale styling himself as a friend of the detenu Mangaldas Kanekar on the averment that he is interested in the life, welfare and personal liberty of the detenu.
(2) The detention order dated 25th November, 1988 was served on the detenu pari passu with the grounds of detention by the requirement of Article 22(5) of the Constitution of India on 2nd December, 1988 and the detenu is in detention since that at Central Jail at Aguada. The grounds, Annexure 'B' to the Petition mention that sometime in mid-August, 1988 one Gulam Hussain Shaikh, alias, Gulam Hussain Chougule, alias Baba was contacted at his residence at Bandra by one unknown person claiming to be driver of one Mr. Haji Ahmed alias Babubhai, a Pakistani National that he should contact said Mr. Haji Ahmed. Accordingly a meeting took place at Preetam Hotel, Dadar, Bombay on following day, that aforementioned Haji Ahmed solicited the services of Gulam Hussain Chougule for the purposes of handling the landing of smuggled goods on the West Coast of India. Said Chougule sought a Week's time to give a positive answer in the matter and sometime thereafter contacted the detenu at Banda, a village in Maharashtra on the northern border of Goa and discusses with him the prospect of a landing; that the detenu agreed to make suitable arrangements for the landing of contraband goods and met said Gulam Hussain Chougule on or about 23rd September, 1988. Once the arrangements were made said Gulam Hussain Chougule met aforementioned Haji Ahmed who accordingly arranged for consignment of the contraband to be landed in the month of October, 1988, Mr. Gulam Hussain Chougule was to be paid Rs. 1 lakh towards expenses for landing arrangements and sum of Rs. 50,000/- as and by way of premium to the said Gulam Hussain Chougule. In the meantime Gulam Hussain Chougule made contact with some other persons like Ali Ummar Surya and one Sawant who came down to Goa on 2nd October, 1988 whereas, a meeting took place between them and detenu at Sandya Bar at Mapusa. As previously arranged Gulam Hussain contacted Srirang Fadte who is the owner of fishing trawler by name F.T. Gramdevi Navdurga near Certalim Petrol Pump, and after money changing hands said Gulam Hussain Chougule and Ali Umar Surya took the fishing trawler manned by six crew members. The tindel Vishnudas Datta Sawant was instructed by Fadte to follow the instructions of Gulam Hussain Chougule as a result the fishing trawler came on the high seas opposite Aguada Light House by the evening of 4th October, 1988. This fishing trawler was engaged with a view to contact the incoming Arab dhow which was expected to unload contraband goods and receive therein, but before anything more happened it was intercepted by Customs patrol Craft pursuant to some secret information. The party was apprehended and were taken over to the Customs Patrol Craft. In the meantime however a Coast Guard vessel C. G. S. Vijay appeared on the scene and on search detected and apprehended the incoming Arab dhow by name Tahran Har with contraband goods. 207 ingots of silver which were to be delivered to Gulam Hussain Chougule were apprehended and seized by the Customs Officer under a panchanama. A search of the person of Gulam Hussain revealed a cash amount of Rs. 10,000/-. The tindel of the Arab dhow Tahran Har by name Fakir Mohamad Daud in his statement recorded under Section 108 of the Customs Act disclosed that the Arab dhow belongs to one Abhu Dada based at Sharjah and that on 7th September, 1988 that dhow was loaded with the consignment of 197 ingots of Silver at Khorfakhan Port and on reaching Goa Coast unloaded the same on 13th September, 1988. He further stated that 207 Silver ingots which were presently seized by the Customs Department were meant for delivery to Gulam Hussain Chougule but however this attempt was aborted by the timely intervention on the part of the Coast Guard. The grands further disclosed that the detenu and Srirang Fadte were absconding and avoiding interrogation and the efforts of the Customs Department to trace them turned futile. Then on a reference to the material in relation to the bail, the Court's orders passed, statements by persons involved and medical reports etc. and on consideration thereof the State Government come to the conclusion that the detenu is engaging in abetting the smuggling of goods worth crores of rupees into country and therefore the Government is fully convinced that there is sufficient cause to pass the detention order with a view to preventing him from abetting the smuggling of goods. The impugned order of detention which is based on these grounds is now subject matter of challenge in this petition.
(3) The first of the three grounds that are raised in this petition can be taken up and disposed of together as they relate to the complaint of distorted version in the Marathi translation of the grounds.
(4) In the first place it may be recorded that the petitioner has made an averment on behalf of the detenu that the detenu is not conversant with English language. A Marathi version of the communication had been served on the detenu along with its counterpart in English Mr. Karmali, learned counsel for the petitioner says that the imperative need to serve the order of detention on the detenu in the language known to the detenu can be dispensed with only if the impugned order of detention has been faithfully and substantially translated in the Marathi version. He now complains that the translation of the English version is not only not faithful but very much distorted with the result that whereas in the impugned order of detention the ground invoked falls under Section 3(1)(ii) the translation invokes the ground under Section 3(1)(i). It is suggested that the detention is for prevention from abetting the smuggling of goods but the Marathi version suggests that the detention is required because he is concerned in smuggling of goods. Even otherwise according to him the distortion is such that the detenu was handicapped firstly in the matter of communication of the grounds and secondly in the matter of making an effective representation against detention with the result both facets of Article 22(5) are infringed.
(5) Without any further delay we will come to the objectionable passages. The first of the objections is to a passage appearing in the grounds which reads as under :-
"From the above material the State Govt. has come to the conclusion that you are engaging in abetting smuggling of goods worth crores of Rupees into this country. The State Govt. therefore is fully convinced that there is sufficient cause to pass detention order against with a view to preventing you from abetting the smuggling of goods."
As against this the version in Marathi which is furnished to the detenu reads thus :-
"Matter in Marathi"
"Varil mudhyavarun Rajya Sarkar asha nirnayala ale ahe ki, hya deshat koti koti rupayancha chortya malacha dhandha karnyat agar to karnyasathi prosthahan denyat tujha hatbhar ahe (hya nirnyaprat sarkar alela ahe)."
The passage in relation to the second objection is again in relation to the grounds which read :-
"You and Mr. Srirang Babu Fadte are absconding and avoiding interrogation, efforts made by the Customs Department to trace both of you have turned futile."
As against this the translation furnished in Marathi reads thus :-
"Matter in Marathi"
"Hya sagalya dhamdhumit tu va Shrirang Babu Phadate he aamachi nazar chukavun va prashnachi sarbatti chukvun palun janyachya tayarit asatana Custom khatyachya daksha kamgirimule tumache doghanchehi prayatna niphal tarale."
And lastly again a passage appearing in the grounds states :-
"The State Government has considered but not relied upon the Annexures to the panchanamas of the search of, your residential prermises at Banda and those of Mr. Gulam Hussain Chougle at Bandra & Mahim, Bombay".
And the relevant Marathi translation furnished read thus :-
"Matter in Marathi"
"Tujhya Bandra yetil nivassthani ani Gulam Hussein Chaugule Bandra, Mahim, Mumbai yanchya nivas sthananchi zadhati ghevun jo panchnama kela tya panchnama itar anavashyak babivar visambun na rahanyacha vichar Rajya Sarkarcha ahe."
(6) Mr. Karmali with a view of showing the purported distortion in translation placed before us the official English translation of the Marathi passages recited above obtained from the Translator's Office of this Court at Bombay dated 7th December, 1988. This was produced during the course of the arguments obviously to suggest that the translation now rendered by the Translotor's Office of this Court would not be pari materia with what is available in the original grounds in English and that the distortions would speak for themselves.
(7) Mr. Karmali equally relied upon several decisions unreported and reported in support of his contention that the detention order is liable to be quashed for being invalid on the ground of not furnishing faithful and correct translations in the language understood by the detenu.
He relied upon the decisions rendered by the Division Bench of this Court on 23rd January, 1989 in Criminal Writ Petn. No. 105 of 1988 in Bhagwandas Tmappa Patran v. V. K. Saraf, wherein the detention order of Prabhakar N. Shetty made under Section 3(2) of the National Security Act was challenged. The petition was allowed on the short ground that the translations furnished to P. N. Shetty in Kannada, only language known to the detenu were distorted. By way of abundant caution a Marathi translation had also been furnished to the detenu and it, so happened while Kannada version showed that the detention order was issued with a view to preventing the detenu from acting in any manner prejudicial to the security of the State, the Marathi version showed that the detention was with view to preventing the detenu from acting in any manner prejudicial to the maintenance of law and order. The Division Court relying upon another decision rendered by the Division Bench in Smt. Shashikala Krishnarao Rane v. Union of India, 1987 Cri LJ 1787 (Bom), reiterated that when translations even in different languages are furnished to the detenu by abundant precautions, all such translations must be faithful and the Detaining Authority cannot be heard to say that no fault can be found with the distorted version in a given translation bonded over, even by way of abundant precaution.
Next is the authority again a Division Bench judgment dated 31st March, 1987 in Criminal Writ Petn. No. 1317 of 1986 where the attack again was on highly inaccurate and misleading translations of the order of detention and grounds of detention supplied. The order of detention dated 9th October, 1986 said that the Government of Maharashtra was satisfied with respect to the detenu "that with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods it is necessary to detain him". The translation in Marathi showed that with a view to preventing him from engaging in transporting smuggled goods and also with a view to preventing him from concealing the smuggled goods. In paragraph 11 of the grounds when the allegation was : "Thus you are found engaged in the acts of transporting and dealing in smuggled goods, viz. foreign marked gold biscuits" the Marathi version read : Thus you have been found engaged in the acts of transporting and abetting in smuggled goods viz. foreign marked gold biscuits'. The word 'dealing' referred to in the English version did not find place in the Marathi version. On this count it was held that the right of the detenu was affected in the making of a proper and effective representation and therefore the order was quashed.
(8) There can be no doubt and it is well settled by now that to comply with procedural safeguards spoken to in Article 22 of the Constitution a detenu is to be furnished with documents in the language understood by the detenu and further of the requirement that the translation must be faithful. But however then it must be seen that no facts of two cases are alike and in the matter of complaints qua translations each and every case will have to be decided on its merits. In our view therefore apart from the broad principle the facts of a given case cannot be applied and the translation furnished to a detenu has to be viewed in the light of the facts of that case. We will therefore not refer to several other authorities cited before us by Mr. Karmali.
(9) Before we focus our attention to what is contended in answer by the learned Public Prosecutor we will refer to decisions cited by the learned Public Persecutor in case of A. Alangarasamy v. State of Tamil Nadu, . Based on this decision the contention of Shri Bhobe is on having reference to the order of detention the ground invoked falls in any of the predicates (i) to (v) of sub-section (1) of Section 3 of the COFEPOSA Act and even when the translation invokes a different ground if such version in the first place does not cause prejudice in the making of a proper representation the order cannot be faulted with on procedural safeguard and in the second place the variation in the version appearing in the translation if inconsequential in nature that by itself is no ground for setting aside the detention order.
(10) In Alangarasamy's case the High Court at Madras dismissed the Writ Petition filed by Alangarasamy challenging his detention under Section 3(1)(i) of the Act. The matter was taken before the Supreme Court and though some variation was noticed between Tamil and English versions of the grounds served and the English version had clearly stated the detention order had been passed to prevent the detenu from indulging in smuggling activities while the grounds furnished to him in Tamil disclosed that the detention order had been passed with a view to preventing him from transporting contraband goods the Supreme Court agreed with the Madras High Court that the difference in the version did not cause any prejudice in the making of the representation and thereby rejected the Appeal despite the fact that Alangarasamy only knew Tamil. But what is notworthy in this decision is the ratio that the variations in the version if not consequential the detention order cannot faulted with and quashed. It therefore stands to reason that if the variation is consequential then the detention order is liable to be quashed and if inconsequential the order must be held valid. Mr. Bhobe contended before us that the Marathi versions in this case are faithful and even if it is held to be somewhat distorted it is not consequential and secondly the detenu is not prejudiced at all.
(11) Mr. Bhobe urged th at there is no substance in the challenge of distortion of the first passage translated and furnished which according to him is faithful. There is some variation in the second and at the most minor variation in the third passages. He now contended that if the challenge in respect of the second and third objectionable passages is accepted the same would not matter and the detention order can yet survive on the remaining grounds. For this proposition he relied in the decision of the Supreme Court , Pushapadevi M. Jatia v. M. L. Wadhavan and in the decision of Prakash Chandra Mehta v. Commr. and Secy., Govt. of Kerala, . The Supreme Court held that though one or more grounds are found to be vague, non-existent, not relevant, not connected, irrational and invalid for any other reason whatsoever detention could be sustained on remaining grounds. The law laid down by the Supreme Court in Shibban Lal Saksena v. State of Uttar Pradesh, , Dr. Ram Manohar Lohia v. State of Bihar, and Pushkar Mukherjee v. State of West Bengal, , is held to be no longer good law in view of introduction of Section 5A, a newly incorporated Section in the COFEPOSA Act. Mr. Bhobe is right in saying that by virtue of the incorporation of Section 5A it is no long necessary that whatever grounds invoked by the Detaining Authority must all stand the test of validity at one time. In the decision of Prakash Chandra Mehta v. Commr. and Secy. (supra) the question arose on the validity of the argument that the confessional statement relied upon by the Detaining Authority had been retracted. The argument was that the confessional statement was inadmissible in evidence on the ground that it had been recorded by an Officer who was not a Gazetted Officer and the copy of the retraction had not been placed before the Detaining Authority. On a conspectus of several authorities the Supreme Court held that even if one ground is irrelevant or inadmissible that would by itself not make the detention order invalid. Mr. Karmali however has considerable quarrel and urged that the submission of Mr. Bhobe was erroneous in that Section 5A of the Act could not be imported in the present case. The submission is that so long as constitutional safeguards are adhered to viz. communication, then only it is open to the Detaining Authority to contend that the detention order can survive on some other grounds though one or more grounds may be found to be irrelevant, invalid etc. According to him it clearly presupposes that there had been communication of the grounds according to law viz. Article 22(5) and if the vice of non-communication visits at the initial stage itself then the order of detention would become void ab initio and therefore Section 5A cannot be applied. In support of this proposition he relied upon the decision of Chandra Shekhar Ojha v. A. K. Karnik, reported in 1982 Cri LJ 1642. The matter that fell for consideration in this case before the Division Bench of this Court was when the supplied documents, some were either wholly blank or illegible which amounted to non-supply of relevant documents relied upon for making of the detention order whether it is open to the Detaining Authority to urge and invoke Section 5A in respect of those grounds which were based on blank and/or illegible documents. The Division Bench ruled that if the detention itself was not according to the procedure prescribed by law, the question of supporting the void order of detention by taking recourse to Section 5A of the COFEPOSA Act could not arise, for an order which was void ab initio could not be validated by taking recourse to Section 5A thereof. The rationale behind this decision was that Section 5A would come into operation only after the communication of the grounds was found to be faultless by the constitutional safeguards.
(12) Coming back to the passages purported to be distorted versions in Marathi language, let it be noted in the first instance that the gravemen of the charge against the detenu is abetting the smuggling of goods and with view to prevent that prejudicial activity, it is necessary to detain him and the detention therefore falls under Section 3(1)(ii) and that is what is found in the order of detention and grounds conclusively. Relying upon the official Translator's version from, Marathi into English, Shri Karmali says it comes to : 'You are doing the smuggling of goods worth crores and crores of rupees or or abetting the same in this country'. Both of us know Marathi sufficiently well. The correct translation or near faithful of Marathi version in English is : "From the above material the State Government has come to a conclusion that in this country smuggling of contraband worth crores and crores Rupees is being done and you are encouraging and cooperating in that". In our view the translated version undisputably does not give the conclusion that the detenu is doing smuggling or engaged in smuggling under Section 3(1)(1). On the contrary the whole thrust is on the words (encouragement) and (co-operation) i.e. abetment of the smuggling activity. Unfortunately the Official Translator whose translation is given to us has missed the bus and we are unable to accept that translation made by that Office. It suggests as if there is an allegation against the detenu that he himself has been doing the smuggling of goods worth crores of rupees which in reality is not the case. We fail to understand as to how such imputation can appear in the translation made by the Translator's office when no such imputation can be found in the Marathi version furnished to the detenu. We are therefore in agreement with the learned Public Prosecutor that no distortion or misrepresentation can be read in the two versions English and Marathi. Mr. Karmali is therefore not right in saying that in the first portion in Marathi the ground invoked is under Section 3(1)(1) and the second part viz. encouragement and cooperation falls under Section 3(1)(ii) of the Act and that way there has been distortion and therefore no proper communication.
(13) So far as the alleged distortion regarding absconsion of the detenu and Srirang Fadte and avoiding interrogation rendering efforts made by the Customs Department to trace both of them futile, it must be stated that the Marathi translation states that the detenu and Srirang Babu Fadte are avoiding interrogation and while they were trying to run away such attempts were failed by the Customs Department. This is incorrect translation and suggests that the Customs Department's attempts prevented the detenu and Fadte from avoiding interrogation and their apprehension. But in our view the thrust is on the absconsion and avoidance of interrogation by the detenu and said Fadte. The so-called distorted version that on account of the attempts of the Customs Department they were prevented is lit our view of secondary importance and not consequential. There is nothing to suggest that on this aspect of the so-called distorted version the detenu was misled in the matter of either the communication of the grounds or in the matter of making an effective representation.
(14) What is said above is also applicable to the last of the objectionable passage namely that in the English version it is mentioned that the Government has considered but not relied on Annexures to the panchanamas viz the search of the residential house premises of the detenu at Banda and that of Gulam Hussain Chougule at Bandra and Mahim at Bombay. Insofar as the Marathi version rendered of this passage it is mentioned that the Detaining Authority has not relied upon the unnecessary matters appearing in the Panchanama. The fact however remains that in the English version the Detaining Authority said it has considered but not relied upon the Annexures to the panchanamas. The Annexures are part of the panchanamas and when the Marathi translation states that it has not relied upon unnecessary materials in the panchanama it is related to the Annexures. Even taking the matter to its worst in our view the so-called distorted version by itself is inconsequential in nature and therefore cannot go to invalidate the order of detention. Mr. Karmali did urge before us that this material was vital for the purposes of the dentention and therefore it had to be translated substantially and faithfully. We are however unable to agree with him. We have already held that the so-called passages having incorrect version are incon-sequential in nature. Mr. Karmali however insisted relying upon the authority of a Division Bench of the Delhi High Court in Chhiba Vallabhabhai Tandel v. Union of India, reported in (1984) 2 Crimes 904 that the ground conveyed in English may be called cheese whereas the version conveyed in Gujarati was chalk. We are conclusion of the difference between cheese and chalk and on the facts of this case it is not possible to hold that this authority will assist the detenu presently.
(15) Ground No. (iv) raised in the petition has not been urged before its by Mr. Karmali on a statement by him that in the affidavit there has been satisfactory explanation filed by the Under Secretary and therefore he is unable to urge that ground.
(16) The next ground urged is that immediately after the detenu was taken in detention on and December, 1988 the members of the detenu's family have not been informed about such detention. Placing reliance on the decision of the Supreme Court rendered in A. K. Roy v. Union of India, it has been urged that it is imperative and what is more mandatory that either the Detaining Authority and/or Officer in charge of the jail to inform the members of kith and kin of the detenu about the detention and/or when the detenu is transferred from one to another. It is true that while reading the mandate in Article 21 of the Constitution of India in para 75 of the Report the Supreme Court said that it has to make an observation which is of great importance in the matter detention. That in order that the procedure attendant upon detention should Conform to the mandate of Art. 21 in the matter of fairness justness and reasonableness, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household preferably the parents, the child or the spouse, must be informed in writing on the passing of the order of detention and of the fact that the detenu has been taken in Custody Automation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. In support of this observation of the Supreme Court and after placing reliance on the words imperative that immediately after a person is taken in custody and being the mandate read in Article 21 Mr. Karmali flourished three judgments of two different Division Benches of the Gujarat High Court. It is true that an finding that neither the detaining Authority nor the officer-in-charge of the jail had informed the members of the family of the detenu the detention orders had been quashed on the basis of the observations of the Supreme Court in A. K. Roy's case (supra). We are however unable to invalidate the order of detention on this ground because in all fairness, Mr. Karmali has stated across the Bar that it is the detenu who surrendered before the Police to obtain service of the detention order and not that the order was served on him, wherever he was found. The matter would have been perhaps different and Mr. Karmali would have been right if the detention order had been served or the detenu by the Police on their own. The very fact that the detenu himself surrendered and got the order served on himself, we do not see as to why we should hold that the Detaining Authority or the Officer-in-charge of the jail has contravened the mandate read in Article 21 of the Constitution. This disposes of ground (v) in the Petition.
(17) Coming to ground No. (vi) it has been submitted that the Detaining Authority has nowhere in the grounds of detention recorded its satisfaction which was imperative that the detenu was likely to indulge in future in abetting the smuggling of goods and that he would continue to do so unless prevented from doing so. It is urged in the absence of such satisfaction being recorded the Detaining Authority could not have invoked the extraordinary powers to incarcerate the detenu under preventive detention. In our view a short answer to this ground is sufficient and that is explicit on reading the grounds which clearly mention after setting out the material facts and conclusions to which abundant reference is made earlier elsewhere in this judgment to the effect that : "from the above material the State Govt. has come to the conclusion that you are engaging in abetting smuggling of goods worth crores of Rupees into this country. The State Govt. therefore is fully convinced that there is sufficient cause to pass detention order against you with a view to preventing you from abetting smuggling of goods."
(18) Grounds No. (vii) and (viii) can be dealt with together as they relate to same set of facts and documents. In ground No. (vii) it has been mentioned that the Chief Judicial Magistrate, South Goa, Margao referred a co-detenu Gulam Hussain Chougle to be examined by the Doctors at the Goa Medical College Hospital and further sought a medical certificate or report from the said Hospital. As the certificate report did not come a directive dated 14th October, 1988 vas addressed by the Court to the Dean of the Goa Medical college Hospital. A report by the said Hospital was submitted on 15-10-88 (Annexure G). The directive of the Court and medical report had not been placed before the Detaining Authority and this material having been relied upon in the grounds of detention the subjective satisfaction of the Detaining Authority must be held impaired thereby invalidating the impugned order. In ground (viii) the submission is that the document at page 621 (Medical case papers of the Hospital) of the Compilation of documents furnished to the detenu is very faint and illegible. The document being faint and illegible it was urged that there was non-communication of the ground by the mandate of Art. 22(5) of the Constitution and therefore in the eyes of the law the grounds of detention were not furnished and with that the detenu was also impaired in the making of an effective representation and therefore the detention order is ab initio null and void.
In answer to these grounds Shri U. T. Kamat, Under Secretary of the Goa Govt. has in the first place denied the submission of the non-placement of the documents and has further averred that the medical report referred to in Annexure G of the petition was prepared on the basis of the contents of the Medical case papers of Shri Gulam Hussain Chougule which is at Sr. No. 65 of the list of documents and these documents were placed before the Detaining Authority and therefore it was not necessary to place the documents exhibited at Annexure G to the petition. In the second place it is averred those documents were not vital or material piece of papers which could have influenced the mind of the Detaining Authority one way or the other and at any rate the letter written by the Chief Judicial Magistrate to the Dean of the Goa Medical College on 14-10-88 was not in possession of the sponsoring authority.
(19) Insofar as the allegation with regard to the faintness and illegibility of the document at page 621 while denying the same it has been averred that the same is readable.
(20) Mr. Karmali placed before us the Compilation of Documents given to the detenu when the grounds were furnished to him pari passu with the order of detention on 2nd December, 1988 and while we may agree that the document at page 621 is faint it is not possible to hold that it is illegible. We have gone through that document which is case sheet (Goa Medical College Hospital) relating to the admission of co-detenu Gulam Hussain Chougule (whose detention has since been quashed on technical grounds). The Hospital case sheet records the findings on the person of said Chougule which is at page 621 of the Compilation. The material in this document reflects in Annexure (Exh. G to the Petition) what is not placed before the Detaining Authority is the order/directive of Chief Judicial Magistrate, Margao. The medical case papers were admittedly placed. The directive of Chief J.M. only called upon the Dean to submit the medical certificate or report which directive was complied with by the Dean. That directive was in the first Place inconsequential in nature an inasmuch as adequate material was placed we fail to understand how that directive dated 14-10-88 would make any difference or prejudice the detenu.
We equally fail to see as to how the so called faintness of that document Can be urged to invalidate the detention order. Mr. Karmali did urge before us that the detaining authority had to strain itself to read such document at page 621 and therefore a doubt arises whether the Detaining Authority had himself done so and that way applied its mind. He equally urged with exuberance that the detenu in the absence of good lights in the jail premises which are generally dingy will have to strain himself to read a faint document and therefore a challenge on that ground at least be accepted. In this connection he relied upon the observations rendered by a Division Bench of this Court in Criminal Writ Petn. No. 65 of 1986 on 23rd April, 1986.The Division Bench observed that a detenu will have no assistance or help nor a magnifying glass available to him in the jail. It is true that detenu is not expected to be supplied with a magnifying glass but however the fact remains that in that case the documents some of them were blank and the others were so illegible that they could be read only with a magnifying lass. This finding has been clearly recorded in para 7 of the judgment. There is no advantage in multiplying authorities. As said earlier we have ourselves gone through that document and we are not enamored by the argument that the document is so faint or illegible that the reading of it is not possible unless the detenu has a magnifying glass.
(21) The last point urged by Shri Karmali in grounds No. (ix) and (x) is that the Detaining Authority has not considered the normal punitive measure and once having not recorded decision in that behalf the detention order must be held to be invalid. The non-giving the show cause notice under the Custom Act of 1962 nor the launching of the prosecution against the detenu thereunder the Detaining Authority ought to have refrained from welding the extraordinary power of preventively detaining the detenu. We hardly see any force in these contentions. We have elaborately referred to the grounds furnished to the detenu. The order made is under Section 3(1)(ii) of the COFEPOSA Act. The Detaining Authority clearly reached the conclusion having regard to the material placed by the sponsoring Department and from the attendant part played by the Detenu namely that he is engaging in abetting smuggling of goods worth crores of rupees into this country and therefore there is sufficient cause to pass detention order with a view to preventing him from abetting the prejudicial activity of the sumggling of goods. There was sufficient material on record for the formation of subjective satisfaction in the present Case which cannot be denied. From time against the Supreme Court has laid down that the Court is unable to consider the propriety or sufficiency of the ground on which the satisfaction of the Detaining Authority is based nor can on review of the grounds substitute it own opinion for that of the authority. This is however not to say that the power of the Court is wholly immune from the power of judicial review but only in limited cases when the detention is not bona fide and is clamped by mala fides. We are satisfied on the facts disclosed that here is a case where there is bona fide exercise of the powers and there are sufficient grounds for upholding the validity of the impugned order as the subjective satisfaction arrived at by the Detaining Authority it is necessary that the detenu should be preventively detained for preventing him from abetting the Smuggling of goods into this country.
(22) Ground No. (xi) has not been urged very fairly by Shri Karmali in statement made by the Under Secretary in the affidavit.
(23) Petition therefore fails. The rule made earlier is discharged.
(24) At this stage an oral"application is made by the counsel for the detenu for certificate for leave to appeal to the Supreme Court. There is no substantial question of law much less of public importance involved. Therefore leave is rejected.
(25) Petition dismissed.