Andhra HC (Pre-Telangana)
Mohammed Zaffar vs The Government Of Andhra Pradesh And ... on 19 November, 1991
Equivalent citations: 1992(1)ALT354, 1993CRILJ519
JUDGMENT Sardar Ali Khan, J.
1. These seven writ petitions form an integral batch filed for the issue of writs of these writ petitions. All the seven writ petitions are linked together by common questions of facts and law. The detenus involved in all the cases are supposed to be engaged in a common pursuit of illegal smuggling of gold and selling the same in various parts of the country and obtaining foreign currency for the sale of the gold smuggled by them. These detenus have been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52/74), as amended by Act No. 23/87). hereinafter referred to as the "COFEPOSA Act". The facts in W.P. No. 7875 of 1991 may be narrated to indicate the common nature of issues of fact and law arising in the batch of writ petitions. However, it may be necessary to refer to the facts in an individual case if there is any special feature of the case which calls for consideration from a different angle insofar as that case is concerned. The general theme of facts, as given in W.P. No. 7875 of 1991, is as follows :
The petitioner in W.P. No. 7875 of 1991 is one Mohd. Zaffar. He is undergoing detention in Central Prison at Hyderabad for indulging in activities resulting in grave violation of Section 3(1) of the COFEPOSA Act. The detenu, by profession appears to be a men of small means, who are eking out his livelihood as a painter in one of the localities in Hyderabad City. The order of detention dated 6-5-1991 was passed against him ordering his detention under S. 3(1)(iii) of the COFEPOSA Act, which is in the following terms :
"No. 506/General. A/91/10 GOVERNMENT OF ANDHRA PRADESH General Administration (General. A) Department.
HYDERABAD.
Dt. 6-5-1991.
ORDER WHEREAS, I, S. V. Prasad, Secretary (Political) to the Government of Andhra Pradesh, General Administration Department, Specially empowered officer under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) read with G.O.Ms. No. 621 General Administration (General-A) Department, dt. 15-11-1990 of Government of Andhra Pradesh, am satisfied with respect to the person known as Sri Mohammed Zaffar, son of Mohammed Ismail, aged 20 years, H. No. 22-3-175/5, Ist Floor, Hathi Begumpalli, Yakutpura, Hyderabad, that with a view to preventing him effectively from engaging in transporting or keeping or concealing of smuggled goods, it is necessary to make a detention order :
NOW, THEREFORE, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Sri Mohammed Zaffar be detained under section 3(1)(iii) of the said Act and kept in the Central Prison, Hyderabad.
Sd.
S. V. Prasad,
Secretary to Government (Political)
Sri Mohammed Zaffar, son of Mohammed Ismail, aged 20 years, H. No. 22-3-173/5, Ist Floor, Hathi Begumpalli, Yakatpura, Hyderabad.
(Presently lodged in the Dist. Jail, Secunderabad as Remand Prisoner.)"
2. By a letter bearing No. 596/General. A/91-10 dated 6-5-1991 the Government of Andhra Pradesh, General Administration (General. A) Department served on the detenu, through the Secretary to Government (Political), the grounds of detention narrating in detail the prejudicial activities indulged in by the detenu and other members belonging to the same group. A brief reference to the grounds of detention will not be out of place to indicate the modus operandi indulged in by the group of detenus covered in this batch of writ petitions. The Officers of Directorate of Revenue Intelligence, Zonal Unit, Madras, along with mediators, made a surprise check in Room No. 306 at Hotel Maya at Secunderabad at about 9-00 p.m. on 10-4-1991 in the reasonable belief that transactions in contraband gold and foreign currency were going on by some persons. At that time one Hanif Noor Mohammed Mansoor alias Iqbal and another person Ashram Champalal Sahadeva were present in the room. Some incriminating material used in concealing contraband gold and foreign currency and also one private account book and photo copy of the account sheet were seized by the officers. While the search was in progress, the detenu Mohd. Zaffar entered the room along with another person, known as Mohd.
Nayeem. On interrogation, Hanif Noor Mohammad stated that the two persons, who came in later, mush have brought the sale proceeds in foreign currency for the foreign gold delivered to them earlier. The officers took a search of Mohd. Zaffar and Mohd. Nayeem. They recovered two packets from the trouser pockets of Mohd. Nayeem, which contained 24,600 US Dollars, equivalent to Rs. 4,84,001-58 ps. in Indian Currency. On further interrogation, both the new comers told the authorities that they had reached the hotel by a scooter bearing No. AP 10-A 3774. All the persons, who were present in the room at the time, failed to produce any valid documents about the possession of the foreign currency. The US Dollar currency was seized by the authorities on the ground that it was smuggled into India and it represented the sale proceeds of the contraband gold. The incriminating material and the account book and the sheet and also the scooter were also seized with the reasonable belief that these articles had been used in transportation of smuggled foreign currency. An inventory was made, annexed to the mahazar, on which signatures were taken. Mohd. Hanif in his statement given under section 108 of the Customs Act, 1962 dt. 11-4-91 admitted having received a copy of the seizure mahazar dt. 11-4-91 drawn up at Room No. 306 of Hotel Maya and confirmed the proceedings and other particulars contained therein. He also state that he discontinued his education after completing first year of M.Sc. Course and took up business of export of garments for children to Iraq. After some time he came into contact with one Omarakash of Delhi through another person Indrajit Singh. He was offered a monthly salary of Rs. 10,000/- by Omprakash to help him in the business that he was carrying on. In December, 1990 he was introduced to one Ashok and six others, viz., Narayana, Nikunj Sharma, Champalal, Raj Kumar Mandan Sushil Kumar Soni and Ganesh. Hanif Noor Mohammed was asked to remain at Hyderabad and to receive the contraband gold to be sent to him by Omprakash from time to time through the abovenamed six persons and then to deliver the gold to one Ismail of Hyderabad against money in foreign currency and send the sale proceeds in foreign currency to Omprakash in Delhi through the same carriers who delivered the gold to him in Hyderabad. Hanif Noor Mohammed admitted that he was carrying on operations from 22-1-1991 and that he had, as on the date of the seizure in question transacted in about 412 gold biscuits and passed on to Omprakash in Delhi in foreign currency sale proceeds worth about Rs. 1.82 crores. He identified some of the persons of the gang involved in the matter. Hanif Noor Mohammed also handed over some photographs of the three carriers viz., Sushil Kumar Soni, Narayana and Ganesh and gave graphic particulars about these carriers. The man Champalal gave a statement on 11-4-91 under section 108 of the Customs Act, 1962 admitting his presence in Room No. 306 of Hotel Maya at the time of the seizure of the various articles including foreign currency to which a reference has already been made above. He admitted that he was working as a carrier along with others for Ompraash of Delhi for clandestine transportation of contraband gold from Delhi to Hyderabad. He further stated that he used to transport nine gold biscuits in each trip and he was paid Rs. 1,800/- in addition to expenses for each trip. Mohd. Nayeem his statement under section 108 of the Customs Act admitted the seizure of 24,600 U.S. Dollars from his possession by the officers at Room No. 306 of Maya Hotel at about 9-45 p.m. on 10-4-1991. He also stated that Mohammed Zaffar and himself were engaged by Ismail of Hyderabad for delivering foreign currency to Hanif at the said Hotel room and was to receive contraband gold against the foreign currency in accordance with the instructions give to him. Mohammed Zaffar also gave a statement under section 108 of the Customs Act admitting the seizure of 24,600 U.S. Dollars from the possession of Mohd. Nayeed by the officers and corroborated the statement of Mohd. Nayeem in all material particulars, and added that he had already carried contraband gold, foreign currency seven times in the manner stated above. In their separate statements recorded under Section 108 of the Customs Act, which are corroborative of each other in all material particulars Nikunj Sharma and Rajkumar Mandan admitted that they were engaged, along with four others, by Omprakash of Delhi for clandestine transportation of contraband gold from Delhi to Hanif Noor Mohammed of Hyderabad. They used to obtain foreign currency from him to be handed over to Omprakash at Delhi, concealed in water bottles. They confessed that they had undertaken three such trips from Delhi to Hyderabad for a remuneration of Rs. 1,800/- each besides expenses for each trip.
3. The officers continued surveillance at the reception counter of Hotel Maya on 11-4-91. At about 6.30 p.m. on that day they came to know that a person, who was subsequently identified as Sushil Kumar Soni, was making enquiries about Room No. 306 at the Reception counter. The officers apprehended the said Sushil Kumar Soni and recovered 17 foreign marked gold biscuits from his possession and seized them under the cover of a mahazar. In his statement under section 108 of the Customs Act, Sushil Kumar Soni confirmed the particulars of Mahazar dt. 11-4-91 relating of seizure of contraband gold from his possession as true and he further confirmed that he was working for Omprakash of Delhi along with five others carriers and that he was carrying contraband gold from Delhi to Hanif Noor Mohammed in Hyderabad, according to the instructions and carrying back the sale proceeds from Hanif Noor Mohammed to Omprakash in Delhi. He identified Mohd. Nayeem and Mohd. Zaffar as the persons who were also engaged in the same operation. Mohd. Zaffar, Hanif, Champalal, Mohd. Nayeem Raj Kumar Mandan and Nikunj Sharma were arrested on 11-4-91 and Sushil Kumar Soni was arrested on 12-4-91 under the provisions of the Customs Act, 1962 and were produced before the Special Judge for Economic offences, Hyderabad on 12-4-1991 under a remand report. All the detenus moved a joint bail application on 14-4-91, except Sushil Kumar Soni, and they all pleaded innocence and alleged that the statements were taken in threat and coercion. The bail application was dismissed by the Special Judge for Economic offences, Hyderabad by his order dt. 23-4-91. Sushil Kumar Soni moved a separate bail application on 18-4-1991 and the same was also dismissed by the learned Special Judge for Economic offences, Hyderabad on 23-4-91. The Assistant Director, Directorate of Revenue, Madras filed an application dt. 26-4-1991 for extension of remand before the Special Judge for Economic Offences and the latter passed an order extending the remand of all the detenus up to 10-5-1991. All the detenus moved another bail application which was also dismissed by the Special Judge for Economic Offences. In the grounds of detention it is stated that on a careful consideration of the foregoing material, the authority is thoroughly convinced that the detenus have been engaging in clandestine keeping, concealing and transporting of contraband gold and also sale proceeds thereof in foreign currency at the instance of one Ismail of Hyderabad, who is yet to be traced and have been indulging in a manner seriously prejudicial to the national interest. The detenus were also informed that they have a right to make a representation in writing against the order of detention to the State Government, the Central Government and also the Advisory Board and if they wanted to make a representation they were advised to address it to the Chief Secretary to the Government of Andhra Pradesh or the Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi or to the Chairman, Advisory Board, as the case may be, or to all these authorities and may forward the representation through the Superintendent, Central Prison in which they are confined.
4. The object of giving the above facts in detail is to show the co-ordinate link existing between the different detenus who have handed together to carry on the clandestine operations of transporting or concealing or keeping of contraband gold and the sale proceeds in foreign currency in an organised manner. Most of the facts which have been narrated in W.P. No. 7875/91 are common in all the writ petitions with minor exceptions here and there which will be referred to, if necessary, during the course of this judgment. It is also evident that the detenus have been apprehended red-handed in Room No. 306 of Hotel Maya at Secunderabad when they were actually engaged in the process of dealing in foreign contraband gold and foreign currency which were recovered from one of the detenus, viz., Mohd. Nayeem, the detenu in W.P. No. 8604/91, on the spot. All the detenus continue to be under arrest in Central Prison at Hyderabad as the order of remand has been extended by the learned Special Judge for Economic Offences. It is in this background that the case of the petitioners for the issue of a writ of habeas corpus for their release from the Central Prison will have to be considered.
5. Sri Kumar, learned Counsel appearing on behalf of the petitioners in all the writ petitions, has made the following detailed submissions. His first submission is that the order of detention is not in terms of Section 3(1)(iii) of the COFEPOSA Act, which shows that the order has been made in a casual manner without any application of mind. He also stressed the point that the right of representation in the detenus has been denied to them. The second submission made by the learned Counsel is that the order of detention and grounds of detention are at variance with each other. In his third submission the learned Counsel attacks the procedure adopted by the Government and the Advisory Board as being unfair and violative of the rules of natural justice and also Article 21 of the Constitution of India. The other submissions made by the learned Counsel, Mr. B. Kumar, generally are about the alleged delay in considering the representation sent on behalf of the detenus and it is further contended that there is no necessity to detain the detenus when they are already remand prisoners and hence they are prevented effectively from acting in a prejudicial manner. The learned Counsel also stresses the fact that in so far as the case of Mohd. Zaffar, detenu in W.P. No. 7875/91, is concerned, it is on a different footing from the other detenus, as nothing incriminating has been recovered from him and there is no material to show that the said Mohd. Zaffar was involved in any clandestine activity of engaging in transporting or concealing or keeping smuggled goods. The learned Counsel further states that the detenus have been treated unfairly and harshly in not being allowed to meet the visitors twice a week but only once a week and that too within the hearing distance of the customs officials.
6. The first three submissions made by the learned Counsel for the petitioners deserve to be treated separately from his other submissions which have been indicated above. It is proposed to deal with the first three submissions in the order in which they have been referred to in this judgment.
7. In order to appreciate the Ist contention raised by the learned Counsel for the petitioners, it would be necessary to reproduce here Section 3 of the COFEPOSA Act which is in the following terms :
"3. Power to make orders detaining certain persons :-
(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government not below the rank of a Secretary to that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or agumentation of foreign exchange or with a view to preventing him from
i) smuggling goods, or
ii) abetting the smuggling of goods, or
iii) engaging in transporting or concealing or keeping smuggled goods, or
iv) dealing in smuggled goods otherwise than engaging in transporting or concealing or keeping smuggled goods, or
v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."
8. The orders of detention in these writ petitions have been passed under S. 3(1)(iii) of the COFEPOSA Act which deals with the question of engaging in transporting or concealing or keeping smuggled goods. The sum and substance of the contention of Sri B. Kumar, learned Counsel for the petitioners, is on the following lines : A reading of the order of detention, which has already been reproduced above, shows that when the authority specially empowered under section 3(1) of the COFEPOSA Act expresses its satisfaction with respect to the persons detained with a view to prevent them effectively in engaging in transporting or concealing or keeping smuggled goods, it is necessary to make a detention order. It is to be noted that there is a disjunctive "OR" used in so far as the activity of transporting or concealing or keeping smuggled goods is concerned. In the grounds of detention in paragraph 19 it is stated by the authority "On careful consideration of the foregoing material, I am thoroughly convinced that you have been engaging in clandestine keeping, concealing and transporting of contraband gold and also sale proceeds thereof in foreign currency." There is no disjunctive 'OR' used in the grounds of detention where the activity of the detenus engaging in clandestine keeping, concealing and transporting of contraband gold is concerned. The wording in clause (iii) of sub-section (1) of Section 2 is "engaged in transporting or concealing or keeping smuggled goods". Since the disjunctive 'OR' has not been used in the grounds of detention whereas the same has been used in the order of detention, it is submitted by the learned Counsel Mr. B. Kumar that there is a variance in the order of detention disjunctive 'OR' in the order of detention reveals the fact that the detaining authority has not been in a position to make up its mind as to in what activity the detenu has been indulging in and therefore the order of detention is bad for want of application of mind and also for being vague in material respects. The learned Counsel has also stated that in Section 3(1)(iii) of the COFEPOSA Act the disjunctive 'OR' has been used which indicates that the categories mentioned therein viz., transporting or concealing or keeping smuggled goods, are exclusive of each other and any one of the activities, say either transporting or concealing or keeping the smuggled goods, is enough to bring a person within the pale of Section 3(1)(ii). We want to examine this contention in all its ramifications to arrive at a conclusion on this primary submission made by the learned Counsel for the petitioners. In Sec. 3(1)(iii) reference has been made to anyone engaging in transporting or concealing or keeping smuggled goods. All these activities of transporting or concealing or keeping smuggled goods have been mentioned in one clause only. We find it extremely difficult to agree with the reasoning of the learned Counsel, Mr. B. Kumar that each activity, like transporting or concealing or keeping smuggled goods, should be read as being mutually exclusively of each other. We do not see how this approach really stands to reason when it is all the more possible that a person may be engaged in transporting or concealing or keeping the smuggled goods in a composite fashion. Indeed, it can be said that normally speaking all the three activities could be performed by a person in a composite fashion when he is engaged in the illegal activity of transporting or concealing or keeping the smuggled goods. Let us analyse this section a little further, to see whether the act of transporting can be treated as a separate water tight compartment from the act of concealing or keeping the smuggled goods, as the case may be. In the act of transportation of smuggled goods a certain element of concealment is bound to creep in. In what facts of each case and the modus operandi of the person who is fashion the goods are sought to be concealed will depend upon the engaged in such in illegal activity. Moreover, when the smuggled goods are being transported, can it not be said that the person who is in charge of transporting or concealing is also keeping the goods in his possession or custody ? In every day life it is easy to visualise that when a thing is transported say in the boot of a car or in a receptacle which is being carried in a goods vehicle or for matter through any other means of transport, all the three elements of transportation, concealment and keeping of the goods may be present which will culminate in the illegal activity of dealing in the smuggled goods in the manner indicated in clause (iii) of sub-section (1) of Section 3. We have, therefore, no difficulty in rejecting the contention of the learned Counsel for the petitioners that each of the three actions of transporting, concealing and keeping the smuggled goods must be viewed separately from the other elements involved in the matter. Therefore, the use of the disjunctive in the order of detention that the detenu has been engaged in transporting or concealing or keeping smuggled goods is in conformity with the wording of S. 3(1)(iii) of the COFEPOSA Act itself. The use of the disjunctive 'OR' cannot be taken as an indicative of the fact that these are necessarily to be interpreted as acts which are distinct and separate from the other elements which have been mentioned in the said section. The act of transporting or concealing or keeping the smuggled goods can be independant of each other. A man may keep smuggled goods without making any attempt for transporting the same or he may even not take steps to conceal the goods from the eyes of others but since he would be keeping the smuggled goods, still he would come within the ambit and scope of Section 3(1)(iii) of the COFEPOSA Act. While this being so, it cannot be said that under no circumstances the act of transporting or concealing or keeping smuggled goods can form part of a single activity of removal goods from one place to another. In other words, we cannot view these things in water tight compartments distinctly separate from each other. These activities can be indulged in by merging all the three into one act or may be sometimes performed in a separate isolated fashion depending upon the facts and circumstances of each case. Even a plain reading of the said clause (iii) does not warrant an interpretation which is sought to be put on it by the learned Counsel for the petitioners. It is quite true that in the grounds of detention the word 'OR' has not been used. In para 19 of the grounds of detention it is stated that the detenu has been engaged in clandestine keeping, concealing and transporting of contraband gold and also sale proceeds thereof in foreign currency. The obvious meaning sought to be conveyed in the grounds of detention is that the detenu is engaged in the activity of either keeping or concealing or transporting of contraband goods or that he is performing all these three things in a joint fashion to get away from the illegal gotten gains of his activity which is prejudicial to the national interest. Under these circumstances, it cannot be said that there is any material irregularity in the order of detention passed by the authorities which renders it null and void in the eye of law. It is also difficult to hold that the order of detention is vague and nebulous and therefore affects the right of representation to be made by the detenu before the concerned authorities for their release from the preventive custody. The fact of the matter is that if the order of detention clearly conveys the view of the detaining authority that the detenu is engaged in a particular activity which comes within the catch of Section 3(1)(iii) than the said order cannot be assailed on minute grammatical interpretations of the words used therein in accordance with one's own fancies. It is not the skill of draftsmanship which is to be judged in cases of this nature but what has to be seen ensured is that the order does not suffer from vagueness or obscurity so that the detenu may not be in a position to prove his innocence before the authorities of the charge levelled against him. It is no doubt true that a case of preventive detention is a matter of serious judicial concern and the courts must be alive of the fact that no one can be put behind the bars and deprived of his liberty on the pretext that he likely to indulge in activities which may be prejudicial to the interests of the country at large on flimsy grounds. But than does not mean that the orders of detention could be assailed on hyper-technical questions which really do not have a bearing on the real issue involved in the matte. We are prepared to go even to the extent of saying, though it has not been argued by the learned Counsel in that manner, that what is to be judged is that the order of detention must not only convey to the detenu the precise case against him in a forthright manner but that it also should not betray any lack of knowledge or nor-application of mind on the part of the authorities making such an order. If the order does not covey the necessary import of the charge against the detenu it would be liable to be being vague and indefinite in its contents. Moreover, if the order in a given circumstances of the case shows that the authority which made such an order has not been in a decided frame of mind or has dealt with the matter in a manner which shows that it has really not bestowed its due care and attention on it, then the order will be liable to be set aside. We do not find any of these elements present in the order of detention or in the grounds of detention to warrant such a conclusion in these cases before us.
9. The learned Counsel for the petitioners strongly relied upon the decision of the Supreme Court reported in Jagannath v. State of Orissa, , in which it has been held that the authority ordering detention under the Defence of India Rules should act with a full sense of responsibility keeping in mind on the one hand the interests of the country in the emergency which was existing then and on the other hand the importance of the liberty of the citizen in a democratic society. In this view of the matter the Supreme Court held that the authority while passing an order under Rule 30(1)(b) of the Defence of India Rules taking away the liberty of a citizen should not act with due care and caution and see that the person detained is so detained on grounds which justify the detention in the interests of the country. Thus, the Supreme Court has laid down the general principles that have to be followed by the authorities while passing the order of detention and it has been made clear that the liberty of a citizen cannot be compromised by half-baked orders which may be passed by the authorities without paying due care and attention. The essential point emerging from the above decision is that the concept of the right of individual liberty should be balanced carefully as against the interests of the country while passing the order of detention. The authorities must express in a clear and forthright manner the necessity of detaining a person to prevent him from becoming a menace to the society or to the country at large. Similarly, the learned Counsel for the petitioners also relied on a decision reported in Kishori Mohan v. State of W.B., , wherein it was held that the provisions of Section 3 of the Maintenance of Internal Security Act must be strictly construed and the power must be exercised with extreme care. The Supreme Court held that a reading of the order shows that the Magistrate was not certain whether the activities of the detenu endangered public order or security of the State and that he merely reproduced mechanically the language of Section 3(1)(a)(ii) of the Maintenance of Internal Security Act. In other words, the Magistrate who made the order had not been able to make up his mind whether the detenu was to be detained for the maintenance of public order of security of the State. Moreover, the incident involved on the basis of which the detenu was sought to be detained was an assault by the detenu on another person. The Supreme Court held that a stray incident of this nature can neither put the public order in jeopardy nor can it imperil the security of the State. The ratio decidendi of the above two Supreme Court judgments are clear that the orders have to be passed only after due care and caution keeping in view the pros and cons of the situation and further more that the orders must reveal that the detaining authority has come to a conclusion by way of its own subjective satisfaction that it is necessary to detain a person on cogent and valid grounds. We are unable to see how the decisions of the Supreme Court, referred to supra, have a bearing on the facts of the cases before us. The situation in the cases on hand is entirely different where the detenus have been caught red-handed while indulging in the nefarious activity of dealing in smuggled gold and foreign currency. A reading of the order of detention as well as the grounds of detention clearly covey that the detenus are being detained under section 3(1)(iii) of the COFEPOSA Act for indulging in transporting or concealing or keeping the smuggled goods or carrying on the composite activity of transporting, concealing and keeping the smuggled goods which makes them liable to be detained under the provisions of the COFEPOSA Act. The learned Counsel for the petitioners also relied on the observation of the Supreme Court in Nand Lal v. State of Punjab, and tried to stress the point that the history of personal liberty history of observance of procedural safeguards. There cannot be any manner of doubt that the liberty of an individual has to be safeguarded in terms of the constitutional guarantees given to the citizens. It is also equally true that the procedural rules play a vital part in safeguarding the liberty of the individual in our country but whether there have been procedural lapses resulting in the infringement of the right of liberty of an individual will have to be judged in the facts and circumstances of each case and it will have to be seen whether short-circuiting of the procedural aspects of the matter has resulted in the negation of the substantive aspect of the freedom and liberty guaranteed to a citizen of India.
10. The learned Counsel for the petitioners has also relied upon a decision of the Supreme Court reported in Mahesh Kumar Chauhan v. Union of India, . In this case the detention order was passed under section 3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It so happened that the representation made by the detenu was forwarded to the concerned Sponsoring Authority on 25-8-1989 and the comments from Sponsoring Authority were received by the Department on 11-9-1989. It seems that there was absolutely no explanation as to why such delay had occurred. The Supreme Court, relying upon the principle laid down in Ramma Dhondu Borade v. V. K. Sraf, Commissioner of Police, , held that the undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering the detention order invalid. We are of the view that this case affords no assistanace to the case of the petitioners before us. The whole situation in this decision of the Supreme Court, referred to supra, turns around the concept of inordinate delay in sending the remarks of the Sponsoring Authority which had resulted in the negation of the rights of the detenu under Art. 22(5) of the Constitution of India.
11. The learned Advocate-General has invited our attention to a decision of the Supreme Court reported in Godavari v. State of Maharashtra , in which the Supreme Court held that the order of detention passed under Rule 30 of the Defence of India Rules should be read as a whole to see whether there is enough justification in ordering preventive detention of the detenu under the said Rules. The order of detention cannot be read piecemeal and must be read in full to see whether it conveys of the detenu the reason for which he is being detained to safeguard the interests of the society or the country at large. In our opinion too much of legal quibbling in interpreting the order of detention cannot be allowed for the simple reason that when the language employed in the order is clear and forthright and reveals the mind of the authorities as to why the person is being detained, it cannot be said that such an order is bad in law for its lack of strict adherence to English grammar. In Kamarunnissa v. Union of India, , the Supreme Court held that a particular expression used in the grounds of detention with regard to the question of the grant of bail to the detenu does not invalidate the order of detention. The Supreme Court took into consideration the background in which the expression 'bailable' was used and came to the conclusion that the use of the said expression does not indicate non-application of mind by the detaining authority. The principle emerging from this case is clear that certain expressions used in the orders of detention are to be viewed in the context of the whole order which has been passed against the detenu and in certain cases it may be necessary to take into consideration the circumstances and the background in which such an order has been made. It would be too much to suggest that the courts should close their eyes to the circumstances which have lead to the passing of the order of detention and should read the order only in print as it has been passed by the authorities to detect any loopholes on the basis of which the order could be struck down. We are, therefore, of the view that there is no substance in the contention of the learned Counsel for the petitioners that the order of detention has been passed without any application of mind by the detaining authority and is not in terms of S. 3(1)(iii) of the COFEPOSA Act. Consequently we are of the view that no right of representation, vested in the detenus, has been affected by the order passed against them and it is perfectly open for them to make such representation to the authorities as they are entitled to do in accordance with law.
12. The second contention raised by the learned counsel for the petitioners is that the order of detention and grounds of detention are at variance with each other which shows that the authorities have not applied their mind before passing the same. For this purpose it may be necessary to refer to the material portion of the order of detention which reads that whereas the authorities are satisfied with respect to the person named therein that it is necessary to prevent him effectively from engaging in transporting or keeping or concealing of smuggled goods, he will have to be detained under a detention order passed by the authorities. It is noteworthy that in the order of detention it is stated that it is necessary to prevent the detenu from engaging in transporting or concealing or keeping of the smuggled goods. In para 19 of the grounds of detention it is mentioned that on a careful consideration of the foregoing material the authorities are convinced that the detenu has been engaging in clandestine keeping, concealing and transporting of contraband gold and also sale proceeds thereof in foreign currency. It is, therefore, evident that in the order of detention as well as in the ground of detention it is mentioned that there is reason to believe that the detenu is engaged in transporting or concealing of keeping of smuggled goods. All the three elements of transporting, concealing and transporting of the smuggled goods is a common factor occurring in the order of detention as well as the grounds of detention. The only argument which has been advanced on this basis is that the disjunctive 'OR' used in the order of detention has not been used in the grounds of detention as stated above. We do not think that the use of the disjunctive 'OR' in the order of detention makes any material difference or is at variance with the language employed in the grounds of detention. In fact, the same sense is conveyed in both the order of detention and the grounds of detention and the grounds of detention that the detenu is engaged in the act of transporting or concealing or keeping of smuggled goods. This obviously means that a person can indulge in these activities either by way of keeping or concealing or transporting the smuggled goods or he can also indulge in the composite activity which involves all the three elements or transporting, concealing and keeping of the smuggled goods. We do not, therefore, find any substance in the contention of the learned counsel that the order of detention is at variance with the grounds of detention. It may be mentioned that the learned counsel. Mr. B. Kumar has relied upon two unreported judgments of this Court in W.P. No. 4590 of 1989 dated 18-8-89 and W.P. No. 12795 of 1990 dt. 14-11-1990. In W.P. No. 4590 of 1989 dt. 18-8-1989 a Division Bench of this Court held that there was non-application of mind when the detaining authority had issued the order or detention alleging that the detenu is indulging in all the three elements of transporting, concealing and keeping the smuggled goods. However, in the grounds of detention the detaining authority referred only to the necessity of preventing the detenu from engaging in illegal transportation of smuggled goods. That means that the other elements of keeping and concealing of the smuggled goods were not mentioned in the grounds of detention. It was therefore, held that it was necessary for the detaining authority when he is giving three points as basis for detaining a person to record the same in the grounds of detention as well. In the cases before us there is no such omission made in the grounds of detention and therefore the judgment in W.P. No. 4590 of 1989 can be distinguished on the grounds stated above. Similarly, in another judgment in W.P. No. 12795 of 1990 dt. 14-11-1990 a Division Bench of this Court held that the impugned order of detention was passed with a view to prevent the detenu from engaging in keeping, concealing and transporting the smuggled goods. In para 11 of the grounds of detention served on the detenu it was stated that it was necessary to detain the detenu to prevent him from abetting the smuggling of goods and engaging in keeping, concealing and transporting smuggled goods. It may be thus noted that while the impugned order of detention was passed under S. 3(1)(iii) of the COFEPOSA Act it was sought to be supported by invoking Cl. (ii) of sub-sec. (1) of S. 3. In that view of the matter the Division Bench held that there was a material difference in the grounds of detention and the order of detention passed in that case which left the detenu in a quandary about the precise case that he had to meet before the Advisory Board. The above facts of the two cases clearly put the same in a different category altogether which cannot be relied upon for the purpose of the contention advanced in these cases. We, therefore, reject the second contention raised by the learned counsel for the petitioners for the obvious reasons which we have stated above.
13. The third contention raised by the learned counsel for the petitioners is that the procedure adopted by the State Government and the Advisory Board to unfair and violative of the rules of natural justice and the provisions of Art. 21 of the Constitution of India. In this connection it may not be out of place to reproduce Art. 21 of the Constitution of India which is in the following terms :
"21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law."
It may be seen that the fundamental right of protection of life and personal liberty, guaranteed under the constitution is available to any person, be he a citizen or a foreigner who finds himself on the soil of India. Great importance has been attached to the protection of life and personal liberty of an individual of which he can be deprived only according to procedure established by law. If the person concerned has been deprived of his life and personal liberty contrary to the procedure which has been laid down for the preservation of the same it would naturally result in infringement of the provisions of Art. 21 of the Constitution. The argument thus advanced by the learned counsel for the petitioners in this regard is embeded in the provisions of Art. 21 of the Constitution. It will have to be seen whether in this case there has been any short-circuiting of the procedure adopted by the authorities resulting in the deprivation of the preventive detention of the detenu in these matters. For this purpose it would be necessary to see the sequence of events as they emerge from the facts of the case. The intimation of the Advisory Board's meeting was given to the detenus on 21-6-1991. The detenus made a request on 22-6-91 for two things viz., (1) an interview with the lawyer for helping them to prepare the defence before the Advisory Board and (2) the assistance of their friends. The representation which was given on 22-6-1991 was transmitted and it reached the detaining authority only on 25-6-1991 by which time the Advisory Board's meeting was over. This is supposed to have resulted in the failure to comply with the request of the detenus for effective representation before the Advisory Board. However, the matter will have to be viewed in the light of several other factors which cannot be ignored for the purpose of decision in this batch of writ petitions. It may be noticed that in the grounds of detention the detenus were specially informed that they had a right to make representation and also had a right to be assisted before the Advisory Board by a friend. The detention for all the detenus commenced in the last week of April, 1991 or sometime during the first week of May. The question which arises for consideration is that why the detenus kept quiet for such a long time and made a request only on 22-6-1991 for an interview with their lawyer and assistance of their friends in the matter. They had ample time to consult these people in advance if they wanted to do so. In fact, Hanif Mohd. met his lawyer on 14-6-1991. The cases of Hanif Noor Mohane and Sushil Kumar Soni were referred to the Advisory Board on 30-5-1991 and this fact was intimated to the detenus through the jail authorities. The jail authorities informed the detenus and asked them if they would consent to appear before the Advisory Board. Both the detenus gave their consent on 1-6-91 in writing indicating that they would appear in person before the Advisory Board. The cases of the remaining five detenus were referred to the Advisory Board on 31-5-91 and information to this effect was communicated to the detenus. These detenus also informed in writing on 3-6-1991 expressing their willingness to appear in person before the Advisory Board. None of them made any request for legal assistance or assistance of a friend in the letters forwarded by them. There are certain other factors emerging from a perusal of the record which also deserve consideration. Hanif Noor Mohammed applied to the Government on 21-5-1991 for permission to have an interview with his counsel for the purpose of preparing his defence before the Advisory Board. The Government gave permission vide Memo dt. 30-5-1991. On the basis of the permission so granted, an advocate met Hanif Noor Mohammed on 14-6-1991 and had an interview with him for about 40 minutes. Subsequently the other detenus also applied for and obtained permission from the Government to meet their lawyers. The following table will show the dates of applications made by the various detenus and the permission granted to them by the Govt.
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S. Name of the Detenu Date of Permission granted vide Memo No. Application No. and Date.
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1. Nayeem 1-7-91 Memo No. 662/Gen. A/91-5-dt. 9-7-91.
2. Rajkumar Madan 1-7-91 Memo No. 665/Gen. A/91-8-dt. 9-7-91.
3. Nikunj Sharma 1-7-91 Memo No. 666/Gen. A/91-8-dt. 9-7-91.
4. Shushilkumar Soni 1-7-91 Memo No. 661/Gen. A/91-3-dt. 9-7-91.
5. Mohd. Zaffar 1-7-91 Memo No. 663/Gen. A/91-4-dt. 9-7-91.
6. Champalal 1-7-91 Memo No. 664/Gen. A/91-4-dt. 9-7-91.
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The lawyer did not meet any other detenus except Hanif Noor Mohammed who was obviously in a position to discuss on behalf of the other detenus as he happened to be the only person who is fairly well educated among them. The Chairman of the Advisory Board addressed a letter on 11-6-1991 fixing the date of Advisory Board's meeting of three of the detenus on 24-6-1991 and the remaining four on 25-6-1991. This letter was received by the Government on 13-6-1991 and the Government communicated the same to the detenus by a letter dt. 18-6-1991 through the jail authorities. The jail authorities received the said information on 19-6-1991 at 12.20 p.m. and conveyed the same to the detenus on 21-6-1991. All the detenus submitted representations addressed to the Chief Secretary requesting for assistance by a relative before the Advisory Board and consultation with a lawyer. These representations were forwarded to the Government on 24-6-1991 as 23-6-1991 happened to be Sunday. The representations were received in the Department on 25-6-1991, and by then the Advisory Board's meeting was over. It is thus clear that the detenus, in spite of the advice notice given to them in this regard in the grounds of detention and after expressing their willingness to appear in person through their letters dt. 1-6-92 and 3-6-91 referred to above filed their representations only on 22-6-1991. It is worthy of consideration that why an application was filed only on 22-6-1991 and not earlier when they had all the time to make a request to the authorities. Moreover, no request was made by any other detenus before the Advisory Board seeking time for consulting a lawyer or friend's services. The Advisory Board gave a full hearing to the detenus. In this view of the matter it cannot be said that the detenus have been deprived of their right to make a representation before the Advisory Board which renders their detention illegal. Though these contentions have been raised in the additional affidavit filed on behalf of the petitioners, we have considered them in depth as they relate to the question of procedure which is bound to be followed by the authorities. The learned counsel for the petitioners has placed strong reliance on the decision reported in A. K. Roy v. Union of India, and contended that there is an inherent right of the detenus to be represented by a legal practitioner before the Advisory Board. Even in A. K. Roy's case the Supreme Court held that according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. It was further observed by the Supreme Court in that case that to read the right of legal representation in Art. 22(5) is straining the language of that article. Clause (5) confers upon the detenus the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be affective but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board. Moreover, in these cases it is patently clear that the detenus have not made the request for the assistance of a legal advisor or practitioner till the very last moment on 22-6-91 when the meeting of the Advisory Board was scheduled to be held on 25-6-1991. They were also aware of the fact that the next day i.e. 23-6-1991 happened to be Sunday and it would be difficult to arrange for a meeting well within time before the meeting of Advisory Board on 25-6-1991. The detenus cannot take advantage of their own delay in making a request to the authorities for the assistance they claimed in their applications on 22-6-1991. In any case they did not report their request before the Advisory Board also which gave them a full hearing before arriving at a decision in the matter.
14. The fourth contention of the learned counsel for the petitioners is that there has been delay in considering the representations sent on behalf of the detenus Mohammed Zaffar, Champalal, Rajkumar Madan and Hanif Noor Mohammed. We have examined the records which reveals the following facts. In the case of Champalal and Rajkumar Madan, undated representations in Hindi were received by the Government on 12-7-1991. On the same day remarks were called for the Sponsoring Authority Director of Revenue Intelligence, Madras. The Sponsoring Authority was obliged to have the representations translated from Hindi to English and prepared parawise remarks and sent the same to the Government on 20-7-1991. The remarks with translations were received by the Government on 22-7-91 and they were under examination from 22-7-91 to 1-8-91. A note was put up for orders of the Chief Secretary on 2-8-91 and final orders were passed by the Chief Secretary on 4-8-91 rejecting the representations. The decision was communicated to the detenus by memo dt. 6-8-91. In the case of Mohd. Zaffar and Hanif Noor Mohammed, the Government did not receive any representation as alleged. When copies of the representations, in Urdu and translations were filed along with additional affidavits in Court, copies of the same along with material papers were received by the Government from the Advocate-General's office on 6-9-91 and after following the due procedure they were rejected on 16-9-91. In this view of the matter we are of the opinion that there has been no undue delay in considering the representations made by the detenus.
15. In so far as the other points with regard to the question of the detenus not being allowed on 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 interviews 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 those 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 caves-dropping by the authorities. We therefore, reject this argument.
16. In so far as Mohammed Zaffar, the petitioner in W.P. No. 7875 of 1991 is concerned, the only allegation against him is that he entered the room of Hotel Maya with Mohammed Nayeem. The officers took search of both the persons and found two packets containing 24,600 US Dollars from Mohammed Nayeem. No incriminating material was recovered from Mohammed Zaffar. Apart from this incident, there is nothing on record to show his involvement in the activity which was being carried on by the other detenus. There is no evidence of Mohd. Zaffar being a party to any of the transactions about the smuggling of gold or foreign currency. When he accompanied Mohd. Nayeem, it cannot be said that he was aware of the fact that Mohd. Nayeem was carrying the foreign currency with him. It is quite possible that as a friend of Nayeem he went to Hotel Maya in Secunderabad and there he come to know of the activities of the rest of the gang. Hence, in so far as the case of Mohd. Zaffar is concerned, there is no incriminating material to show that he has been indulging in the activities of transporting or keeping or concealing of smuggled goods. Therefore, we allow W.P. No. 7875 of 1991 filed by Mohammed Zaffar and direct that he may be set at liberty forthwith if he is not required in any other case. In the circumstances, there will be no order as to costs.
17. In so far as the other detenus are concerned, the writ petitions filed by them, viz. W.P. No. 8266 of 1991 W.P. No. 8640 of 1991 W.P. 8251 of 1991 W.P. 8654 of 1991 W.P. 8235 of 1991 and W.P. No. 8662 of 1991 are dismissed. In the circumstances of the cases, there will be no order as to costs.
18. Order accordingly.