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Smt. Meena Jayendra Thakur vs The Union Of India And Others on 20 January, 1995

Bombay High Court Smt. Meena Jayendra Thakur vs The Union Of India And Others on 20 January, 1995Equivalent citations: 1995 CriLJ 2533 Author: A Agarwal Bench: A Agarwal, V Sahai

JUDGMENT

Ashok Agarwal, J.

1. The petitioner is the wife of the detenu Jayendra Vishnu Thakur alias Bhai Thakur. By the present petition, she seeks a writ of habeas corpus seeking to quash the order of detention bearing No. SPL. 3(A)/PSA 0192/17 dated 5th February, 1992 issued by Shri D. B. S. Sohal, the Secretary (Preventive Detention) to the Government of Maharashtra Home Department (Special), Mantralaya, Bombay – 400032 issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the COFEPOSA Act”). She also seeks to impugn the declaration bearing No. 9/93 of No. 675/781/92-CUS-VIII dated 15th September, 1993 issued by the Central Government, Ministry of Finance, Department of Revenue, New Delhi, under section 9(1) of the COFEPOSA Act. Lastly, she seeks to impugn the order of confirmation dated 17th November, 1993 issued by the Government of Maharashtra under section 8(f) of the COFEPOSA Act. She also seeks an order and direction for the release of the detenu.

2. The facts leading to the filing of the present petition are as follows :

On 18th September, 1991 the Customs Officers had kept surveillance for the vessels in the sea off Satpati and at about 19.00 hrs. noticed one vessel moving suspiciously towards Satpati coast. On reaching near the said vessel, signals were given by the Customs Officers, to stop the vessel. As the vessel did not stop, it was chased for some distance and finally intercepted at Satpati coast. The Custom Officers found eight persons on board the vessel. One of them identified himself as Mohammed Siddiqui, the tandel of the vessel. On enquiry he informed the name of the vessel as “AL-NADEM”. He confessed that they had a consignment of 325 silver ingots on board the vessel. He showed the Customs Officers the place of storage of the consignment of silver ingots packed in gunny bags. On further enquiry Mohammed Siddique informed that on 11th September, 1991 they had assembled at Dibba Port in Dubai along with seven other persons who were found on the board the vessel ‘AL-NADEM’. The consignment of 325 silver ingots packed in gunny bags, was then loaded in the vessel and the vessel left Dibba Port in Dubai at about 18.00 hrs. Eight persons found on the vessel were :-

1. Mohammed Siddiqui.

2. Michael Ignatious Patil.

3. Narayan Chaniya Tandel.

4. Raichand Jairam Patel.

5. Rameshbhai Chibubhai Patel.

6. Bawla Noor Mohammed.

7. Abdul Karim Juma Sangar.

During the course of investigation, the consignment of silver ingots were seized in the presence of Panchas. On the vessel AL-NADEM, the communication enquipments, i.e., Satcom Communication and V.H.F. Communication and other items were also found. The total value of the silver ingots seized is Rs. 7,96,49.547/-.

3. The statements of all the eight persons found on the vessel were recorded under section 108 of the Customs Act, on 19th September, 1991, 20th September, 1991, 21st September, 1991, 22nd September, 1991, and 4th October, 1991. The statements of these persons reveal that Michael Patil had gone to Dubai in 1988 when he came in contact with one Abid Jumma who gave him a job of Khalasi on his boat. In 1989 he (i.e. Michael Patil) was involved in smuggling of 155 Silver ingots into India by boat for which he was detained under COFEPOSA Act upto August, 1990. Later, he again went to Diwala Port Dubai in May, 1991 when he was engaged by Abid Jumma & Karim Shah (who was Dawood Ibrahim’s man). Michael Patil had met Dawood Ibrahim in his office at Dubai and he was instructed by Dawood Ibrahim to deliver 325 Silver ingots to the detenu at Arnala after contacting him over the telephone for smuggling the same on the vessel ‘AL-NADEM’ into India. While on his voyage to Arnala and Satpati bunder, he was keeping continuous contact with Dawood Ibrahim in Dubai over Satcom communication fitted in the vessel. Michael Patil had talked with Dawood Ibrahim as also with the detenu through the wireless communication fitted on the vessel. While the vessel was nearing Bombay Michael Patil contacted the detenu on the VHF set and informed him about his arrival and that he was waiting for his signal. The detenu asked Michael to proceed towards light house whereafter he would give further instructions in regard to landing and thus deliver the silver ingots to the detenu under instructions of Dawood Ibrahim. At that time they were intercepted by the Customs Officers and 325 Silver ingots were seized.

4. On 5th February, 1992 the order of detention under Section 3(1) of the COFEPOSA Act was issued by the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, and Detaining Authority. The same could not be served on him for some time as he was absconding. He came to be arrested by the Delhi Police on 23rd July, 1993 for offences under the TADA Act and under the Arms Act. While the detenu was in custody in Tihar Jail the order of detention was served upon him on 13th August, 1993. The grounds of detention which were prepared pari passu with the order of detention were also served along with the order of detention. On 15th September, 1993, the Government of India, Ministry of Finance Department of Revenue issued a declaration under Section 9(1) of the COFEPOSA Act. On 23rd September, 1991 eight accused who were arrested from the vessel ‘AL NADEM’ were remanded to the judicial custody till 7th October, 1991. While in custody and on the very day i.e. on 23rd September, 1991, all the accused made a joint retraction in respect of their confessions contained in their statements under Section 108 of the Customs Act. On 28th October, 1991, Michael Patil filed an application before the Addl. Chief Metropolitan Magistrate praying for presence of an Advocate at the time of his interrogation. On 17th November, 1993 an order confirming the detention of the detenu for a period of two years was passed. By a communication dated 17th November 1993 the detenu was informed that his representation against the order of detention was rejected by the Advisory Board.

Date : 19-1-1995.

5. The petitioner has presented the present petition on 16th May, 1994 seeking to impugn the order of detention passed under section 3(1) and the declaration issued under section 9(1) of the COFEPOSA Act.

6. Several contentions have been raised before us by Shri Karmali in support of his challenge both to the order of detention, as also to the declaration, which are impugned in the present petition. It is first contended that the satisfaction arrived at by the detaining authority in the order of detention is to the effect that it was required to be issued with a view to preventing the detenu from abetting the smuggling of goods whereas in the grounds of detention the detaining authority has arrived at the satisfaction that the detenu was “dealing in smuggled goods” and that he was to receive the smuggled goods for its disposal in India and that the detenu was actively associated with the smuggling that was being carried out by sea. It is contended that as a result the satisfaction recorded in the order of detention falls under Section 3(1)(ii) of the COFEPOSA Act, whereas the satisfaction recorded in the grounds of detention fall under Section 3(1)(iv) of the said Act. In the grounds of detention the detaining authority has nowhere stated that the detenu had abetted or was abetting the smuggling of goods and instead the detaining authority has merely stated that the detenu was associated with the smuggling, which expression is totally incoherent and nebulous and in no way it falls under the purview and ambit of Section 3(1)(ii) of the said Act, and in no way it conveys the meaning that the detenu had abetted or was abetting the smuggling of goods. As a result, the two satisfactions, one recorded in the order of detention and the other recorded in the grounds, do not coincide with each other. Consequently the impugned order of detention suffers from the vice of non-application of mind and a casual and cavalier exercise of power by the detaining authority. The detenu was as a result also disabled from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order of detention is, accordingly, violative of Article 22(5) of the Constitution and as such it is mala fide, null and void.

7. In support of his contention Shri Karmali has placed reliance on the case of Vijay Kumar Dharna alias Koka v. Union of India and others, . In the said case it was found that in the Gurmukhi version of the detention order, it was stated that the detention order had become necessary with a view to preventing him from smuggling goods and from abetting the smuggling of goods. However, in the grounds of detention, the detaining authority, had recorded his satisfaction as under :- “I am satisfied it is necessary to detain you under COFEPOSA Act, 1974 with a view to preventing you from concealing, transporting smuggled goods as well as dealing in smuggled goods.”

In this context the Supreme Court has observed thus :-

“This satisfaction (i.e. the satisfaction reflected in the grounds of detention) clearly reflects the grounds contained in clauses (iii) and (iv) of S. 3(1) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned counsel for the appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact according to him the appellant was confused whether he should represent against his detention for smuggling of goods and/or abetting the smuggling of goods or for engaging in transporting and concealing smuggled goods and/or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Art. 22(5) of the Constitution.”

8. In this context it will be useful to make a reference to the relevant portion of the grounds of detention which has made reference to the statements of the accused, who were apprehended on the vessel Al-Nadem at the time of the seizure of the contraband silver which are recorded under S. 108 of the Customs Act. It has referred to the statement dated 19th September, 1991 of Shri Michael Patil wherein he has inter alia stated that he had gone to Dubai for the first time in 1988 and later at Hamriya port at Dubai, when he came in contact with one person named Abid Jumma and got a job as khalasi in his boat; that in 1989 he was involved in the smuggling of 155 silver ingots into India by boat, in respect of which he was detained under COFEPOSA Act up to August, 1990; that later he went to Diwala Port, Dubai, again in May 1991 and was engaged by Abid Jumma and Karim Shah for smuggling silver ingots on Alnadem to Arnala; that he left Dubai by Al Nadem with 325 foreign marked silver ingots for Arnala and Satpati bunder; that he was keeping continuous contact with Dubai over Satcom Communication fitted in the vessel and that when they reached near Arnala light house, he used V.H.F. Communication equipment to give message to the detenu about their arrival and was waiting to get further instructions for landing the consignment; that at that time they were intercepted by the Customs Officers and 325 silver ingots were seized; that the seized 325 ingots belonged to Karim Shah, who was Dawood Ibrahim’s man and that after delivering the same, he was to return to Dubai to continue such kind of work. In the statement he admitted that he had done the job for one Dawood Ibrahim and that (the detenu) were to receive the silver consignment. He stated that he had talked with both Dawood and you (i.e. the detenu) on communication set fitted in the vessel.

9. As far as the detenu is concerned, the aforesaid statement shows that Michael Patil was an hireling engaged by Karim Shah and Dawood Ibrahim for the purpose of smuggling contraband silver ingots on the vessel Al Nadem. While the vessel was proceeding towards Arnala light house, he had kept constant contact with Dubai by speaking over Satcom communication equipment which was fitted on the vessel. When the vessel reached near Arnala light house he contacted the detenu on the V.H.F. Communication equipment informing the detenu of their arrival and seeking further instructions for landing the consignment. The said contraband consignment was being carried by Michael Patil for Dawood Ibrahim and Karim Shah for being delivered to the detenu.

10. The next statement which is referred in the grounds of detention is of Mohd. Siddique alias Mohammed Belai, who in his statement under S. 108 of the Customs Act, has stated that he and Michael Patil had met Dawood Ibrahim in his office at Dubai and took instructions from him and that the said Dawood Ibrahim told Michael Patil to deliver 325 silver ingots to the detenu at Arnala and to contact detenu over telephone.

11. Based on the aforesaid statements, the Detaining Authority has concluded as follows :

“It is clear from their depositions that you were to receive the consignment of 325 silver ingots which was intercepted by the Customs on 18-9-1991.”

The detaining authority has further inter alia concluded :

“It is clear from the statements of Mohd. Siddique Mohd. Belai and Maichael Patil that you (i.e. the detenu) are dealing in contraband goods on behalf of Dawood Ibrahim in India and you (i.e. detenu) were to receive the smuggled goods i.e. silver for its disposal in India. You (i.e. the detenu) are actively associated with the smuggling that is being carried out by sea.

12. Along with the grounds of detention, the detenu has been served with copies of the statements of the accused which are referred to in the grounds. The grounds have made specific reference not only to the statements of the aforesaid two witnesses which are recorded on 19th September, 1991 but also made reference to the statements of eight accused which have been recorded on 19th September, 1991, 20th September, 1991, 21st September, 1991, 22nd September, 1991 and 4th October, 1991. The copies of the aforesaid statements have been duly furnished to the detenu.

13. In the statement of Michael Patil recorded on 20th September, 1991, it has inter alia been stated :

“We were reaching near Bombay on 18-9-1991. That time on A1 Nadem I contacted Bhai Thakur (i.e. the detenu) on Code No. 14 of VRF set and informed him that I had arrived and I was waiting for his signal. I was about to take my vessel A1 Nadem towards Arnala Light House from Satpati when Customs vessel came towards us and gave us warning to stop; but we tried to escape but customs vessel came in front of our vessel and stopped our vessel Al Nadem.”

He has further gone to state :

“Dawood Ibrahim is the owner of these silver ingots. I have done the job of landing silver for Dawood Ibrahim on several occasions. Whenever the goods were to be landed at Arnala I used to remain on the vessel personally and I used to show the way from Dubai to Arnala port to the Tindel of the vessel. Before bringing these 325 silver ingots I along with Karim Shah met Dawood Ibrahim in his office at Nasar Park. Dawood Ibrahim instructed me that these ingots were to be given to Bhai Thakur (i.e. the detenu) at Arnala port ….. I did this job for Dawood Ibrahim and Bhai Thakur.”

14. We next have the statement of Mohmed Siddique, recorded on 20th September, 1991 under S. 108 of the Customs Act. He has inter alia stated “We started from Arnala on 18-9-1991. When we reached Satpati during the said period Michael made many phone calls on Satcom Every time he talked to some Bhai (detenu) on telephone. He always used to tell the location of the vessel. Many telephones came on the said vessel and every time Michael talked to some Bhai. I do not know who is that Bhai ….. When we were off Satpati Michael took out one black colour VHF transreceiver and talked to some Bhai (i.e. detenu). He told Bhai that we have reached Satpati and asked also for further instructions. Bhai in turn replied that the vehicle should proceed towards Uttam light house, where he (Bhai) will give signals …..”

15. In addition to the aforesaid statements, we have the statement of Bawala Noor Mohamed recorded on 20th September, 1991 under S. 108 of the Customs Act which inter alia states :

“Michael Patil used to talk one Bhai through Satcom communication. He also used to receive phone calls through it from one Bhai. He used to inform that ‘Bhai’ about the location of our vessel from time to time ….. We started to India from Dubai port on 12-9-1991 evening. We reached near Satpati on 18-9-1991. There Michael took out one VHP trans-receiver and we talked to one Bhai on the same that we had reached Satpati. Then the person at other end informed that we should go to Uttam light house then after receiving signal from him we should come to Arnala. After he talked to that Bhai we started towards Uttam Light House. Then we were intercepted by the Customs vessel …..”

16. The above materials in the form of statements, which have been furnished to the petitioner, form part of the grounds of detention, which have been served upon the detenu. The aforesaid statements make it clear, that the contraband silver was being smuggled at the instance of Karim Shah and Dawood Ebrahim from Dubai within the Indian territory. While the goods were being carried in the vessel Michael Patil was in constant touch with Dawood Ibrahim in Dubai as also the detenu in Bombay. As far as the detenu is concerned, he was to receive the contraband silver. While the goods were being carried in the vessel, the detenu was informed about the whereabouts of the vessel and the detenu was giving instructions to the accused for the safe landing of the contraband. The detenu was, thus, actively engaged in the smuggling of the contraband. He was also engaged in abetting the smuggling of the contraband by actively associating himself in aiding the safe landing of the vessel containing the contraband within the Indian territories. In the circumstances, we find that he has engaged himself both in abetting smuggling of goods, as has been found in the order of detention, and he has also been dealing in the contraband Smuggled goods on behalf of Dawood Ibrahim in India. He was to receive the smuggled goods i.e. silver and was actively associated with smuggling of silver that was being carried by sea as has been found in the ground of detention.

17. A similar contention, though the same had arisen in different context, was the subject matter of the decision of the Supreme Court in the case of Devji Vallabhbhai Tandel v. The Administrator of Goa, Daman and Div and another . It was contended on behalf of the detenu that Gujarati translation of the order of detention was not supplied to the detenu. The detenu does to know and cannot speak or write any language other than Gujarati. The detenu was, therefore, deprived of an opportunity of making effective representation against his detention. Thus, in the case before the Supreme Court, there was a total non supply of the Gujarati version of the order of detention. The detenu, however, was served with the translation of the grounds of the detention. As far as the English version of the order of detention was concerned, it inter alia recited “with a view to preventing him from smuggling goods, it is necessary to make the following order.” The detenu, however, was furnished the grounds of detention in Gujarati, the language which he understood which were sent along with the order of detention. In this context the Supreme Court observed : “So far as the non-supply of the Gujarati version of the Order as per Annexure ‘A’ is concerned in our opinion, there has been no violation of Art. 22(5) or any other law. The Order as per Annexure ‘A’ was a mere formal recital of S. 3(1) of the COFEPOSA, showing the provision of law under which the order of detention has been made. Although the section of the COFEPOSA has not been mentioned in the last but two paragraphs of the “grounds”, it has been stated that the detenu engaged himself “in smuggling goods and that there is sufficient cause to pass detention order against you with a view to preventing you from smuggling goods”, which was in Gujarati. It cannot, therefore, be said that the detenu was in any way handicapped in submitting his representation, or there has been any violation of Art. 22(5) of the Constitution.

18. If the ratio of the above case is applied to the instant case, it would appear that no much capital can be made out of the apparent conflict in the order of detention and the grounds of detention. The order of detention, as observed by the Supreme Court, is a mere formal recital of S. 3(1) of the COFEPOSA Act showing the provisions of law under which the order of detention has been made. It is the grounds of detention, which are relevant, for the purpose of making representation. As far as the grounds go they clearly set out that the detenu has been dealing in contraband goods on behalf of Dawood Ibrahim in India and he was to receive the smuggled goods i.e. silver for its disposal in India. The detenu is actively associated with smuggling i.e. being carried out by sea.

19. Much was made in respect of the phraseology “for its disposal in India” and “actively associated with the smuggling that is being carried out by sea”. It is contended that there is no material that the detenu was to receive the smuggled silver for its disposal in India. It is also contended that the smuggling alleged was in respect of smuggling within India and not outside India and hence the phrase “being carried out by sea” has been used in cavalier manner without proper application of mind.

20. In our view, it will not be open to read and decipher the recitals in the grounds of detention in hair splitting manner. The silver in question is in huge quantity of 325 foreign marked silver ingots weighing 11202.468 kgs. and valued at Rs. 7,96,49,547.00. If such a large quantity of silver was to be received by the detenu an inference that it was for disposal in India is wholly justified. Moreover, it is to be noted that the contraband silver was being smuggled in a vessel through sea. The vessel was to be landed with the aid and assistance of the detenu within the Indian soil and the silver was to be smuggled within the Indian territories. The smuggling operation was, being carried out by sea. In the circumstances, it cannot be held that the recitals contained in the grounds of detention are a result of non application of mind. It also cannot be held that the detenu was in any way prejudiced in the matter of making an effective representation against the grounds of detention.

21. As far as the conflict which is pointed out between the recitals in the order of detention and the grounds of detention, it has to be observed that the activities of a detenu, may sometime overlap and may encompass both activities of smuggling as also the activities of aiding and abetting smuggling.

22. In the case of Narendra Purshotam Umrao v. B. B. Gujral , it has been observed :

“There is, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under S. 3(1) of the Act. Nonetheless, the term “smuggling” as defined in S. 2(e) of the Act has the same meaning as in S. 2(39) of the Customs Act, 1962, which, when read with S. 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling of contraband goods as well as all persons dealing in such goods etc. Though the provisions of Cls. (i) and (ii) of Sub-section (1) of S. 3 of the Act may operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given to the term ‘smuggling’ in S. 2(e) of the Act, with a view to broaden the scope of preventive detention. Sub-section (1) of S. 3 of the Act provides for the different grounds of detention. Clause (i) relates to smuggling of goods. Cl. (ii) relates to abetting the smuggling of goods. Cl. (iii) relates to engaging in transporting or concealing or keeping smuggled goods. Cl. (v) relates harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and, abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention i.e. to take in all such activities which results in accomplishment of smuggling of contraband goods.” “In a case like the present, where there is a widespread nework employed by a person, it cannot be said that he is not engaged in the act of smuggling.”

23. As was the case before the Supreme Court so is the case in the present case. There is a widespread network employed by the detenu and since it cannot be said that he is not engaged in the act of smuggling or not abetting the smuggling of goods.

24. In this context a reference can usefully be made to the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala . In paragraph 62 the Supreme Court while dealing with a contention that the grounds should have been communicated to the detenu in the language understood by him the Supreme Court found on facts before it as follows : “Here the definite case of the petitioner’s father is that he does not understand English or Hindi or Malayalam and does understand only Gujarati language. The facts revealed that the detenu Venilal was constantly accompanied and was in the company of his daughter as well as son-both of them knew English very well. The father signed document in Gujarati which was written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. The document dated 30th June, 1984, contained, inter alia, a statement. “I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold.” He further asked for mercy.”

On these facts the Supreme Court observed thus :

“There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to the conduct of the detenu Venilal Mehta specially in the mercy petition and other communications, the version of the detenu Venilal is feigning lack of any knowledge of English must be judged in the proper perspective ….. That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth ….. Court is not the place where one can sell all tales ….. We are of the opinion that the detenu Venilal Mehta was merely feigning ignorance of English.”

25. If one has regard to the above observations, it would appear that as far as the detenu in the instant case is concerned, he appears to be a man having deep connections with the underworld and has been involved in smuggling. It is difficult to subscribe to the contention advanced that he was bewildered on account of the apparent contradictions appearing in the order of detention and the grounds of detention. He has been served with the grounds of detention which included all the statements and material in support of the grounds. Though only two statements are reflected in the grounds, reference has been made to all the statements and copies thereof have been duly furnished to him. Two statements that referred are by way of illustration and are not exhaustive. If regard is had to the other statements, which we have already referred, we do not find any merit in the contention that the detenu was confused and was thereby in any manner prejudiced in making an effective representation against the order of detention. In the aforesaid case i.e. Prakashchandra Mehta (supra) the Supreme Court in paragraphs 81 to 83 observed as under :-

“As the statement of objects and reasons of 1975 Amending Act state that smuggling of foreign exchange racketeering and related activities have a deleterious effect on the national economy and thereby a serious adverse effect on the security of State. The society must be protected from that social menace by immobilizing the persons by detention of the persons engaged in those operations and to disrupt the machinery established for furthering smuggling and foreign exchange manipulations (Statement of objects and reasons of 1975 Act). Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that, yet these must be looked at from a pragmatic and commonsense point of view. The exercise of the power of preventive detention must be strictly within the safeguards provided. We are governed by the Constitution and our Constitution embodies a particular philosophy of government and a way of life and that necessarily requires understanding between those who exercise powers and the people over whom or in respect of whom such power is exercised. The purpose of exercise of all such powers by the Government must be to promote common well-being and must be to subserve the common good. It is necessary to protect therefore the individual rights in so far as practicable which are not inconsistent with the security and well-being of the society. Grant of power imposes limitation on the use of the power. There are various procedural safeguards and we must construe those in proper light and from pragmatic commonsense point of view. We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of salf-preservation and protection of the country and national security may claim in certain circumstances higher priority.

As has been set out by Thomas Jefferson”. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end of the means”. Thomas Jefferson, Writings (Washington ed.) v. 542-545 and The Constitution Between Friends by Louis Fisher-47. By the aforesaid approach both justice and power can be brought together and whatever is just may be powerful and whatever may be powerful may be just.

In the background of the facts and circumstances of this case, the procedural safeguards have been complied with as far as practicable. there are no merits in the fancied grievances of the detenus …..”

26. It would thus appear that the procedural safeguards, which are provided in the matter of preventive detention, are to be construed in proper light and in a pragmatic common-sense point of view and it will be impermissible to be swayed by technical and hair-splitting contentions.

27. In the case of Suresh Yeshwant Arolkar v. B. K. Agarwal Criminal Writ Petition No. 777 of 1993 decided by our Court M. L. Pendse & M. F. Saldanha, JJ. decided on 4/5th October, 1993, the contention similar to the one raised in the present petition, was dealt with as follows :- “The first contention of the learned Counsel is that the order of detention is at variance with the subjective satisfaction recorded in the grounds of detention and therefore the order is required to be struck down. The learned counsel urged that the order of detention recites that powers to detain are exercised with a view to prevent the detenu from abetting the smuggling of goods while the subjective satisfaction recorded in the grounds of detention indicates that the Detaining Authority was satisfied that the detenu had taken active part in transporting the smuggled silver. The learned counsel urged that abetting the smuggling of goods is different from transporting the smuggled goods and therefore the grounds of detention are at variance with the order of detention. In support of the submission, reference was made to an unreported decision dated April 4, 1990 of Division Bench of this Court in criminal writ petition No. 114 of 1990 and to which one of us (Pendse, J.) was a party. The Division Bench held that S. 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 confers power to detain with a view to prevent the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from (i) smuggling goods., (ii) abetting the smuggling of goods; (iii) engaging in transporting or concealing or keeping smuggled goods; (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or (v) harbouring persons engaged in smuggled goods or in abetting the smuggling of goods. The examination of S. 3 of the Act does indicate that the acts of smuggling, abetting, concealing, dealing in are different and distinct and the subjective satisfaction to be recorded by the Detaining Authority should specifically refer to the particular act. The Division Bench further held that it is possible that in a given case there may be overlapping of the grounds and in such case the order cannot be struck down on the ground that the order of detention is at variance with the subjective satisfaction set out in the grounds of detention. In the present case, it is obvious that there is overlapping of the activities of the detenu and it attracts both abetting of smuggling of goods as well as taking active part in transporting the smuggled goods. The abetment in respect of smuggled goods takes in its sweep various acts to be performed by the detenu and one of the act is transporting smuggled goods. In our judgment, the grounds of detention sets out that the detenu was not only involved in transporting smuggled goods but has also taken active part in carrying out the operation of landing of smuggled goods and its further transport. The grounds of detention clearly recite that the detenu had accompanied Natekar and Zantye at the behest of Kalia and had taken active part in the entire operation. It is therefore futile to suggest that the activities of the detenu as set out in the grounds of detention are limited only to transport of smuggled silver. Reading the grounds together, it is obvious that the detenu was deeply involved in abetting of smuggled goods. The contention of the learned counsel that the order of detention and the grounds of detention are at variance therefore cannot be accepted. The expression “abetting of smuggled goods” is of wide import and whenever the grounds are overlapping, the complaint cannot be made that the order of detention and the grounds of detention are at variance. For these reasons, the first contention of the learned counsel must be turned down.”

28. Having regard to the aforesaid decisions and the facts of the present case, we find that the first contention raised by Shri Karmali is devoid of merit and the same deserves to be rejected.

29. The next contention which has been advanced by Shri Karmali is that the sponsoring authority having placed before the Detaining authority the Remand Application dated 23-9-1991 and the detaining authority having considered it and having furnished a copy of the same to the detenu, it was equally incumbent upon the sponsoring authority to have placed before the detaining authority the full text of the order dated 23rd September, 1991 passed by the Court thereon as it was a document of vital nature which was likely to influence the mind of the detaining authority one way or the other as to whether he should clamp down preventive detention on the detenu. In the said order, the Court had in terms recorded that all the accused had made complaints of ill-treatment against the Customs Officers which they had done at the earliest opportunity. It was further recorded therein that all the accused except accused No. 7 had stated that they were assaulted by the Customs Officers. It is submitted that instead of placing the said order before the detaining authority, the sponsoring authorities had placed before the detaining authority a cryptic note, which appears to have been appended at the foot of the Remand application by the Customs officer to the following effect : “All accused remanded to J.C. till 21-10-91. Accused No. 1 may be kept in Byculla Jail.” It is submitted that the non-placement of the said order, which was a vital document in the facts and circumstances of the case, wherein the Court had recorded that the accused had complained of ill-treatment by the Customs Officers, and which formed an integral part of the said application, amounted to placing the said application in a truncated form. The non-placement of such vital document before the detaining authority and the consequent non-consideration of the same by the detaining authority impaired the satisfaction arrived at by the detaining authority vitiating the impugned order of detention. It is further submitted that not only the said order ought to have been placed before the detaining authority and not only the same ought to have been considered by the detaining authority but also a copy of the same ought to have been furnished to the detenu along with the grounds of detention. The non-furnishing a copy of the same to the detenu disabled the detenu from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order is thus violative of Art. 22(5) of the Constitution and as such it is mala fide, null and void.

30. The petitioner has annexed at Exhibit-P a copy of the order dated 23rd September, 1991 remanding the accused in jail custody till 7th October, 1991 and has pointed out that all that the sponsoring authority has placed before the detaining authority is a cryptic order. All the accused remanded to jail custody till 7th October, 1991 by the Addl. Chief Metropolitan Magistrate, Bombay. It is the submission of Shri Karmali that the entire judgment and order of remand is an integral part of the application filed by the Customs Officer for remand. The order makes a reference to some of the accused complaining of assault at the hands of the Custom Officers. It makes a reference to a direction given by the Metropolitan Magistrate for sending those accused to the G.T. Hospital for examination, treatment and report. The said order, therefore, contains vital material which has a bearing on forming the subjective satisfaction in regard to the passing of or not to the passing of the order of detention, and this has been withheld from the detaining authority. Similarly the said material has been withheld from the detenu. This has, therefore, resulted in impairing the decision making of the detaining authority as also the right of the detenu to make an effective representation against the detention order.

31. Shri Karmali has further emphasised that the present order of detention is based on a single incident and if the non placement of this vital material has a consequence of requirement of ignoring the incident, the order of detention must fall to the ground and S. 5-A of the COFEPOSA Act will be of no assistance to save the order on the strength of the other material on record.

Hence, according to Shri Karmali, the order of detention, is liable to be set aside.

32. In support of his contention, Shri Karmali has placed reliance in the case of Union of India v. Manoharlal Narang, . In that case in the context of full text of an order not having been furnished the Supreme Court has observed :

“An order of this, Court is not an inconsequential matter. It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know, at the time the detention order was passed, that this Court had refused stay of the judgment of the Delhi High Court and that Ramlal was allowed freedom of movement subject to certain conditions. It is to be regretted that the portion extracted above from the counter affidavit (shown in bracket) betrays an attitude, to put it mildly, that lacks grace. Be it understood that the bracketed portion was made to meet a case that there existed an order of this Court which was a relevant and vital material. We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Court’s order but we desist from doing so. If the sponsoring authority and the detaining authority are to adopt such cavalier attitude towards orders of courts and of this Court in particular, their orders will meet with the same fate as the one under review.”

33. Shri Karmali, has next relied upon the case of Ayya alias Ayub v. State of U.P. wherein the Supreme Court observed thus :

So far as the third ground is concerned it is no doubt a serious charge. The victim is the same Anil Gautham. The Sessions Court has since enlarged the petitioner on bail. It is alleged that the attack, in the manner in which it was made, spread tremors of fear in the neighbourhood and the shop-keepers in the vicinity pulled down their shutters.

On the contrary, petitioner avers that he had been taken into custody earlier at 8-00 p.m. and his alleged presence at the scene of occurrence, which admittedly took place at 9-10 p.m. was wholly imaginary and concocted. The police version is that the arrest was made only at 10-00 p.m. the next day. These matters are to be decided at the sessions-trial. We cannot decide them here. It is not also necessary to go into the controversy about the wireless message or the genuineness of the “Log-book” recording the message. The Inspector General of Police Meerut Zone and the Home Secretary have stated in their affidavits that the extant practice is to keep the “Log-Book” in the form of loose sheets stapled together. The practice might perhaps require improvement, but it is not necessary to be that the sheets produced are not genuine. Learned Sessions Judge, at the time of grant of bail did not, however, accept them as the original “Log-book”.

It is equally unnecessary to decide whether the telegram despatched by Mirazuddin was at 12-30 mid-night on 18-2-88 or as suggested by the Respondents at 12-30 noon on 19-2-88. It is extremely probable that it was sent not at 12-30 midnight as claimed by the petitioner but only at 12-30 noon on 19-2-88 as suggested by Sri Yogeshwar Prasad. But it cannot be disputed that such a telegram was sent. The telegram asserts for whatever it was worth that petitioner was taken into custody at 8-00 p.m. on 18-2-1988. The contention of Shri Garg is that the non consideration of the telegram, which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention for non-application of mind. The detaining authority in its affidavit says : “………. Deponent is not in a position to say about the facts of the telegram. It might have been given in Pash-bandi.”

What weight the contents and assertions in the telegram should carry is an altogether different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non application of mind if a piece of evidence, which was relevant though not binding had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiate the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality.”

34. Shri Karmali next relied upon the case of “State of U.P. v. Kamal Kishore Saini, , wherein the Supreme Court observed as follows :-

“Similarly, with regard to ground No. 3, the application of the accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon were not produced before the detaining authority before passing of the detention order. The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this court in the case of Asha Devi v. K. Shivraj and Gurdip Singh v. Union of India, .”

35. Further reliance is placed in the case of Kurjibhai Dhanjibhai Patel v. State of Gujarat reported in 1985 (1) SCALE wherein it is observed thus :

“In the first place the question is not whether the material which has been withheld from the detaining authority formed part of any separate or independent proceedings like adjudication proceedings or not but the real question is whether the material is relevant and would have influenced the mind of the detaining authority or not; in whatever proceedings it might have come to be recorded. The reply to the show cause notice cannot be said to be irrelevant material; on the other hand the reply in the instant case which contained a retraction of his earlier statements recorded under S. 108 was most relevant and would have influenced the mind of the detaining authority in one way or the other and as such it ought to have been placed before the detaining authority. As regards the second reason mentioned by the High Court we feel that the observations on which reliance has been placed must be confined to the facts of that case and the Court in that case merely with the show cause notice that had been, issued by the Customs authorities and served on the detenu and there was no question of any reply of the detenu being considered to be irrelevant. In the instant case not merely the show cause notice but the reply of the detenu to the show cause notice which was certainly most relevant material ought to have been placed before the detaining authority. The observations relied upon by the Gujarat High Court would be of no avail to the respondents in the instant case. The position in law in this behalf is well settled by two decisions of this Court, one in Asha Devi’s case and the other in Mohd. Shakeel Wahid Ahmed v. State of Maharashtra. In the circumstances we are clearly of the view that the subjective satisfaction of the detaining authority must be regarded as having been vitiated in view of the fact that the relevant material was not placed before it by the sponsoring authority.”

36. Reference is also made to the Supreme Court case of Smt. Jayadevi Shantilal Jain v. Union of India in Criminal Appeal No. 115 of 1986 arising out of S.L.P. (Crl.) No. 3117 of 1985 decided by Shri V. D. Tulzapurkar, J. on 5th February, 1986 wherein it is observed as follows :- “Admittedly what was forwarded on 17th May, 1985 by the Advisory Board to the confirming authority was merely its report but the entire proceeding which contained the representation dated 7th May, 1985 made by the detenu (and which representation had referred to the retraction of a statement by the detenu) was not placed before the confirming authority. In view of this admitted position it is clear that all the requisite relevant material which ought to have been considered by the confirming authority before confirming the detention was not before the confirming authority. Muchless could it be said that the same was considered by it and therefore the consequent confirmation done on 27th May 1983 would get vitiated and be of no avail to the respondents. In these circumstances the ratio of the decision of this Court in Nand Lal Bajaj v. State of Punjab , will be attracted and the detention will have to be regarded as illegal.”

37. Further reference is made to the case of Vashisht Narain Karwaria v. Union of India wherein it is observed as follows :-

“The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these averments are not made mention of in the grounds of detention. But can it be said that these materials placed before the authority might not have influenced the mind of the detaining authority in taking the decision detaining the detenu ? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take decision of directing the detention of the detenu. As rightly pointed out by Mr. Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order. There are several pronouncements of this Court, on this point, of which we will make mention of to the following decisions, Ram Krishna Paul v. The Government of West Bengal ; Smt. Pushpa v. Union of India Merugu Satyanarayana v. State of A.P. . Mehboob Khan Nawab Khan Patan v. Police Commissioner, Ahmedabad .

38. Further reference is made to the case of Prabhu Dayal Deorah etc. v. District Magistrate, Kamrup, wherein it is observed :

“The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against the wanton assaults on personal liberty over the years. Under our Constitution the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be the impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that procedure is rigorously observed, however, strange this might sound to some ears”.

39. Further reference is made to the case of Iechu Devi Choraria v. Union of India , wherein the Supreme Court observed as follows :-

“We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler. We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillers of free democratic society. Men have rightly laid down their lives at its alter in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. This Court has also through its judicial pronouncements created various legal bulworks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the Courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.”

40. Shri Karmali has cited several other decisions. We, however, do not propose to multiply the decisions and refer to all of them. As to whether a particular material which is not furnished is a vital material and is relevant for arriving at a subjective satisfaction would depend upon facts of each individual case and no hard and fast rule can be laid down. There can be no straight jacket formula which can be applied to cases one and all. Just as in several cases orders of detention have been set aside on the ground of non supply of material documents, there are several decisions which have taken a contrary view and orders of detention have been upheld, holding that documents not supplied are not vital or material documents.

41. In the case of “Apinos Victor v. A. K. Batabyal” of our Court (Criminal Writ Petition No. 372 of 1990) decided by S. P. Kurdukar and R. G. Sindhkar, JJ. dated 22nd June, 1990 it has been observed :-

“The first contention raised by Miss Mane is contained in paragraph 5(1) of the writ petition. In substance the contention is that the Sponsoring Authority ought to have placed before the detaining authority the copy of the order passed by the learned Magistrate on 7-2-1989 on the remand application. Counsel urged that the Sponsoring Authority placed the remand application before the detaining authority but failed and neglected to produce the copy of the order before the detaining authority, when the subjective satisfaction was arrived at. For want of placement of the order passed by the Magistrate on 7-2-1989 the subjective satisfaction is vitiated and on this ground the detention order must fail.

In reply to this contention the detaining authority in its return has admitted that the copy of the order dated 7-2-1989 was not placed before it. The detaining authority has however averred that it was made aware of the fact that the detenu was remanded to judicial custody till 21-2-1989 on the remand application made by the customs department on 7-2-1989. The detaining authority further stated that the order dated 7-2-1989 made by the Magistrate on the remand application was not a vital document and, therefore, non placement of the same had not vitiated his subjective satisfaction. The detaining authority further stated that non-placement of the copy of the order dated 7-9-1989 before him will not amount to with-holding the important document/material and will not vatiate the order of detention.

On these rival pleadings and on the facts of the present case we are called upon to consider two aspects first, whether order dated 7-2-1989 was a vital document having any bearing on the subjective satisfaction of the detaining authority one way or the other and whether the detaining authority was aware on the basis of some material placed before it that the detenu was remanded to the judicial custody till 21-2-1989. No absolute rule can be laid down that every order made on such remand application is a vital material/document. Contents of the document is a decisive factor. In our opinion having regard to the contents of the order dated 7-2-1989 and bearing in mind the facts and circumstances of the present case the said order cannot be a vital document for the following reasons :

The incident in question took place on 4-2-1989. The detenu was arrested on 6-2-1989 and was produced before the Magistrate with remand application on 7-2-1989. It is, therefore clear that on the very following day of the detenu’s arrest he was produced before the Court. The contraband involved in the present case was valued at Rs. 2,60,13,410.70 p. The detenu and other two co-crew members are not the Indian National but foreigners and the investigation at the stage was in progress. In the light of these circumstances we have to consider the order dated 7-2-1989 on the remand application.

Mr. Patwardhan, learned Counsel appearing for the detaining authority fairly stated that the order passed by the Magistrate on 7-2-1989 was not produced before the detaining authority but the important gist of the order was noted down on the remand application and the remand application on which the said noting was made was produced before the detaining authority. We may now advert to the order made by the county on 7-2-1989 as also to the noting of that order in short made by the Sponsoring Authority. The full text of the order has been reproduced by the petitioner at page 5 and which reads as under, “Accused are produced at 3-45 p.m. They are all remanded to judicial custody till 21st February 1989. They complained of assault by the officers. Their complaint is separately recorded. They be sent to jail doctor for medical examination and treatment, if any. No bail at this stage. The remand application dated 7-2-1989 on which the gist of the order was noted down was furnished to the detenu and the said document is at page 52 (see Exh. C to this Writ Petition and list of documents.) Although the detenu has not filed the compilation of the documents, but however, during the course of hearing Miss Mane learned counsel for the petitioner was fair enough to produce before us the copies of the original documents served on the detenu. The order dated 7-2-1989 reproduced on the remand application dated 7-8-1989 reads as under :-

“Remanded to judicial custody upto 21-2-1989.

Sd./-. 7-2-1989.”

As stated earlier there is no dispute that the original order dated 7-2-1989 was not placed before the detaining authority but the gist as indicated above was placed before the detaining authority. The question therefore is whether the order made on the first date of remand application was a vital document and non placement of the same has vitiated the subjective satisfaction of the detaining authority. As far as the custody of the detenu is concerned even the gist which was incorporated on the remand application by the Sponsoring Authority unmistakably narrates the complete text in that behalf i.e. “remanded to judicial custody upto 21-2-1989”. That is the very essence of the first part of the order made by the Court on 7-2-1989 i.e. “accused are produced at 3-45 p.m. They are all remanded to judicial custody till 21st February 1989.” The said order further recites, “No bail at this stage.. Obviously on the first date of remand in a case where a contraband of Rs. two crores and odd was involved and in particular when the detenu and the other co-crew members were foreigners and when no bail was prayed for by the detenu, non placement of order dated 7-2-1989 would not vitiate the subjective satisfaction of the detaining authority in the facts of present case. In fact the detaining authority was made aware of this vital information that the detenu has been remanded to judicial custody till 21-2-1989. The awareness on the part of the detaining authority of the fact that the detenu had been in judicial custody is also reflected in the grounds of detention. Not only this but the detaining authority has shown further awareness, “However, nothing prevents you from applying for bail and getting released.” Bearing in mind the facts and circumstances of the present case we are of the opinion that vital information and material in that behalf was brought to the notice of the detaining authority by the sponsoring authority and therefore non placement of order dated 7-2-1989 in our opinion would not vitiate the subjective satisfaction of the detaining authority. We say so because the order dated 7-2-1989 passed by the Court in this particular case was not a vital document.

Miss. Mane, however, drew our attention to an unreported decision dated 4th August, 1989 rendered by the Division Bench of this Court in Criminal Writ Petition No. 531 of 1989, to which one of us (Kurdukar, J.) was a party. The facts of that case were that the sponsoring authority instead of placing copy of the bail order before the detaining authority produced a bail certificate which was prepared by way of internal document by the sponsoring department. Distinguishing feature of that document was that the bail certificate did not contain the conditions imposed by the Court while granting bail to the accused. Consequently the bail certificate that was produced before the detaining authority by the sponsoring authority was without the conditions imposed by the Court. These conditions, the Division Bench opined were vital and material conditions and since these vital conditions which form the part of the bail order were not placed before the detaining authority. Non placement of such a vital document was held to have vitiated the detention order. The said decision in our opinion, is clearly distinguishable on facts and no absolute rule has been laid down in the said decision. In our opinion, having regard to the facts and circumstances of the present case it cannot be said that the order on the remand application dated 7-2-1989 was a vital document and that non placement of the same has vitiated the subjective satisfaction of the detaining authority.

42. In the case of Smt. Aisha B. M. Ibrahim v. The Union of India (Criminal Writ Petition No. 266 of 1993) decided by M. L. Pendse and M. F. Saldanha, JJ. this Court observed thus :

“The second contention urged by Shri Karmali is that a relevant and vital document was not placed before the detaining authority and, therefore, the order of detention is required to be quashed. Shri Karmali submitted that the detenu was arrested on August 13, 1992 and was produced before Additional Chief Metropolitan Magistrate. The detenu filed bail application on being produced, but Additional Chief Metropolitan Magistrate rejected the application and remanded the detenu to jail custody till August 19, 1992. Shri Karmali submitted that the order passed by Additional Chief Metropolitan Magistrate was placed before the detaining authority. It was urged that on August 19, 1992 when the detenu filed a second application for being released on bail, the Magistrate passed an order directing the release of the detenu on bail of Rs. 50,000/- with one surety or cash bail of Rs. 50,000/- on condition that the detenu shall attend the Enforcement office from 11-00 a.m. to 2-00 p.m. from the date of release on bail. Learned Counsel urged that a copy of the application was not supplied to the detaining authority and failure to do so has vitiated the conclusion reached by the detaining authority. Shri Karmali submitted that the application for grant of bail was vital and crucial document and the order passed thereon for determining the question as to whether it is necessary to exercise the power of detention, preventing detenu from indulging in activities in future. It is not in dispute that the operative part of the bail order issued by the Magistrate was placed before the detaining authority and the grievance is only in respect of the copy of the bail application not being placed. Shri Agrawal submitted that the grievance made by Shri Karmali has no merit because the copy of the bail application has never supplied to the Enforcement Officer. Shri Karmali could not counter the submission by asserting that the copy of the application was ever given to the Enforcement Officer. In the absence of copy being furnished, it is difficult to imagine how the Enforcement Officer could have placed the copy of the bail application before the detaining authority. Shri Karmali urged that even though the copy was not supplied to the enforcement officer, it was the bounden duty of the Enforcement Officer to search for the copy and to secure the same from the Court Officers and to produce the same before the detaining authority. It is impossible to accept the submission. In the first instance, it was the duty of the detenu and his legal advisor to supply the copy of the bail application to the Enforcement Officer and obtain acknowledgment of the same. It seems that bail applications are directly moved before the Magistrates and, on many occasions, the Enforcement Officers are not represented by Counsel. It is a wrong practice to apply for relief from a Magistrate without furnishing a copy to the other side. Apart from this consideration, we are unable to appreciate how the copy of the bail application is a vital or relevant document and the failure to produce the same before the detaining authority can vitiate the conclusion of the detaining authority. The detaining authority was conscious of the fact of the grant of order by the Magistrate releasing the detenu on bail and it is wholly immaterial on the facts and circumstances of the case as to what were the contents of the bail application. In our judgment, the second contention of learned counsel, therefore, deserves to be repelled.”

43. We have given our anxious consideration to the contentions raised. We have also kept in mind the decisions which have been relied upon by the contending parties. In the instant case we find that the entire text of the order of remand which has remainded to be placed before the Detaining Authority does make a reference to an assault on some of the accused. The order directs that the accused be referred to hospital for examination, treatment and for submission of medical reports. We, however, find on the facts of the present case that the same is not a vital material for arriving at the subjective satisfaction – whether or not to pass an order of detention. Then material at best suggests that the confessional statements recorded under S. 108 of the Customs Act have been extracted from the accused after using third degree methods. We have noted that statements of the accused in the instant case have been recorded on 19th September, 1991, 20th September, 1991, 21st September, 1991, 22nd September, 1991 and 4th October, 1991. Grievance in the present case is in reference to the non-placement of an order of remand passed on 23rd September, 1991. The order is styled as a vital document as it refers to ill-treatment of accused for extracting confessional statements under S. 108 of the Customs Act. In this context it is pertinent to note that the statements of 4th October, 1991 do not make any complaint in regard to assault by the Customs Officers. It does not make any grievance that the confessional statements have been extracted after the use of third degree methods. On the contrary, the statements recite that the earlier statements have been made voluntarily and further reiterates and reaffirms the statement made earlier. Hence, even if the earlier statements recorded prior to 4th October, 1991 are ignored on the ground that they have been procured after use of 3rd degree methods, the statement recorded on 4th October, 1991 remains unaffected and that statement reiterates the facts earlier stated. Order of remand makes reference to injures alleged to have been sustained by certain accused which have been placed on record. As far as the accused Mohamed Syddique is concerned, he has stated that he was not assaulted. However, his medical certificate gives the following findings :-

“23-9-1993 Paining Chest AL

ELG 9256 Temp. 37 degree ——- 23-9-91 Puls 98 B.P. 120/80

H/o Assault on 20-9-91 at 10 p.m. Complaint of water discharge from Lt. ear No sign of head injury.

Ref. ENT/Med OPD Tomorrow.”

44. As far the accused Michael Patel is concerned, the order of remand recites that he had stated that he was assaulted by two officers with hand blows on his right hand shoulder. However, his medical certificate gives the following findings :-

“H/O assault 20-9-91 at 10.00 p.m. & U.C.F. T.P.R.

U/E Minimal tenderness on right shoulder & Lower back Range of Movements (N) No sign/No other injuries seen.”

45. As far as Abdul Karim is concerned, he does not claim to have been assaulted. However, his medical certificate recites :-

“M/O assault 21-9-91 at 10 p.m. UCF TPR at the rate Pt C. O/E Minimal tenderness on right leg Moreover at right shoulder No sign/No other injury.”

We therefore find that the material in respect of the alleged use of third degree methods, which finds place, in the order of remand and the medical certificates is discrepant and does not inspire confidence and hence no relevance can be attached to the said piece of evidence.

46. In the circumstances, we hold that the aforesaid material in the form of the entire text of the order of remand is not a vital or material piece of evidence and hence non-placement of the above material will not vitiate the order of detention.

47. The third point, which has been submitted by Shri Karmali, also relates to non-placement of a material document before the Detaining Authority. It is pointed out that eight accused were produced before the Court on 23rd September, 1991. They in the presence of the Customs Officer Shri D. Shanmugam had filed a joint retraction application before the Court wherein they had in terms retracted their alleged confessional statements. On the said retraction application an order was passed by the Court taking the same on record. The petitioner has annexed a copy of the retraction application, which is Annexure G to the petition. According to Shri Karmali, the said document being a document of vital nature, it was incumbent upon the Sponsoring Authority to have placed before the detaining Authority a copy of the said document and it was equally incumbent upon the detaining authority not only to have considered the same before arriving at the subjective satisfaction but also to have furnished a copy of the same to the detenu along with the grounds. The non placement of the said vital document before the detaining authority and the consequent non-consideration of the same by the detaining authority impaired the satisfaction arrived at by the detaining authority vitiating the impugned order of detention and the non-furnishing a copy of the same to the detenu disabled the detenu from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order is, thus, violative of Art. 22(5) of the Constitution and as such it is mala fide, null and void.

48. As far as the present submission is concerned, it is pointed out on behalf of the detaining authority that the sponsoring authorities had indicated that the joint retraction application was not served on the Customs Department. They were, therefore, unaware of the filing of the said application. In the circumstances, it could not be placed before the detaining authority. Since the said document was not placed before the detaining authority, there was no question of supplying copy thereof to the detenu. Hence, there is no violation of Art. 22(5) of the Constitution of India as is sought to be contended.

49. We have perused the copy of the retraction statement and we find that the same does not contain any endorsement in regard to its service on the customs officials.

50. In view of the materials which is on record, we are constrained to hold that the aforesaid joint retraction application was not served on the Customs Prosecutors or the Custom Officers. Hence, there can be no question of the same being placed before the detaining authority. Similarly, the same could not have been furnished to the detenu. We have already made a reference to the case of Smt. Aisha B. M. Ibrahim, in Criminal Writ Petition No. 266 of 1993 decided by M. L. Pendse and M. F. Saldanha, J. A contention similar to the one at hand was raised in the said case and the same has been repelled.

51. We have also noticed the statements of the co-accused, which have been recorded on the 4th October, 1991. The statement of accused Michael Patel recorded on 4-10-1991 inter alia recites :

“That the statements recorded on 19-9-1991, 20-9-1991, 21-9-1991 and 22-9-1991 have been again read over and explained to me in Marathi i.e. my mother tongue and I confirm the contents incorporated in those statements. Further I once again agree that the same has been given by me voluntarily on being specifically asked.”

52. The statements of the other co-accused contain-similar averments. Having regard to the said statements we find that the alleged retraction application to be of a doubtful nature. Even if the retraction, as contended was made, the efficacy thereof has been obliterated by virtue of the statements recorded on 4th October, 1991.

53. It may be useful at this stage to peruse the contents of the retraction application. It inter alia recites :

“During the three days of illegal detention we were subject to force, coercion, pressure and threats and severe assault and certain self incriminating statements were extorted from us against our will. We say and submit that the said incriminating portions of our statements are neither true nor voluntary. The same has been recorded against our will. We, therefore, hereby retract the same. The said statements are not binding upon us.”

The said retraction statement, as we read it, pertains to and is restricted to the portions of the statements, which are incriminating to each of the accused, whose statements have been recorded. The averment “we say and submit that the said incriminating portions of our statements are neither true nor voluntary” relates only to the portion of the statements which are incriminating to the maker of the statements. The same do not pertain to the role which is attributed by them to the detenu. What has been retracted are portions of the statements, which are incriminating to makers of the statements. As far as the portions of the statements which are made against the detenu are concerned the same have not been retracted and have been left in tact. This is one more reason why the said retraction statements cannot be considered to be vital material as far as the detenu is concerned.

54. In the case Smt. Kusum Chandrakant Khaushe v. L. Hmlingliana, (Criminal Writ Petition No. 147 of 1991) decided by M. L. Pendse & A. D. Mane, JJ. dated 20th August, 1991 : , this Court dealt with similar contention, and this is what has been observed :-

“The second contention urged by the learned counsel is that the detenu was produced before the Additional Chief Metropolitan Magistrate, Esplanade, Bombay on arrest and had applied for release on grant of bail. The Magistrate had passed order directing release of the detenu on furnishing a bail of Rs. 8 lakhs with surety in the like amount. The detenu had made application for reduction of bail on August, 14, 1990 but did not receive a favourable order. The detenu again filed fresh application on August 27, 1990, alongwith the co-accused Manjanath Pol requesting that the bail amount should be reduced. Mrs. Pradhan submitted that in the application a statement was made that the detenu has retracted the statement recorded under Section 108 of the Customs Act. A copy of the application was furnished to the Customs authorities as per the order of the trial Magistrate. Mrs. Pradhan submitted that this application, inclusive of the statements made by the detenu retracting the statement recorded under Section 108 of the Customs Act was relevant piece of document and should have placed before the detaining authority and failure to do so must result in quashing of the detention order. It is not possible to accept the submission of the learned counsel. In the first instance the submission proceeds on the assumption that the application dated August 27, 1990, is an application for retraction of statement made under Section 108 of the Customs Act. We have perused the copy of the application, which is annexed as Exhibit ‘D’ to the petition. The perusal of the application leaves no manner of doubt that the application was simply for reduction of the bail amount and was not an application for retracting the statement made under Section 108 of the Customs Act. The only averment regarding retraction of statement in the application is as follows :- “The only evidence is the forced statement which has been retracted on the first day of their production in Court.”

By this statement the detenu desires to convey that the statement was retracted on the first day when the detenu was produced before the Magistrate. We enquired with the learned counsel as to whether any written application retracting the statement under Section 108 of the Customs Act was filed before the Magistrate on the day when the detenu was produced, and the learned counsel replied that no such written statement was filed, but oral statement was made. We are unable to appreciate any merit in the submissions that the application dated August 27, 1990 is a relevant document and ought to have been placed, before the detaining authority, and failure to do so has resulted into miscarriage of justice.

55. The aforesaid case, i.e., Smt. Kusum Chandrakant Khaushe v. L. Hmlingliana was carried to the Supreme Court, () and the observations of this Court were approved by the Supreme Court by making the following observations :-

“the second submission made by the learned counsel is that the High Court has failed to consider the statement of retraction of the detenu made in the application dated 27-8-90 praying for reduction of the bail amount in the proper perspective. Admittedly, in the earlier bail application no such retraction has been made. The only alleged retraction statement as found in the bail application for reduction of the bail amount reads as follows :- “Nothing incriminating has been found from their person or from their residence. The only evidence is their forced statements, which have been retracted on the 1st day of their production in the Court.”

As rightly pointed out by the High Court, there is no supporting document showing that the detenu has retracted even at the earliest point of time when he was produced before the Court on the first occasion. The High Court before which the same contention has been raised has been carefully examined and rejected for the reasons given in para 4 of its judgment. On carefully examining this contention, we see no force on this submission also.”

In view of the above discussion, we find that the present contention is also devoid of merit and the same is rejected.

56. The fourth contention raised by Shri Karmali also pertains to no placement of material documents. It is pointed out that the co-detenu, Michael Patil, on 29th October, 1991 had submitted an application to the Court whereunder he had prayed that as the Customs Authorities want to take him to their office for further interrogation and that as he apprehended that he would be threatened and assaulted, he should be allowed to have his lawyer present with him during his interrogation. The said application was granted by the Court. A copy of the application is annexed at Exhibit-H to the petition. According to Shri Karmali, the said document being a document of vital nature, it was likely to influence the mind of the detaining authority one way or the other and as such it ought to have been not only placed before the detaining authority and not only the detaining authority ought to have considered it but also the detaining authority ought to have furnished a copy of the same to the detenu. The non-placement and the non-consideration impaired the satisfaction of the detaining authority vitiating the impugned order of detention and the non furnishing a copy of the same to the detenu disabled the detenu from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order of detention is, thus, violative of Article 22(5) of the Constitution and as such it is mala fide, null and void.

57. It is pertinent to note that the aforesaid application is dated 20th October, 1991. It is further pertinent to note that the statements of Michael which have been recorded are dated 9th September, 1991, 20th September, 1991, 21st September, 1991, 22nd September, 1991 and 4th October, 1991. The prayer, which is made in this application, was never made prior to the recording of any of these statements. No statement appear to have been recorded after 4th October, 1991. Hence the application for presence of an Advocate made on 28th October, 1991 is of no consequence. Hence, we find that the aforesaid document cannot be termed as a material document. Hence non-placement of the same has not affected the subjective satisfaction of the detaining authority and non furnishing of the same has not affected the right of the detenu to make an effective representation. There is, therefore, no violation of the right conferred by Article 22(5) of the Constitution of India, as is sought to be contended by Shri Karmali. The said contention, therefore, also deserves to be rejected.

58. It is next contended by Shri Karmali that pursuant to the order passed by the Court on 23rd September, 1991 accused Nos. 1, 2 and 8 were sent to the G.W. Hospital for medical examination and treatment. The said accused were examined and their medical reports were forwarded to the Court. The petitioner has annexed the copies of the report at Ex Annexures ‘I’, ‘J’ & ‘K’ to the petition. According to Shri Karmali, the said medical reports, being documents of vital nature, which were likely to influence the mind of the detaining authority one way or the other, it was incumbent upon the sponsoring authorities to have placed before the detaining authority the said reports and it was not only incumbent upon the detaining authority to have considered them but also to have furnished their copies to the detenu. The non-placement and non-consideration impaired the satisfaction of the detaining authority and the non-furnishing their copies to the detenu disabled the detenu from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order of detention is, thus, violative of Article 22(5) of the Constitution and as such it is malafide, null and void.

D/-20-1-1995

59. We have already made our observations in regard to the allegations of ill treatment alleged to have been meted out by the Customs Officials and the findings recorded in the medical reports. We have found that the same are contradictory and the same fail to inspire confidence.

60. The detaining authority has in its affidavit averred that the medical reports were directly forwarded to the Court. The copies of the reports were not directed to be sent to the Customs Department by the Court. No instructions or directions were issued to the Customs Department in response to the filing of the medical reports. Since the medical reports were not available to the sponsoring authority, they could not have and were not placed before the detaining authority. Since the said reports were not placed before the detaining authority, there was no question of supplying copies thereof to the detenu. Hence there is no violation of the detenu’s right under Article 22(5) of the Constitution of India. The medical reports are in respect of the co-accused and do not pertain to the detenu. Just as we have found in the case of retraction application so do we find in respect of the medical reports that the same cannot be considered to be a vital material as far as the detenu is concerned. The present contention, therefore, stands rejected.

61. Shri Karmali has next submitted that even assuming that the impugned order of detention dated 5-2-1992, when issued was legal and valid, yet the same ought not to have executed and served on the detenu on 13th August, 1993 without the detaining authority reconsidering the matter afresh and applying his mind once again as to whether in view of the changed circumstances, the impugned order of detention was at all warranted to be executed and served on the detenu on 13th August, 1993 inasmuch as prior to that date on 23rd July, 1993, the detenu was already arrested by the Delhi Police Authorities under the TADA and the Arms Act and as a result the detenu had already been kept confined in custody and there was no possibility of the detenu being enlarged on bail in that case and indulge in any alleged prejudicial activities and as a result the necessity of serving and executing the impugned order of detention on the detenu has already been eliminated. According to Shri Karmali, the detaining authority having failed to have reconsidered the matter afresh and having failed to apply his mind to the changed circumstances, the impugned order of detention in any case at the time when it was served and executed had become invalid and unenforceable in law. The detention of the detenu pursuant to the service of such an order is mala fide, null and void. The detenu, therefore, is liable to be set at liberty.

62. In support of his contention Shri Karmali has relied upon the decision of the Supreme Court in the case of Binod Singh v. District Magistrate, Dhanbad, Bihar, . In that case the Supreme Court was dealing with a similar contention, which is to be found in paragraph 4 of the Judgment, which reads as follows :- “4. It is the contention of the petitioner/appellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was imminent and the order of detention was necessary for putting him back in jail. The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under Section 3(2) of the Act.”

On the aforesaid contention, the Supreme Court has observed, thus :

“In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.

It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration, by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.”

63. The detaining authority, (who was at the relevant time Secretary to the Government of Maharashtra, Preventive Detention, Home Department) in his affidavit in reply has averred as follows :-

“With reference to para 6(vi), it is true that when the detention order was executed the detenu was arrested by Delhi Police and he had been kept confined in their custody. I was already transferred from Home Department to Maharashtra Petrochemicals Corporation Ltd., and on 15-6-1993 Shri C. D. Singh took over the charge as Secretary, Preventive Detention, Shri C. D. Singh was aware of the fact that the detenu was arrested by Delhi Police. By letter dated 26-7-1993 the Sponsoring Authority had intimated to him that the Detention Order could not be executed because the detenu was reported to be absconding. It was further stated that Director General, D.R.I., Delhi had reported that detenu was arrested by Delhi Police and he was under the Custody of Delhi Police. It was further stated that Collector was directed to request Shri Singh to rush the copy of the detention order through Special Messenger to the Commissioner of Police, New Delhi so that it could be served on the Detenu immediately. This letter was placed before Shri C. D. Singh on 27-7-993. After considering the matter Shri C. D. Singh made an endorsement on the said letter that the detention order be served on the detenu. I deny that though the order of detention is valid at the time when, it was issued, it became invalid at the time when it was executed. I deny that it is mala fide, null and void.”

64. In addition, we have an affidavit of Shri M. P. Rathod, Deputy Secretary, Home Department, (Spl.) Mantralaya. he has inter alia stated as under :-

“I say that by letter dated 26-7-1993 the Sponsoring Authority intimated to Shri C. D. Singh that. Detention Order issued against the detenu could not be executed because he was reported to be absconding. It was further stated in the said letter that the Director General D.R.I. Delhi had reported that the detenu was arrested by Delhi Police and he was in the custody of Delhi Police. It was further stated that the Collector was directed to request Shri C. D. Singh to rush the copy of the detention order through the Special messenger to the Commissioner of Police, New Delhi so that it could be served on the detenu immediately. This letter was placed before Shri C. D. Singh on 27-7-1993. He considered this letter and the fact that the detenu was arrested and was in the custody of Delhi Police in its proper perspective. He was of the opinion that though the detenu was in the custody of Delhi Police the possibility of his obtaining bail order could not be ruled out. He had reasonable apprehension in his mind that after getting release on bail the detenu may revert back to similar prejudicial activities. He was satisfied that preventive detention of the detenu was pressing and compelling necessity. After considering the matter in depth, he made an endorsement on the said letter that the detention order may be served on the detenue.

65. It is clear that the fact that the detenu was in custody of the Delhi Police was brought to the notice of the detaining authority. The detaining authority was of the view that though the detenu was in the custody of the Delhi Police, the possibility of his obtaining bail order could not be ruled out. He had reasonable apprehension in his mind that after getting released on bail, the detenu may revert back to the similar prejudicial activities. He was satisfied that the preventive detention of the detenu was a pressing and compelling necessity. Having considered the matter in depth he passed the directions for service of the detention order on the detenu. In our view, the above material is sufficient to repel the contention that the continued detention of the detenu is vitiated. The detaining authority was made aware of the fact that the detenu was in custody. Having borne the said fact in mind the detaining authority has arrived at its decision that the detention order observes to be served on the detenu. The present contention, therefore, deserves to be rejected.

66. Shri Karmali has next raised several grievances in respect of the faulty or inaccurate translations furnished to the detenu. He has first contended that in the English version of the impugned order of detention, it is stated that it is issued with a view to preventing the detenu from “abetting” the smuggling of the goods whereas in the Marathi version of the impugned order it is stated that it is issued with a view to preventing the detenue from – “Malacha taskari vyapar karaya pasun”, i.e., “smuggling of goods”. According to Shri Karmali the English version of the order of detention falls under Section 3(1)(ii) of the COFEPOSA Act whereas the Marathi version of the said order falls under Section 3(1)(ii) of the said Act. In the premises, the impugned order of detention, as issued, in English was not “communicated” to the detenu in Marathi. The detenu as a result was also denied the earliest opportunity of making an effective representation against the impugned order of detention.

67. Shri Karmali has made a similar grievance in regard to the inaccurrate or faulty translations in respect of the declaration issued on 15th September, 1993 under Section 9(1) of the COFEPOSA Act. He has submitted that in the English version of the said declaration, it is stated that the declaring authority was satisfied that the detenu was likely to abet the smuggling of goods “out of and through” the Indian Customs waters contiguous to the State of Maharashtra. In the Marathi version of the said declaration, the crucial words, “out of and through” are not translated. Furthermore, it is stated in the Marathi version of the said declaration that the detenu was likely to abet the smuggling of goods into the Indian Customs Waters continguous to the State of Maharashtra. The Marathi version, thus, does not contain a true and faithful transaction of its counterpart in the English language. As a result the impugned declaration was not communicated to the detenu in Marathi language. The detenu also as a result was denied the earliest opportunity of making an effective representation at the earliest opportunity against the impugned declaration. The impugned declaration is, thus, violative of both the facets of Article 22(5) of the Constitution and as such it is mala fide, null and void.

68. Carrying his arguments further Shri Karmali has submitted that in the impugned declaration the declaring authority has arrived at a satisfaction that the detenu was likely to abet the smuggling of goods out of and through the Indian Customs Waters contiguous to the State of Maharashtra. According to him, no material whatsoever existed and no material whatsoever was placed before the declaring authority that the detenu had abetted or was likely to abet smuggling of goods out of and through the Indian Customs Waters contiguous to the State of Maharashtra. The material placed before the detaining authority at best would have led the declaring authority to issue a declaration to the effect that the detenu was likely to abet the smuggling of goods into and not out of the Indian Customs Waters contiguous to the State of Maharashtra. The impugned declaration, as issued, is thus based on non existent and illusory facts and material. The declaration issued smacks of non application of mind and is per se mala fide and null and void.

69. In support of his contention Shri Karmali has placed reliance on a decision of this Court in the case of Preadeepkumar Vanravandas Gosalia v. State of Maharashtra, 1986 Cri LJ 450 (Bom), wherein it has been observed as follows :-

“From the facts and circumstances of this case, there is no doubt that the detenu was apprehended for exporting goods outside the country and the impugned order (English version) has to be understood in that light alone and yet the Gujarati version leaves no doubt that the detenu was detained with a view to preventing him from bringing in smuggled goods. This is bound to create confusion in the mind of the detenu as to what case he has to meet. He must know whether he has to meet the case of ‘smuggling’ in the sense of exporting the goods of “smuggling” in the sense of importing the goods. Mr. Karmali in his terse arguments has submitted that the detenu whose mother tongue is Gujarati and who has studied through that medium was bound to rely on the Gujarati version for making the representation. He has submitted that wrong and misleading translation has prejudiced his valuable right under Article 22(5) of the Constitution. We have already pointed out above that even in the affidavit, which has been filed on behalf of respondent No. 1, it has been admitted that it is a mistake, though it has been tried to explain it by calling it a minor mistake. We do not think that it is a minor mistake. On the other hand, in our view, the mistake pointed out above goes to the very root of the case. There can be no dispute or debate that bringing in goods inside the country and exporting them outside the country are two independent and distinct acts involving serious implications. Mr. Kotwal, the learned Public Prosecutor, has vehemently argued that the detenu is an English-knowing man. He has placed reliance on the endorsement made by the detenu himself at the end of his statement under Section 108 of the Customs Act, 1962. Relying on this circumstances, Mr. Kotwal has submitted that this is not a case where a detenu did not know English. Even Mr. Karmali does not dispute the position that the detenu knew English. The moot point for consideration is whether the detenu, whose mother tongue is Gujarati and who has studied throughout through English medium, would be justified in relying on the Gujarati version supplied to him by the authorities for making a representation under Art. 22(5) of the Constitution. We have no doubt that in a case like this, the detenu would be perfectly justified in relying on the version supplied to him in his mother tongue and if that happens to be wrong or misleading, then the logical consequences will follow. In our view, it is bound to prejudice his valuable right to making an effective representation.”

70. As far as the grievance in respect of traslaction is concerned, one has to take a practical approach and one cannot take too rigid or technical view of the matter. The translation should give a reasonable and fair idea of the original document. They should not convey a diametrical opposite view. Slight or minor omissions should not be held fatal unless shown to be fatal. If errors or omissions in translations are shown to be covered by any other documents, the same should be construed as sufficient compliance of the requirements. The pragmatic yardstick to be followed is whether the detenu has knowledge of English and whether translation supplied furnishes a fair and reasonable information in respect of the originals to the detenu.

71. This Court in the case of Smt. Hawabi Sayed Arif Sayed Hanif v. Hmingliana, Secretary (Preventive Detention), reported in 1991 Cri LJ 437 (Bom), on the issue raised, has observed as under :-

“The Territorial Waters Act, 1976 defines “territorial waters”. Section 3 of the Act states that the sovereignty of India extends and has always extended to the territorial waters of India. Under Sub-section (2) of Section 3, the limit of territorial waters is the line, every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.

Section 5 defines the “contiguous zone” of India as an area beyond and adjacent to the territorial waters. And the limit of the contiguous zone is the line, every point of which is at a distance of twenty four nautical miles from the nearest point of the baseline as set out in Section 5 of the Territorial Waters Act, 1976. The Contiguous Zone extends beyond territorial waters. Indian Customs Waters, therefore, cover an area extending to 24 nautical miles from the coastal baseline in the States specified in explanation 1 to Section 9(1) of the COFEPOSA Act. Looking to this definition of, “Indian Customs Waters”, they cover not merely Indian costal waters but also much more, because the customs Waters extends to 24 nautical miles beyond the coastal baseline. Indian coastal waters are therefore within the Indian Customs Waters. The declaration in the present case, therefore, which refers to the likelihood of the detenu’s smuggling goods into and through the Indian coastal waters contiguous to the State of Karnataka, clearly refers to an area within the Indian Customs Waters which is highly vulnerable to smuggling. It complies with the requirements of Section 9(1).

Mr. Agarwal, learned advocate for the Central Government, has described this with reference to “coastal” waters instead of “customs waters” as merely a typographical error which does not affect the order. According to Mr. Karmali learned advocate for the petitioner, an error of this nature indicates non-application of mind by the Central Government. In the first place, it is not clear whether this is merely a typographical error. Assuming, however, that it is so, does it necessarily vitiate the order of detention.

Mr. Karmali drew our attention to a decision of the Division Bench of this Court dated 6th June, 1988 in Criminal Writ Petition No. 246 of 1988, Mackie Francis Pereira v. State of Maharashtra, decided by Pendse and Tipnis, JJ. In that case, in the grounds of detention, the date of the raid which was carried out was wrongly mentioned as 18th September, 1987 instead of 23rd September, 1987. The Court held that as the wrong date was mentioned the detenu was deprived of a reasonable opportunity of making any effective representation. Although it was urged that it was a typographical error, the Court held that if it was a typographical error it would amount to non-application of mind by the detaining authority. In that case the date of the raid was very material and it was an incident in respect of which the detenu was entitled to make a representation. An error of this nature would also indicate non-application of mind. In the present case however, there was no such error in the grounds of detention. The error is in the declaration u/S. 9(1) when it describes the area highly vulnerable to smuggling. The location of smuggling activities is clearly set out in the grounds of detention. The right of the detenu to make a representation is not affected in any way by this typographical error in the declaration. Hence the ratio of the Division Bench has no application here.”

The aforesaid decision of this Court was carried to the Supreme Court, i.e. Smt. Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana, , wherein the Supreme Court observed thus :

“As pointed out by the High Court S. 2(d) defines “Indian Customs Waters” as having the same meaning as in Clause 298 of Section 2 of the Customs Act, 1962 (as substituted for certain words by Act 25 of 1978) which defines, Indian Customs Waters as waters extending into sea up to the limit of contiguous zone of India under Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (in short ‘Territorial Waters Act of 1976’) and includes any bay, gulf, harbour, creek or tidal river, Section 3 of the Territorial Waters Act states that the sovereignty of India extends and has always extended to the territorial waters of India and to the sea bed and the subsoil underlying, etc. Under Section 3(2) the limit of territorial waters is the line, every point of which is at a distance of twelve nautical miles from one nearest point of the appropriate baseline. Section 5 defines the ‘contiguous zone of India’ stating that it is an area beyond and adjacent to the territorial waters and the limit of contiguous zone is as defined in Section 3(2) of this Territorial Waters Act of 1976, Indian Customs Waters, therefore, cover an area of 24 nautical miles from the coastal baseline in the State specified in Explanation 1 to Section 9(1) of the COFEPOSA Act. As rightly pointed out by the High Court, looking to this definition of ‘Indian Customs Waters’ it covers not only Indian coastal waters but also much more because the customs waters extends 24 nautical miles from the coastal baseline which follows that Indian coastal waters are within the Indian Customs Waters and, therefore, the expression “Indian Coastal Waters” used in the declaration refers to an area within the Indian Customs Waters which is highly vulnerable to smuggling.

The averments made in the grounds of detention would also make it clear that the offence of smuggling of silver ingots was within the Indian Customs Waters. The relevant portion of avements read thus :

“During surveillance around 23.00 hrs., on 25-9-90, the officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour. It was found moving slowly towards Karwar and on suspicion the officers on the coast guard ship signalled with loud speaker and search lights for the Arab Dhow to stop. The Arab Dhow, instead of stopping, started speeding away in the opposite direction from the coast. Seeing this, the officers on coast guard ship fired in the air and warned the crew on the Arab Dhow to bring it along side the ship. Thereafter the Arab Dhow stopped and came along side the coast guard ship and the officers from the coast guard ship boarded the Arab Dhow. It was found named ‘Al Akbari’. On examination of the Arab Dhow the Officers found 150 packages containing contraband silver ingots on board.”

No doubt in the declaration the expression ‘Indian Coastal Waters’ is used instead of ‘Indian Customs Waters’. In Sub-para (vii) of para 7 of the counter the respondents have attempted to explain this expression by stating that the word ‘Coastal’ in place of ‘Customs’ is a typographical error which does not vitiate the order on any ground inclusive of one that there was no application of mind. After carefully analysing the submission with reference to the explanation given by the respondents, we are in full agreement with the High Court that this typographical mistake has in no way prejudiced the detenu in making his representation. It is not the case of the detenu that he was in any way deprived of making his effective representation before the Advisory Board nor he has made any complaint before the Advisory Board.

In the present case, the apprehended activities of smuggling by the detenu have a territorial nexus with the State of Maharashtra. Indisputably the detenu is a resident of Bombay. The grounds of detention refer to a conspiracy hatched by the detenu in Bombay to smuggle silver ingot from Dubai to India. The detenu had engaged some of the crew members of the vessel which brought the contraband silver ingots into India, in Bombay. Their air-tickets were also purchased by the detenu in Bombay. A perusal of the grounds of detention clearly show that almost all arrangements were made for the disposal of smuggled silver ingots in Bombay. According to the respondents, the silver ingots were seized in Bombay although the contraband were taken to Karwar (Karnataka State) for safe custody. Added to that, it is seen from the grounds of detention that of the two previous attempts to smuggle silver the first attempt was to smuggle the silver at a spot within 5 or 6 nautical miles off Murud which is within the jurisdiction of Maharashtra. In the above circumstances, the detaining authority legitimately drawing his subjective satisfaction that in future the smuggling activities of the detenu may take place within the State of Maharashtra has passed the detention order in exercise of his powers under Section 3(1) of the Act. Thus, there is a clear nexus between the detenu and his activities of smuggling goods within the State of Maharashtra.”

72. In the case of A. Alangarasamy v. State of Tamil Nadu, , the Supreme Court was considering a similar grievance and this is what has been observed :-

“The learned counsel for the petitioner raises two questions before us. (1) There is variation between Tamil and English version of the grounds of detention served on the petitioner. According to him the order of detention in English states that the detention order has been passed to prevent the detenu from indulging in smuggling activities, while the grounds furnished to him in Tamil discloses that the detention order has been passed with a view to prevent him from transporting contraband goods. The English version would bring the ground under Section 3(1)(i) of the Act while the Tamil version would bring it under Section 3(1)(iii). The detenu knew only Tamil. The difference in this version has caused prejudice to him in making a proper representation. (2) The detaining authority did not despatch all the materials before it to the Advisory Board for the Advisory Board to come to an independent conclusion on the grounds of detention and the need for the detention. The Supreme Court has repelled the contention thus : … …

We have considered the matter ourselves. 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. We, therefore, agree with the High Court and dismiss the appeal.”

73. As far as the detenue in our case is concerned, we find that he is a man of the world. He has been involved in large scale smuggling of goods from foreign countries to India. He has contacts with people stationed abroad and has business connections with them. He was kept in contact through the wireless sets fitted on vessels which were used for smuggling goods. Moreover, the detenu has made a detailed representation to the Advisory Board which is in English. We, are, therefore, not impressed by the contentions advanced on his behalf that he has no knowledge of English. It is, therefore, difficult to subscribe to the contention based on faulty or inaccurate translations. The translations supplied convey a fair and reasonable idea of the original documents which are in English. In the circumstances, we find that the present contention deserves to be rejected.

74. This leaves us with the last contention advanced by Shri Karmali and the same relates to the declaration which has been issued on 15th September, 1993 under Section 9(1) of the COFEPOSA Act. According to Shri Karmali the detenu not being an enlightened person conversant with his constitutional rights; it was incumbent upon the declaring authority to have apprised the detenu that the detenu had a right to make a representation against the impugned declaration also to the declaring authority himself. The same not having been done, the impugned declaration is violative of Article 22(5) of the Constitution and as such it is mala fide, null and void. A perusal of the declaration shows that the detenu was informed that he has right to represent to the Central Government and the Advisory Board against the said declaration. According to Shri Karmali, it was incumbent upon the declaring authority to have appraised the detenu that he had a similar right to make a representation against the impugned declaration also to the declaring authority himself. As far as the impugned declaration is concerned, all that the detenu is informed is that he has a right to represent against the same to the Central Government and Advisory Board. He has not been apprised that he has a right to represent against the declaration also to the declaring authority. The detenu not being an enlightened person is not conversant with his constitutional rights and hence failure on the part of the declaring authority to apprise the detenu of his right to represent before the declaring authority has violated the detenu’s right under Article 22(5) of the Constitution and hence the declaration is liable to be held as mala fide, null and void. Once the declaration is set aside the order of detention will also fall to the ground and is liable to be quashed.

75. As far as the present contention is concerned, we find that there is no constitutional or statutory right conferred upon a detenu to make a representation against a declaration made under Section 9 as the one conferred in respect of an order of detention issued under Section 3(1) of the Act. Article 22(5), enshrined in the Constitution provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The above provision provides for service of the grounds on which the order of detention has been made so as to afford to the detenu an opportunity to make representation against the order of detention. As far as an order of detention is concerned, there is a specific provision contained in Sub-section (3) of Section 3 which incorporates the provision of Article 22(5) of the Constitution of India and mandates expeditious service of the detention order in order to enable the detenu to represent against the order of detention. Sub-section (3) of Section 3 provides that for the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of 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.

76. It would thus appear that as far as an order of detention is concerned, Sub-section (3) of Section 3 makes a the provision of Article 22(5) of the Constitution of India applicable and a right is conferred on a detenu to make a representation against an order of detention. The Constitutional mandate conferred by Article 22(5) has been incorporated in Sub-section (3) of Section 3. Hence, a right of the detenu to make a representation against the order of detention is both a constitutional right as also a statutory right. As far as a declaration, which is provided by Section 9 is concerned, there is no provision which provides a detenu with a right to make a representation. No right is conferred upon a detenu to make a representation against the declaration issued under Section 9. The omission of a provision akin to the provision of Section 3(3) in Section 9 is significant. It would, therefore, follow that there is no right either constitutional or statutory to make a representation against a declaration issued under Section 9.

77. Section 8 provides for constitution of Advisory Boards for the purposes of Sub-clause (a) of Clause (4), and Sub-clause (c) of Clause (7) of Article 22 of the Constitution. Sub-section (c) of Section 8 provides, as under :-

“The Advisory Board to which a reference is made under Cl. (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.”

Hence, it would appear that a detenu under the aforsaid provision has a right to make representation to the Advisory Boards against the order of detention and in respect of a declaration made under Section 9(1), Sec. 9(2) provides as under :-

“In the case of any person detained under a detention order to which the provisions of Sub-section (1) apply, Sec. 8 shall have effect subject to the following modifications, namely, (i) in Cl. (b), for the words “shall, within five weeks”, the words “shall, within four months and two weeks” shall be substituted;

(ii) in Cl. (c), –

(1) for the words, “the detention of the person concerned”, the words “the continued detention of the person concerned” shall be substituted;

(2) for the words” “eleven weeks”, the words” five months and three weeks” shall be substituted;

(iii) in Cl. (f), for the words “for the detention”, at both the places where they occur, the words “for the continued detention” shall be substituted.”

Hence it would appear that as far as a declaration under Section 9 is concerned, the provisions of Section 8 have been incorporated with certain modifications and Advisory Board has been conferred with the power to go into the legality or otherwise of the continued detention which is directed by the declaration issued under Section 9(1). Similarly a detenu has been conferred with a right to impugn his continued detention before the Advisory Board which has been authorised by the declaration issued under Section 9(1).

78. As far as the provision which relates to making of a declaration, which is contained in Section 9 of the COFEPOSA Act is concerned, there is no provision made for service of the order on the detenu so as to enable him to make a representation against the declaration. The omission of the provision analogous to one contained under Section 3(3) is material and significant. It would, therefore, follow that there is no constitutional or statutory right conferred on a detenu to make a representation against a declaration and the only remedy which has been conferred is to represent against the same to the Advisory Board under Section 8(c) read with S. 9(2) of the Act. If there is a violation of constitutional mandate the same would vitiate an order of detention whether or not prejudice has ensued on account of the violation. If there is violation of statutory right which is of mandatory nature the same would also vitiate an order whether or not prejudice is caused on account of the violation. If however, there is neither constitutional nor statutory right then prejudice will have to be shown before an order can successfully be impugned.

79. Section 11 of the COFEPOSA Act deals with revocation of detention order and the same provides as under :-

“Revocation of detention Order – (1) without prejudice to the provisions of Sec. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified –

(a) Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;

(b) Notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

(2) The revocation of a detention order shall not bar the making of another order under Section 3 against the same person.”

Section 11, it would appear, deals with revocation of a detention order and no specific provision is made for revocation of a declaration issued under Section 9 of the Act.

80. In the case of Jagprit Singh v. Union of India, IX 1990 (3) Crimes 130, the Supreme Court considered a similar contention in the following terms :-

“The second point taken by Shri Harjinder Singh is that in this case declaration under Section 9 of the Act had been made on 4-10-1988. A copy of this declaration had been endorsed to the detenu. However, this declaration did not make the detenu aware of his rights of representation against the declaration. According to the learned counsel the declaration order itself or some communication contemporaneously issued must have informed the detenu that he had a right to make the representation against the declaration to the declaring authority, the Central Government and the Advisory Board constituted under the Act. Learned counsel submits that this not having been done, at least his continued detention beyond the original period of one year from the date of detention is unjustified.” “Taking up the second contention first, it is not denied on behalf of the respondents that the detenu has a right of representation against the detention order. There is some controversy before us as to whether the detenu has a right to make a representation to the declaring authority or not but we express no opinion on this point for the purposes of this case. But it is undeniable that in the facts and circumstances of this case, the detenu has not been made aware, either in the order of declaration or within a reasonable time thereafter, that he had a right to make a representation against the declaration to the appropriate authorities. From the paperss placed on record, it has not until the detenu wrote to the declaring authority on 10-1-1988 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority, that a clarification on this matter was furnished to him on 17-11-1988. In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the constitution to make an effective representation against the declaration. This delay in our opinion, is quite unreasonable and inconsistent with the provisions of Article 22(5) of the Constitution of India. The detention of the detenu beyond the original period of one year, in the circumstances, was unjustified. We, therefore, set aside the detention of the detenu beyond September, 1989 and direct that he be set at liberty at once unless there are other justifiable circumstances to hold him back in custody.”

It would thus be seen that as far as the issue in regard to the right of the detenu to make a representation against a declaration to the declaring authority is concerned, it has been kept open in the above case.

In the case of Smt. Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana, (supra), one of the contentions which the Supreme Court considered, was :-

“The declaration under S. 9(1) of the Act is also an order within the meaning of Article 22 and, therefore, all the constitutional safeguard which are available to the detenu in relation to the main detention order should be extended to the detenu in relation to the declaration under S. 9(1) also.”

In this context, the Supreme Court has observed, thus :

“The detenu has got a constitutional right to challenge the order of detention by making a representation against the detention order as envisaged under Art. 22(5). It may be recalled that the detenu against whom the order of detention has been passed and thereafter a declaration under Section 9(1), has been made, has got a statutory right under Section 8(c) of the Act, to be heard in person if he so desires and the Advisory Board has to submit its report only after hearing him. Therefore, it follows that the detenu should be served with the initial order of detention within the specified period and the order of declaration within a responsible time so that he could make his personal representation to the Advisory Board leaving apart his right of making representation to the detaining authority under Art. 22(5), challenging the order of detention.

… …

Our view is fortified by a recent decision of this Court made in Smt. Azra Fatima v. Union of India, , wherein the order of detention was passed under S. 3(3) of the Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act, 1988 and thereafter a declaration under S. 10(1) of the said 1988 Act which section is similar to S. 9(1) of the COFEPOSA Act. A contention was raised in that case that there was delayed communication of the declaration which had vitiated the order. This Court rejected that contention observing thus (Para 18 of AIR) : “The principle of five days and fifteen days as provided in Sub-section (3) of S. 3 relating communication of grounds of detention cannot be applied in respect of declaration issued under S. 10(1) of the Act ……..”

In view of the above finding there is no need to elaborately deal with the question as to whether constitutional safeguards under Art. 22(5) should be extended in the case of declaration also as in the case of detention order.

In view of the above decision we are constrained to hold that no right is conferred on a detenu to impugn a declaration before the declaring authority and the contention of Shri Karmali in this regard is rejected.

81. There is one more aspect of the matter. As far as the impugned declaration, which is annexed at Exhibit-D to the petition is concerned, the same, we find, has been issued by the Central Government and not by an empowered officer of the Central Government. The same is clear from the heading which provides as under :-

“GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE.”

The recital, however, provides :

“AND WHEREAS, I, the undersigned specially empowered in this behalf by the Central Government, have carefully considered the grounds of detention and the material served on the detenu and additional matter enclosed. Now, THEREFORE, I, the undersigned hereby declare that I am satisfied that the aforesaid Shri Jayendra Vishnu Thakur alias Bhai Thakur is likely to abet the …..

Shri Jayendra Vishnu Thakur alias Bhai Thakur is informed that he has right to represent to the Central Government and the Advisory Board against this declaration also in the manner specified in the grounds of detention.

Sd/- .

(K. Vishhwanathan)

Addl. Secretary to the Govt. of India”.

82. The aforesaid declaration is practically identical to the declarations which were before the Supreme Court in the case of Smt. Azra Fatima (supra) and in the case of Smt. Hawabi Sayed Arif Sayed Hanif, (supra). The aforesaid cases had arisen out of the petitions decided by our Court and the learned Public Prosecutor has produced for our perusal the record of the said cases and we find that the words of the declaration are practically identical to the words contained in the impugned declaration. In the case of Smt. Azra Fatima (supra), the Supreme Court, in paragraph 18 of its Judgment, has observed :

“Thus the declaration had been made in this case on 20-1-89 by the Ministry of Finance within the statutory period of five weeks of the detention and the period taken in serving the same on the detenu on 10-2-89 has been sufficiently explained.

……………………….”

Similarly in the case of Hawabi Sayed Arif Sayed Hanif (supra) the Supreme Court in paragraph 12 of its judgment has observed :-

“It is seen from the affidavit filed by the respondent before the High Court as well as from paragraph 22 of the impugned judgment of the High Court that the declaration which was made by the Central Government was received by the sponsoring authority on 22-11-1990. …………..”

83. For the foregoing reasons we hold that the impugned declaration has been issued by the Central Government. The detenu has been informed of his right to make a representation against the declaration to the Central Government, who had issued the declaration as also the Advisory Board. In the circumstances, we do not find any merit in the contention that the impugned declaration has been issued not by the Central Government but by an officer of the Central Government and there has been no infringment of any right to make a representation to the Declaring Authority. As far as the detenu is concerned, he has not made any representation either against the order of detention or against the declaration to any of the authorities. All that he has done is to make a representation to the Advisory Board. Had it been shown that the detenu had made representation against the declaration to the Central Government, it could have been contended on his behalf that he has been prejudiced and has been prevented from making a representation to the Declaring Authority as he was not informed of the said right. Since no representation at all has been made, we find that the contention, which has been raised, in the air and no prejudice is shown to have been caused to the detenu. Hence even if one were to hold that the declaration in the instant case has been issued by an officer of the Central Government the same cannot be successfully assailed on the ground that the detenu has not been informed of his right to make a representation to the Declaring Authority. Looked at from any point of view, we find that the last contention raised by Shri Karmali also deserves to be rejected.

84. For the foregoing reasons we find that the impugned order of detention issued under Section 3(1) as also the declaration issued under Section 9, has been issued by following the due procedure required by law and the same are upheld. As a consequence the prayer made by the petitioner for release of the detenu from the detention is rejected. For the very same reasons we find that the present petition is devoid of merit and the same is dismissed.

84. Rule is discharged.

85. Petition dismissed.

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