Full Judgment Text
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PETITIONER:
ASHADEVI, WIFE OF GOPAL GHERMAL MEHTA (DETENU)
Vs.
RESPONDENT:
K. SHIVERAJ,ADDL. CHIEF SECRETARY TO THE GOVERNMENT OFGUJARA
DATE OF JUDGMENT03/11/1978
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 447 1979 SCR (2) 215
1979 SCC (1) 222
CITATOR INFO :
D 1986 SC 687 (77)
R 1987 SC1472 (12)
D 1987 SC1748 (12)
R 1988 SC 208 (7)
D 1988 SC 227 (11)
D 1989 SC 497 (7)
F 1989 SC1282 (10)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974-Section 3(1)-Detenu detained
on allegation of smuggling of gold-His advocate not
permitted at the time of his interrogation-Confessional
statements retracted by detenu-No material placed before
detaining authority while passing detention order-Order
validity of’.
HEADNOTE:
A detention order, under s. 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974, was passed by the respondent against the detenu
(appellant’s husband) with a view to prevent him from
engaging in transporting smuggled gold. When the detenu was
in the custody of the Customs officers, his advocate
addressed a letter and sent a telegram to them protesting
against his detention and illegal custody beyond 24 hours
and also expressing an apprehension that he was being
detained with a view to obtain confessional statements under
duress. It was admitted that the advocate’s request for
permission to remain present at the time of interrogation of
the detenu was turned down by the Customs officers. The
advocate was also told that the detenu would be produced
before a Magistrate at 5.30 p.m. On the day of her request.
But that was not done. He was produced on the following day
and was remanded to judicial custody permitting further
interrogation by the Customs officers. During such
interrogation while in judicial custody, the detenu refused
to sign the further statements and squarely resiled from his
earlier confessional statements disowning the facts therein
stated. While the detenu’s application for bail was pending
before the Magistrate, the respondent passed the impugned
order.
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In her petition under Art. 226 of the Constitution for
the issue of a writ of habeas corpus the appellant contended
that the order of the detaining authority was liable to be
set aside because full facts of the case were not intimated
to it before detention order was passed and, therefore,
there was complete non-application of mind of the detaining
authority to the attendant vital circumstances. The High
Court dismissed the petition.
Allowing the appeal,
^
HELD: (1) The impugned order was invalid and illegal
because there was complete non-application of the mind of
the detaining authority to the most material and vital facts
which would have influenced the mind of The detaining
authority one way or the other as these were neither placed
before it nor considered by the detaining authority. [223E]
(2) It is well settled that if material or vital facts,
which would influence the mind of the detaining authority
one way or the other on the question whether or not to make
the detention order, are not placed before or are not con
216
sidered by the detaining authority it would vitiate its
subjective satisfaction rendering the detention order
illegal. The detaining authority must exercise due care and
caution and act fairly and justly in exercising the power of
detention and if taking into account matters extraneous to
the scope and purpose of the statute vitiates the subjective
satisfaction and renders the detention order invalid then
failure to take into consideration the most material or
vital facts likely to influence the mind of the authority
one way or the other would equally vitiate t the subjective
satisfaction and invalidate the detention order. [222A B]
In the instant case three facts were not communicated
to or placed before the detaining authority before it passed
the impugned order against the detenu viz., (i) during the
interrogation, in spite of the request, neither the presence
nor consultation of the advocate was permitted, (ii) in
spite of intimation to the advocate by the Customs officers
the detenu was not produced before the Magistrate at the
appointed time and (iii) the confessional statements were
squarely retracted by the detenu at the first available
opportunity while he was in judicial custody. The first two
had a bearing on the question whether the confessional
statements had been extorted under duress from the detenu or
not. while the third was in relation to the confessional
statements which formed the foundation of the impugned order
and as such were vital facts having a bearing on the main
issue before the detaining authority.
Sk. Nizamuddin v. State of West Bengal AIR 1974 SC
2353; Suresh Mahato v. The District Magistrate, Burdwan &
Ors.. AIR 1975 SC 728; Nandini Satpathy v. The State of
Orissa [1978] 2 SCC 424; applied.
(3) The fact that the request to have the presence or
consultation of the h lawyer was made and refused ought to
have been intimated to the detaining authority. Further in
passing the detention order the detaining authority based
its decision on the detenu’s confessional statements and,
therefore, it was obligatory upon the Customs officers to
report to the detaining authority the retraction of those
statements by the detenu. In fact of retraction would have
its own impact one way or the other on the detaining
authority before making up its mind whether or not to issue
the impugned order of detention. [223A B]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
350 of 1978.
(From the Judgment and order dt. 29-5-78 of the Gujarat
High Court in Spl. Criminal Appln. No. 20 of 1978)
Ram Jethmalani and Mrs. K. Hingorani for the appellant.
S. K. Mehta and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. On September 29, 1978 the detenu herein
was
directed to be released forthwith on his detention order
being set aside and we had stated that we would give our
reasons for our order later which we do presently.
217
By a detention order passed on January 4, 1978 under s.
3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (hereinafter referred to
as "COFEPOSA") the detenu Gopal Ghermal Mehta was detained
by the Additional Chief Secretary to the Government of
Gujarat (Respondent No. 1) with a view to preventing him
from engaging in transporting smuggled goods. The grounds of
detention were served upon him on the same day i.e. On
January 4, 1978. Briefly stated the grounds disclosed the
following material against the detenu: on receipt of certain
information on December 12, 1977 by the Customs officers of
Ahmedabad, the said officers had kept a watch for a Fiat Car
No. GTI-6020 and the said car with five occupants was
intercepted in the early hours of December 13, 1977 near
Naroda Railway Crossing and the occupants (the detenu and
four others) were taken to the Customs Divisional Office,
Paldi, Ahmedabad for examination. The detenu and the other
four occupants of the car denied that they were carrying any
smuggled gold or prohibited articles, but on search of one
of the occupants Sheveram Atmaram Chandwani two cloth bags
were recovered D, from him, in one of which there were 27
gold bars of foreign marking weighing 19 tolas valued at Rs.
2,16,00 and in the other there were 18 pieces of gold
bearing ’Trishul’ mark valued at Rs. 1,94,400/-. Chandwani
in his statement before the Customs officers stated that the
two bags which he was carrying on his person belonged to the
detenu who was dealing in Silver and Gold in Udaipur and
that he was merely a carrier who used to receive
remuneration of Rs. 100/- per trip from the detenu. Two
statements of the detenu were recorded by the Customs
officers on December 13 and 14, 197$, in which he
corroborated the version of Chandwani but added that the
entire quantity of foreign marked gold and the ’Trishul’
marked gold belonged to one Prem of Chandni Chowk, Delhi,
for and on whose behalf he was carrying the gold from Delhi
to Udaipur and from Udaipur to Ahmedabad for disposing it of
to two persons, Namely, Poonamchand Laxmanji and Bhagubhai
in Ahmedabad. The detenu also stated that this had been
going on for about six to eight months and that he had made
five to six trips in a month and on each such trip he used
to carry 2 1/2 to 3 kgs. of gold. He further admitted that
the Fiat Car in question had been purchased for this purpose
for Rs. 15,000/- which money had been provided by Prem. He
further stated that after disposal of the gold belonging to
Prem at Ahmedabad he used to carry the sale proceeds to Prem
and account for the same at the time of the next transaction
between him and Prem.
Counsel for the petitioner (being the wife of the
detenu) did not dispute that the aforesaid material
disclosed in the grounds was
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15-817SCI/78
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prima facie sufficient to show the detenu’s involvement in
the racket of smuggling gold, namely, transporting smuggled
gold from Delhi to Udaipur and from Udaipur to Ahmedabad but
he challenged the detention order on the ground that
procedural safeguards had not been followed vitiating the
requisite satisfaction on the part of the detaining
authority under s. 4(1). It appears that when the
interrogation of the detenu was going on while he was in
custody of the Customs officials, Smt. Devyantiben Shah, an
Advocate of the detenu addressed a letter as also a
telegram, both dated December 14, 1977, making a grievance
about the wrongful restraint and illegal custody of the
detenu by the Customs officers beyond 24 hours and
expressing apprehension that . the detenu had been so
detained with a view to obtain confessional statements
against his will. The receipt of the letter was disputed but
the Assistant Collector of Customs admitted the receipt of
the telegram from the Advocate on December 15, 1977. By his
reply dated December 15, 1977 sent to the Advocate, the
Assistant Collector denied the allegations made in the
telegram. Admittedly on December 14, 1977, the Advocate had
gone to the Customs office and had sought permission to
remain present at the time of the interrogation of the
detenu but her request was not acceded to as the Customs
Officers were of the view that there was no provision in law
permitting an Advocate to remain present at the time of
interrogation. Further on this occasion the Advocate was
told that the detenu will be produced before the Magistrate
at 5.30 p.m. On that very day and, therefore, she waited in
the Magistrate’s Court upto 5.30 p.m. to obtain bail for the
detenu but as the detenu was not produced the Magistrate
declined to pass any order on the bail application. On
December 15, 1977 the detenu was produced before the
Magistrate who remanded him to Customs custody for five days
in spite of opposition by the Advocate. On December 20, 1977
the detenu was again produced before the Magistrate and even
on this occasion bail was refused but the detenu was
remanded to judicial custody permitting further
interrogation by Customs Officers. On December 22, 1977
while he was in judicial custody the detenu was interrogated
by Customs officers and his statement was recorded on that
day but the detenu refused to sign the same and instead made
an endorsement that his earlier statements dated December 13
and 14, 1977 and the facts stated therein were not correct.
In other words, in his statement dated December 22, 1977 the
detenu had resiled from his earlier confessional statements
and had squarely repudiated the facts stated therein. On
January 3, 1978 the Advocate of the detenu made another
application for getting him released on bail as the period
of remand was to expire on January 1978 and that application
was fixed for hearing on January 6, 1978 but on January 4,
1978 itself while the
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detenu was in judicial custody the Additional Chief
Secretary to the Gujarat Government (Respondent No. 1)
passed the impugned order under s.3(1) of the "COFEPOSA" and
the detenu was detained thereunder.
The aforesaid detention was challenged by the appellant
(wife of the detenu) before the Gujarat High Court under
Article 226 of the Constitution by filing Special Criminal
Application No. 20 of 1978 seeking a writ of habeas corpus
for the release of the detenu principally on the ground that
there was complete non-application of mind on the part of
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the detaining authority (respondent No. 1) to the attendant
circumstances in which the confessional statement of the
detenu on which the detention order was mainly based-were
recorded, particularly the vital facts that transpired
during the interrogation as also those that followed the
recording of those statements. It was contended that apart
from the apprehension expressed in the Advocate’s telegram
that the detenu was being detained with a view to obtain his
confessional statements under duress, the said confessional
statements had actually been retracted by the detenu at the
first available opportunity when he was in judicial custody
on the ground that these had been involuntarily extorted
from him and that such retraction of the confessional
statements was not intimated to the detaining authority and
was not considered by it before passing the impugned
detention order and as such for want of considering such
vital fact the subjective satisfaction of the detaining
authority got vitiated and the impugned order was liable to
be set aside. The High Court, however, rejected the said
contention as also the other contentions urged on behalf of
the appellant (the wife of the detenu) and dismissed the
said application on May 29, 1978. Against this dismissal the
present appeal has been preferred.
Counsel for the petitioner contended before us that the
High Court had clearly erred in taking the view that since
the contents of the telegram dated December 14, 1977
expressing the apprehension had been made known to the
detaining authority it could not be said that this material
aspect of the case had been kept back from the detaining
authority. It was pointed out that the mere expression of an
apprehension that confessional statements might be extorted
was different from the actual obtaining of the statements
under pressure of which a complaint had been made by the
detenu in his statement recorded on December 22, 1977
wherein the earlier statements had been completely retracted
and it was urged that the fact that there was such
retraction of the confessional statements by the detenu at
the first
220
available opportunity was not communicated or placed before
the detaining authority when it considered the question of
passing the impugned order. Counsel further contended that
instead of considering whether these facts were vital enough
to require the application of mind by the detaining
authority, the High Court went on to record findings of
fact, to the effect (i) that it could not be said that the
detenu was in illegal custody: (ii) that the confessional
statements could not have been extracted under compulsion
and (iii) that the said statements were not obtained under
duress and in doing so the High Court clearly acted in
excess of jurisdiction and contrary to the well established
principles applicable to the issue of habeas corpus in
preventive detention case. In any case it was for the
detaining authority to apply its mind to these aspects
before deciding to issue the impugned order. Counsel further
contended that it was undisputed that the Advocate was not
allowed to be present nor allowed to be consulted during the
interrogation in spite of request having been made in that
behalf which clearly showed that the detenu was under duress
and not a free person. In any event, counsel contended, the
satisfaction of the detaining authority must be regarded as
vitiated inasmuch as these vital facts, namely, (i) that
during interrogation in spite of request neither the
presence nor the consultation of the Advocate was permitted;
(ii) that in spite of intimation to the Advocate in that
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behalf the detenu was not produced before the Magistrate at
5.30 p.m.. On December 14, 1977 and (iii) that the
confessional statements had been squarely retracted by the
detenu on December 22, 1977 at the first available
opportunity while he was in judicial custody all of which
had a material bearing and would have influenced the mind of
the detaining authority one way or the other-were neither
placed before nor considered by the detaining authority
before passing the detention order on January 4, 1978 and,
therefore, the impugned order was liable to be set aside. We
find considerable force in these contentions urged by
counsel for the appellant before us.
It is well settled that the subjective satisfaction
requisite on the part of the detaining authority, the
formation of which is a condition precedent to the passing
of the detention order will get vitiated if material or
vital facts which would have a bearing on the issue and
would influence the mind of the detaining authority one way
or the other are ignored or not considered by the detaining
authority before issuing the detention order. In Sk.
Nizamuddin v. State of West Bengal(1) the order o‘f
detention was made on September 10, 197 under s.3(2) (a) of
MISA based on the subjective satisfaction of the District
Magistrate that it was necessary to detain the petitioner
with
(1) A.I.R. 1974 S.C. 2353.
221
a view to preventing him from acting in a manner prejudicial
to the maintenance of supplies and services essential to
the community and his subjective satisfaction, according to
the ground of detention furnished to the petitioner, was
founded on a solitary incident of theft of aluminium wire
alleged to have been committed by the petitioner on April
14, 1973. In respect of this incident of theft a criminal
case was filed inter alia against the petitioner in the
Court of the Sub Divisional Magistrate Asansol, but the
criminal case was ultimately dropped as witnesses were not
willing to come forward to give evidence for fear of danger
W their life and the petitioner was discharged. It appeared
clear on record that the history-sheet of the petitioner
which was before the District Magistrate when he made the
order of detention did not make any reference to the
criminal case launched against tho petitioner, much less to
the fact that the prosecution had been dropped or the date
when the petitioner was discharged from that case. ID
connection with this aspect this Court observed as follows:
"We should have thought that the fact that a
criminal case is pending against the person who is
sought to be proceeded against by way of preventive
detention is a very material circumstance which ought
to be placed before the District Magistrate. That
circumstance might quite possibly have an impact on his
decision whether or not to make an order of detention.
It is not altogether unlikely that the District
Magistrate may in a given case take the view that since
a criminal case is pending against the person sought to
be detained, no order of detention should be made for
the present, but the criminal case should be allowed to
run its full course and only if it fails to result in
conviction, then preventive detention should be
resorted to. It would be most unfair to the person
sought to be detained not to disclose the pendency of a
criminal case against him to the District Magistrate."
It is true that the detention order in that case was
ultimately set aside on other grounds but the observations
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are quite significant. These observations were approved by
this Court in Suresh Mahato v. The District Magistrate,
Burdwan and others(1). The principle that could be clearly
deduced from the above observations is that if material or
vital facts which would influence the mind of the detaining
authority one way or the other on the question whether or
not to make the detention order, are not placed before or
are not considered by the detaining authority it would
vitiate its subjective satisfaction rendering the detention
order illegal. After all the detaining authority must
exercise
(1) A.I.R. 1975 S.C. 728.
222
Due care and caution and act fairly and justly in exercising
the power of detention and if taking into account matters
extraneous to the scope and purpose of the statute vitiates
the subjective satisfaction and renders the detention order
invalid then failure to take into consideration the most
material or vital facts likely to influence the mind of the
authority one way or the other would equally vitiate the
subjective satisfaction and invalidate the detention order.
In the instant case admittedly three facts were not
communicated to or placed before the detaining authority
before it passed the impugned order against the detenu,
namely, (i) that during interrogation of the detenu, in
spite of request neither the presence nor the consultation
of the Advocate was permitted; (ii) that in spite of
intimation to the Advocate in that behalf the detenu was not
produced before the Magistrate on December 14, 1977 and
(iii) that the confessional statements were squarely
retracted by the detenu on December 22, 1977 at the first
available opportunity while he was in judicial custody; the
first two had a bearing on the question whether the
confessional statements had been extorted under duress from
the detenu or not, while the third obviously was in relation
to the confessional statements which formed the main
foundation of the impugned order and such were vital facts
having & bearing on the main issue before the detaining
authority. As regards the first this Court in Nandini
Satpathy’s(1) case has observed in para 63 of the judgment
thus:
"Lawyer’s presence is a constitutional claim in
some circumstances in our country also, and, in the
context of Article 20(3), is an assurance of awareness
and observance of the right to silence. The Miranda
decision has insisted that if an accused person asks
for lawyer’s assistance, at the stage of interrogation,
it shall be granted before commencing or continuing
with the questioning. We think that Article 20(3) and
Article 22(1) may, in a way, be telescoped by making it
prudent for the police to permit the advocate of the
accused, if there be one, to be present at the time he
is examined. Overreaching Article 20(3) and Section
16(2) will be obviated by this requirement. We do not
lay down that the police must secure the services of a
lawyer. That will Lead to ’police station-lawyer’
system, an abuse which breeds other vices. But all that
we mean is that if an accused person expresses the wish
to have his lawyer by his side when his examination
goes on, this facility shall not be denied, without
being exposed to the serious reproof that involuntary
self-crimination secured in secrecy and by coercing the
will, was the project."
(1)[978] 2 S.C.C.424.
223
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In this case the request to have the presence/consultation
of a lawyer was turned down owing to some misconception of
the legal position but that apart, the fact that such a
request was made and refused ought to have been intimated to
the detaining authority. Further, in passing the detention
order the detaining authority obviously based its decision
on the detenu’s confessional statement of December 13 and
14, 1977 and, therefore, it was obligatory upon the Customs
officers to report the retraction of those statements by the
detenu on December 22, 1977 to the detaining authority, for,
it cannot be disputed that the fact of retraction would have
its own impact one way or the other on the detaining
authority before making up its mind whether or not to issue
the impugned order of detention. Questions whether the
confessional statements recorded on December 13 and 14, 1977
were voluntary statements or were statements which were
obtained from the detenu under duress or whether the
subsequent retraction of those statements by the detenu on
December 22, 1977 was in the nature of an after thought,
were primarily for the detaining authority to consider
before deciding to issue the impugned detention order but
since admittedly the aforesaid vital facts which would have
influenced the mind of the detaining authority one way or
the other were neither placed before nor considered by the
detaining authority it must be held that there was non
application of mind to the most material and vital facts
vitiating the requisite satisfaction of the detaining
authority thereby rendering the impugned detention order
invalid and illegal. For these reasons we set aside the
impugned detention order.
P.B.R. Appeal allowed.
224