Full Judgment Text
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PETITIONER:
MST. L.M.S. UMMU SALEEMA
Vs.
RESPONDENT:
B.B. GUJARAL & ANR.
DATE OF JUDGMENT04/05/1981
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1191 1981 SCR (3) 647
1981 SCC (3) 317 1981 SCALE (1)843
CITATOR INFO :
R 1981 SC2166 (15)
RF 1982 SC1500 (7)
R 1990 SC 176 (38)
RF 1991 SC2261 (7)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974, S.3(1).
Detention under-Delay in disposal of representation-
Whether vitiates detention.
Detaining Authority-Failure to consider prosecution
under the ordinary criminal law-Whether voids order of
detention.
Constitution of India 1950, Art. 22(5)-Detaining
authority-Failure of-To furnish copy of document to which
reference is made in grounds of detention-Whether fatal to
order of detention.
Indian Evidence Act 1872, Ss. 16 and 114-Detenu
alleging despatch of communication under certificate of
posting-Detaining authority contending non-receipt-Court
whether compelled to draw a presumption that communication
reached the addressee.
HEADNOTE:
On August 6, 1980 the car in which the detenu was
travelling was intercepted by Customs Officers and on a
search of the car, wrist watches of foreign origin and semi-
precious stones valued at Rs.2.95 lakhs were found
ingeniously concealed in the panelling of the front doors
and the cavity between the petrol tank and the steel plate
covering the petrol tank. The goods were seized by the
Customs Officers alongwith the Car. On 7.8.1980 the detenu
was interrogated and a statement was recorded which
incriminated himself and others. He was taken before the
Magistrate on 8.8. 1980 and was remanded to custody. On
12.8.1980 he was granted bail. On 14.8.80 the detenu was
stated to have sent a communication addressed to the
Assistant Collector of Customs, in which, according to him,
he retracted from the statement made by him on 7.8.80 and
claimed that the statement had been obtained by torturing
him.
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On 31.10.80. the first respondent made an order of
preventive detention against the detenu under Section 3(1)
of the Conservation of Foreign Exchange and Prevention of
smuggling Activities Act 1974. The order of detention and
the grounds of detention were served on 2.2.81, as the
detenu was avoiding service and arrest. The detenu made a
representation on 4.2.81, which was rejected by the
detaining authority, the first respondent on 19.2.1981.
648
In the writ petition to this Court it was contended on
behalf of detenu : (1) that as material documents viz.
record of investigation revealing the trunk telephone calls
and the record of investigation relating to the petrol which
was put into the jeep owned by the brother of the detenu,
upon which reliance was placed in the order of detention
were not supplied to the detenu along with the grounds of
detention, the detenu was thereby prevented from making an
effective representation and denied the Fundamental Right
guaranteed under Article 22(5). (2) The detaining authority
was under obligation to supply alongwith the grounds, copies
of all documents to which reference was made in the grounds
irrespective of whether such documents were not relied upon
in making the order of detention. (3). Although the detenu
had retracted from his alleged original statement dated
7.8.80 long before the order of detention was made, the fact
of such retraction was not considered by the detaining
authority (4). There was considerable delay in the disposal
of the representation by the detaining authority and this
was sufficient to vitiate the detention, (5). The detaining
authority did not apply his mind to the representation which
made an express reference to the retraction, (6). The
detaining authority had failed to consider the question
whether a prosecution under the ordinary criminal law would
not suffice to prevent the detenu from indulging in the
alleged activities and whether preventive detention was
necessary in the circumstances of the case.
Dismissing the petition the Court,
^
HELD : 1. (i) A perusal of the grounds of detention
reveal that neither the record of Trunk Calls nor the record
of investigation relating to the petrol put into the jeep
were in any manner relied upon by the detaining authority in
making the order of detention. [652 C]
(ii) The reference to the record of trunk calls was
made for the purpose of verifying the trunk call which was
received in the premises when the customs officers were
there. The reference to the record of investigation relating
to the petrol put into the jeep was to refute the statement
of the detenu’s brother that the jeep was not used during
the previous year and was in the garage. [651 G, 651 E, 653
D]
2. (i) The Constitutional requirement of Article 22(5)
is insistence that basic facts and particulars which
influenced the detaining authority in arriving at the
requisite satisfaction must be communicated to the detenu so
that the detenu may have an opportunity of making an
effective representation against the order of detention.
Every failure to furnish copy of a document to which
reference is made in the grounds of detention is not an
infringement of Art. 22 (5), fatal to the order of
detention. It is only a failure to furnish copies of such
documents as were relied upon by the detaining authority
making it difficult for the detenu to make an effective
representation that amounts to violation of the fundamental
right guaranteed by Article 22(5). [652 H-653 B]
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2. (ii) It is unnecessary to furnish copies of
documents to which casual or passing reference may be made
in the course of narration of facts and which are not relied
upon by the detaining authority in making the order of
detention. [653C]
649
Smt. Shalini Soni v. Union of India and Ors.AIR 1981 SC
431, Icchu Devi Choraria v. Union of India, AIR 1980 SC
1983, Khudiram Das v. The State of West Bengal, [1975] 2 SCR
832 @ 848, 849, referred to.
In the instant case the two documents cannot be said to
be documents which were relied upon by the detaining
authority in making the order of detention. Therefore, the
detenu could not properly complain that he was prevented
from making an effective representation. There was no
violation of the right guaranteed by Art. 22 of the
Constitution. [653 D]
3(i). If the detenu was serious in his request that his
retraction should be considered by the detaining authority
while considering his representation one would expect him to
send a copy of the letter of retraction alongwith his
representation instead of a copy of the certificate of
posting. [654 A]
(ii) The Certificate of posting might lead to a
presumption that a letter addressed to the Assistant
Collector of Customs was posted on 14.8.1980 and in due
course reached the addressee. But, that is only a
permissible and not an inevitable presumption. [654 E]
(iii) Neither Section 16 nor section 114 of the
Evidence Act compels the Court to draw a presumption that a
letter proved to be posted has reached the addressee. The
presumption may or may not be drawn. On the facts and
circumstances of a case, the Court may refuse to draw the
presumption. [654 F]
In the instant case, the alleged letter of retraction
was only a myth. No such letter of retraction was posted as
claimed by the detenu. [654 E, G]
4. The representation made by the detenu has to be
considered by the detaining authority with utmost expedition
but the time imperative can never be absolute or obsessive.
The occasional observations made by this Court that each
day’s delay in the dealing with the representation must be
adequately explained are meant to emphasise the expedition
with which the representation must be considered and not
that it is a magical formula, the slightest breach of which
must result in the release of the detenu. Law deals with the
facts of life. In law, as in life, there are no invariable
absolutes. Neither life nor law can be reduced to mere but
despotic formulae. [655 B-C]
Pritam Nath Hoon v. Union of India and Ors. A. I. R.
1981 SC 92, Shanker Raju Shetty v. Union af India, W. P. 640
of 1980 decided on 26.6.80, Francis Coralie Mullin v. W.C.
Khambra, [1980] 2 S.C.R. 1005, referred to.
In the instant case the representation was despatched
on 5.2.1981 and was received in the office of the detaining
authority on 13.2.1981. It was put up before the detaining
authority on 19.2.81 and disposed of that very day. The
detaining authority was not available from 13th to 16th as
he had gone abroad. He returned on 16th and considered the
matter on 19th. There has not been any unaccountable or
unreasonable delay in the disposal of the representation by
the detaining authority. [655 D-G]
650
5. The note file shows that the detaining authority
also considered the question whether the alleged letter of
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retraction was posted. [656 B]
6. A reading of the entire counter-affidavit makes it
clear that in the opinion of the detaining authority
prosecution or no prosecution, the only effective way of
preventing the detenu from engaging himself in objectionable
activities was to detain him. [656 G-H]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 1745 of 1981.
(Under Article 32 of the Constitution of India.)
Ram Jethmalani and Miss Rani Jethmalani for the
Petitioner.
M.M. Abdul Khader and Miss A. Subhashini for the
Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. In this application under Art. 32
of the Constitution, we are concerned with the question of
the legality of the detention of Jahaubar Moulana under the
provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. On August 6,
1980, a car in which the detenu Jahaubar Moulana was
travelling was intercepted by Customs Officers near
Perumber-Kandigal diversion road on Tiruchirappalli-Madras
G.S.T. Road. On a search of the car, 768 Wrist watches of
foreign origin and 1560 semi-precious stones were found
ingeniously concealed in the panelling of the front doors
and the cavity between the petrol tank and the steel plate
covering the petrol tank. The goods which were valued at Rs.
2,95,188 were seized by the Customs Officers alongwith the
car. On 7.8.80 the detenu, Jahaubar Moulana, was
interrogated and a statement was recorded which incriminated
himself and others. He was taken before the Magistrate on
8.8.80 and was remanded to custody. He was granted interim
bail on 12.8.80 and the bail was finally confirmed on
16.8.80. On 14.8.80 the detenu claims to have sent a
communication addressed to the Assistant Collector of
Customs, Cuddalore, in which, according to him, he retracted
from the statement made by him on 7.8.80 and claimed that
the earlier statement had been obtained from him by
torturing him. According to the case of the detenu this
communication was sent by him under Certificate of posting.
Subsequently, on 31.10.80, Shri B.B. Gujral, Additional
Secretary to the Govt. of India, Ministry of Finance made an
order
651
of preventive detention against the detenu Jahaubar Moulana
under S. 3 (1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act. The order of
detention and the grounds of detention were served on
Jahaubar Moulana on 2.2.81. According to the respondent they
could not be served earlier as Jahaubar Moulana was not
available and was avoiding service and arrest. The detenu
made a representation on 4.2.81. The representation was
rejected by the detaining authority, Shri B.B. Gujral on
19.2.81.
Shri Ram Jethmalani, learned counsel for the detenu
urged that material documents upon which reliance was placed
in the order of detention were not supplied to the detenu
along with the grounds of detention and the detenu was
thereby prevented from making an effective representation.
He was thus denied the Fundamental Right afforded to him
under Art. 22 (5) of the Constitution. The two documents
which according to Mr. Jethmalani were not supplied to the
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detenu were (1) record of investigation revealing the trunk
telephone calls booked from Telephone No. 315 at Kila Karai
to telephone No. 27115 at Madras on 15.7.80, 18.7.80,
24.7.80, 26.7.80, 27.7.80, 29.7.80, 6.8.80, and 7.8.80; and
(2) record of investigation relating to the petrol which was
put into Jeep No. TMC 1850 owned by Shri Shamsuddin, brother
of the detenu.
In paragraph 4 of the grounds of detention it is
mentioned when premises No. 66, Malayappan St. Mannady,
Madras was being searched on 7.8.80, a telephone call was
received at telephone No. 27115 which was in the premises,
from telephone No. 315 Kila Karai enquiring about the
arrival of the detenu. The information about the call was
verified with reference to the record of trunk calls and it
was found that on the various dated mentioned trunk calls
had been booked from telephone No. 315 at Kila Karai to
telephone No. 27115 at Madras. The reference to the record
of trunk calls was made for the purpose of verifying the
trunk call which was received on 7.8.80 at telephone No.
27115 in the premises No. 66 Malayappan Street when the
Customs Officers were there. After carefully perusing the
grounds of detention we find it impossible to hold that the
record of trunk calls was one of the documents upon which
the detaining authority had relied in making the order of
detention.
The reference in the grounds of detention to the petrol
put into Jeep No. TMC 1850 was made in the following
circumstances.
652
Paragraph 5 of the grounds of detention refers to a
statement made by the detenu’s brother Shamsuddin on 20.9.80
in which he stated that his Jeep No. TMC 1850 has not been
used during the previous years and that it was kept locked
up in a garage. Paragraph 5 then recites that the
investigation showed that during the period between 1.6.80
and 5.8.80, on as many as 36 occasions petrol had been put
into the jeep at various petrol pumps. Here again we are
unable to say, on a perusal of the grounds of detention,
that the record of investigation relating to the petrol put
into the jeep was in any manner relied upon by the detaining
authority in making the order of detention.
Shri Jethmalani’s submission was that the detaining
authority was under an obligation to supply along with the
grounds, copies of all documents to which reference was made
in the grounds irrespective of whether such documents were
or were not relied upon in making the order of detention. He
submitted that the very fact that the documents were
mentioned in the grounds established that the documents were
relied upon in making the order of detention. We are unable
to agree with the submission of Shri Jethmalani. True, it
was observed in some cases that copies of documents to which
reference was made in the grounds must be supplied to the
detenu as part of the grounds (vide Smt. Shalini Soni v.
Union of India & Ors. But these observations must be read in
the context in which they were made. In Shalini Soni’s case,
for example, the observations were made immediately after
stating that "grounds" in Art. 22 (5) did not mean mere
factual inferences but meant factual inferences plus factual
material which led to such factual inferences. In Icchu Devi
Choraria v. Union of India the Court observed :
"It is difficult to see how the detenu can
possibly make an effective representation unless he is
also furnished copies of the documents, statements and
other materials relied upon in the grounds of
detention."
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The stress was upon the words "relied upon". In Khudiram Das
v. The State of West Bengal the Constitutional requirement
of Art. 22 (5) was stated as insistence that basic facts and
particulars which influenced the detaining authority in
arriving at the requisite
653
satisfaction leading to the making of the order of detention
must be communicated to the detenu so that the detenu may
have an opportunity of making an effective representation
against the order of detention. It is, therefore, clear that
every failure to furnish copy of a document to which
reference is made in the grounds of detention is not an
infringement of Art, 22 (5), fatal to the order of
detention. It is only failure to furnish copies of such
documents as were relied upon by the detaining authority,
making it difficult for the detenu to make an effective
representation, that amounts to a violation of the
Fundamental Rights guaranteed by Art. 22 (5). In our view it
is unnecessary to furnish copies of documents to which
casual or passing reference may be made in the course of
narration of facts and which are not relied upon by the
detaining authority in making the order of detention. In the
case before us we are satisfied that such were the two
documents, copies of which were not furnished to the detenu.
We are satisfied that the documents cannot be said to be
documents which were relied upon by the detaining authority
in making the order of detention. Therefore, the detenu
could not properly complain that he was prevented from
making an effective representation. There was no violation
of the right guaranteed by Art. 22 of the Constitution.
The next submission of the learned counsel for the
detenu was that although the detenu had retracted from his
alleged original statement dated 7.8.80 long before the
order of detention was made, the fact of such retraction was
not considered by the detaining authority before making the
order of detention. The plain and simple answer of the
respondents was that there was no such retraction as claimed
by the detenu. According to the detenu as soon as he was
released on bail, on 14.8.80, he addressed a letter to the
Assistant Collector of Customs, Cuddalore, retracting from
his former statement. This communication was sent under
Certificate of Posting, a photostat copy of which was
produced before us. In support of the claim that he had
retracted from his former statement and had communicated the
retraction under Certificate of Posting, the detenu invited
our attention to the reply sent by him to the show cause
notice issued by Collector of Customs under the Customs Act,
and to the representation made by him to the detaining
authority, in both of which he made a reference to the
alleged retraction. One curious feature which we must notice
is that the detenu sent to the detaining authority alongwith
his representation a photostat copy of the Certificate of
Posting but carefully refrained from sending a copy of the
letter of retraction
654
itself. This is indeed extraordinary. If the detenu was
serious in his request that his retraction should be
considered by the detaining authority while considering his
representation one would expect him to send a copy of the
letter of retraction alongwith his representation instead of
a copy of the certificate of posting. One cannot help a
suspicion that evidence was being brought into existence to
support the assertion that a letter of retraction was sent
on 14.8.80. The detaining authority has stated in the
counter that no such letter dated 14.8.80 was received by
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the Assistant Collector of Customs. The entire file has been
produced before us and on a perusal of the file we find that
a thorough search was made, not once but several times, to
find out if such a letter was received in the office of the
Assistant Collector of Customs, Cuddalore but no such letter
could be traced. The learned counsel urged that the
detaining authority was not competent to state that the
Assistant Collector of Customs had not received such a
letter and that it was for the Asstt. Collector to say so.
There is no force in this submission. The file produced
before us shows that the Asstt. Collector of Customs had
informed the detaining authority and the Collector of
Customs that he had made a thorough search for the letter
said to have been written on 14.8.80 and that no such letter
had been received in his office. We are satisfied that the
alleged letter of retraction was only a myth. The
certificate of posting might lead to a presumption that a
letter addressed to the Assistant Collector of Customs was
posted on 14.8.1980 and in due course reached the addressee.
But, that is only a permissible and not an inevitable
presumption. Neither Section 16 nor Section 114 of the
Evidence Act compels the Court to draw a presumption. The
presumption may or may not be drawn. On the facts and
circumstances of a case, the Court may refuse to draw the
presumption. On the other hand the presumption may be drawn
initially but on a consideration of the evidence the Court
may hold the presumption rebutted and may arrive at the
conclusion that no letter was received by the addressee or
that no letter was ever despatched as claimed. After all,
there have been cases in the past, though rare, where postal
certificates and even postal seals have been manufactured.
In the circumstances of the present case, circumstances to
which we have already referred, we are satisfied that no
such letter of retraction was posted as claimed by the
detenu.
Another submission of the learned counsel was that
there was considerable delay in the disposal of the
representation by the detaining authority and this was
sufficient to vitiate the detention.
655
The learned counsel submitted that the detaining authority
was under an obligation to adequately explain each day’s
delay and our attention was invited to the decisions in
Pritam Nath Hoon v. Union of India & Others and in Shanker
Raju Shetty v. Union of India. We do not doubt that the
representation made by the detenu has to be considered by
the detaining authority with the utmost expedition but as
observed by one of us in Francis Coralie Mullin v. W.C.
Khambra. "The time imperative can never be absolute or
obsessive". The occasional observations made by this Court
that each day’s delay in dealing with the representation
must be adequately explained are meant to emphasise the
expedition with which the representation must be considered
and not that it is a magical formula, the slightest breach
of which must result in the release of the detenu. Law deals
with the facts of life. In law, as in life, there are no
invariable absolutes. Neither life nor law can be reduced to
mere but despotic formulae. Considered in that light, can it
be said that there was an unreasonable delay in the present
case? The representation was despatched on 5.2.1981 and was
received in the office of the detaining authority on
13.2.1981. Apparently it was in postal transit from 5th to
13th. It was put up before the detaining authority on
19.2.1981 and disposed of that very day. From the records
produced before us we notice that the detaining authority,
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Shri B.B. Gujral, was not available from 13th to 16th as he
had gone abroad. He returned on 16th and considered the
matter on 19th. The learned counsel for the detenu urged
that the absence of the detaining authority from India
cannot be allowed to violate the fundamental right of the
detenu to have his representation considered with the utmost
expedition. We agree that in such cases appropriate
arrangements must be made for considering the detenu’s
representation. Apparently, it was not thought necessary in
the present case as Shri Gujral was returning on 16th, that
is, within a few days. After the 16th the delay, was for a
period of three days only. It can hardly be described as
delay though one wishes there was no room even for that
little complaint. We are of the view that there has not been
any unaccountable or unreasonable delay in the disposal of
the representation by the detaining authority.
The learned counsel for the detenu further submitted
that the detaining authority did not apply his mind to the
representation.
656
He argued that the representation made express reference to
the retraction and yet the detaining authority did not
enquire or send for the retraction which admittedly was not
available with him. We have already found that no letter of
retraction was sent to the Assistant Collector of Customs. A
perusal of the note file shows that the detaining authority
also considered the question whether the alleged letter of
retraction was posted. In the circumstances we are unable to
hold that there was non-application of mind by the detaining
authority.
Shri Jethmalani then submitted that the detaining
authority had failed to consider the question whether a
prosecution under the ordinary criminal law would not
suffice to prevent the detenu from indulging in the alleged
activities and whether preventive detention was necessary in
the circumstances of the case. Reliance was placed upon the
observations made by this Court in Kanchantal Maneklal
Chokshi v. The State of Gujurat & Ors. In the counter
affidavit filed by the detaining authority, Shri B.B.
Gujaral, it has been stated:
"Having regard to the nature of the activities in
which the detenu was engaged and after having applied
my mind very carefully to all the facts and
circumstances of the case and the material placed
before me, I arrived at the subjective satisfaction
that it was necessary to detain Shri Jahaubar Moulana
for preventing him from engaging in transporting
smuggled goods. The adjudication of the case under the
Customs Act and prosecution of the detenu are entirely
on a different footing. I say that the detention order
was passed by me with due care and after careful
consideration of all the materials placed before me".
The deponent may not have stated in express words that when
he made the order of detention he also considered the
question whether a prosecution under the ordinary criminal
law would not meet the situation and would not be sufficient
to prevent Jahaubar Moulana from engaging himself in the
objectionable activities. But a reading of the entire
counter affidavit makes it clear that in the opinion of the
detaining authority, prosecution or no prosecution, the only
effective way of preventing Jahaubar Moulana from engaging
himself in objectionable activities was to detain him.
657
Some other grounds were mentioned by the learned
counsel for the detenu but they were not pressed before us.
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In the result the Writ Petition is dismissed.
N.V.K. Petition dismissed.
658