Full Judgment Text
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PETITIONER:
HEMLATA KANTILAL SHAH
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT30/10/1981
BENCH:
ISLAM, BAHARUL (J)
BENCH:
ISLAM, BAHARUL (J)
SEN, A.P. (J)
CITATION:
1982 AIR 8 1982 SCR (1)1028
1981 SCC (4) 647 1981 SCALE (3)1657
CITATOR INFO :
R 1982 SC1029 (11)
R 1982 SC1165 (10)
R 1988 SC 227 (7)
R 1988 SC1256 (12)
RF 1990 SC 225 (8)
APL 1990 SC 231 (9,10,11)
R 1990 SC1446 (14)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974-Scction 8 (e)-Representation
of detenu by lawyer before Advisory Board-If could be
claimed as of right.
HEADNOTE:
Detaining authority gave grounds of detention-Whether
should also state the particular ground on which the detenu
was detained-Whether should state that certain metal is a
precious metal.
Delay in passing order of detention-Whether fatal to
the order of detention in all cases-Detaining a person under
preventive detention law instead of prose cutting him under
ordinary law-When permitted.
Confidential guidelines issued to oficials of
department-Whether have force of law.
Past conduct of detenu-If could be taken into
consideration in detaining an offender.
Procedure-Supreme Court and High Court-Jurisdiction
under articles 32 136 and 226 in preventive detention cases-
Courts if could substitute their own satisfaction for that
of detaining authority.
on their arrival at the airport from Muscat the Customs
Authorities apprehended the petitioner and her husband (the
detenu) and recovered 141 slabs of palladium (a precious
metal) each slab weighing one ounce, concealed in different
parts of their baggage. In his statement under section 108
of the Customs Act the detenu stated that he was smuggling
the metal because of the huge profit involved in it and that
he alone was responsible for the smuggling. He was detained
under the provisions of section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974
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In a petition under article 32 of the Constitution
filed by the detenu’s wife it was contended on behalf of the
detenu that: (I) arbitrary rejection of his request for
legal representation before the Advisory Board caused
serious prejudice to him; (2) as a result of the authority’s
refusal to give information on five out of six points asked
for by the detenu he was deprived of the opportunity to make
a proper representation; (3) there was no reason for
detaining him on June 6, 1981 although he was apprehended on
January 8, 1981 and this long
1029
delay had prejudiced his case: (4) on the facts and
circumstances of the case although prosecution was the
normal remedy he was unjustifiably detained under A the
COFEPOSA Act; and (5) failure of the authorities to follow
the guidelines framed by the Government rendered the
detention mala fide and discriminatory.
Dismissing the petition,
^
HELD :1. Section 8(e) of the Act does not bar
representation by a lawyer 1 but only lays down that the
detenu cannot claim representation by a lawyer as of right.
The Act has given the Board a discretion to permit or not to
permit representation of the detenu by counsel according to
necessity in a particular case. In the instant case after
the rejection of the request the Board reviewed his case and
gave its opinion on which alone the Government confirmed the
detention. [1033 G]
2(a) When a document containing the grounds of
detention is supplied to the detenu he is not entitled to
know which part or parts of the grounds was or were taken
into consideration by the detaining authority in detaining
him. lt will be for the Court to judge whether the facts
narrated constituted the grounds of detention or which facts
might possibly enter and influence the detaining authority
in coming to its subjective satisfaction. [1035 F-G]
(b) The question whether or not import of palladium is
prohibited is an information on a question of law and could
have been obtained by the detenu from the relevant statutes,
rules etc. The Government is not under any obligation to
furnish him with legal information which is available from
legal literature. The detaining authority is only required
to comply with the requirements of article 22(S) of the
Constitution. [1336 A-B]
(c) The plea that the detenu did not know whether
palladium was a precious metal is not a permissible plea on
the ground of public policy. Any detenu may plead that he
had no knowledge that gold or silver is a precious metal.
That apart, the detenu in his statement before the Customs
Authorities had stated that he purchased the metal from a
dealer in precious metals and that he had smuggled it to
make profit. Though not a prohibited article, it is a
dutiable article. [1036 E-F]
3. In passing a detention order, the authorities
concerned must have due regard to the object with which the
order was passed. Delay simpliciter in passing an order of
detention after an incident is not fatal to the detention.
In certain cases delay may be unavoidable and reasonable.
What is required by law is that the delay must be
satisfactorily explained by the detaining authority. Neither
has the detaining authority any liability to tell or satisfy
the detenu as to the causes of delay. It should satisfy the
Court that there was no infraction of the constitutional
provisions. In the instant case eleven statements of the
detenu and his wife were recorded on various dates between
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January 9, 1981 and April 7, 1981 and the order of detention
had been issued after the completion of the investigation.
[1037 C-D; 1038 A-B]
4. A prosecution or the absence of it is not an
absolute bar to an order of H preventive detention. If the
authority is satisfied that the offender has a tendency to
violate laws there will be no bar to detain a person under
the Preventive
1030
Detention Act in order to disable him to repeat such
offences. What is required is that the detaining authority
should satisfy the Court that it had in mind the question
whether prosecution was sufficient in the circumstances or
the case. In the instant case the detaining authority stated
that the prosecution under the ordinary law was not
sufficient for preventing the detenu from indulging in
similar activities in future. [1039 B-D
5(a) The guidelines issued by the Government, were of a
confidential nature and intended to guide the customs and
the intelligence officials and have no force of law. There
can be no valid complaint of discrimination in arresting and
bringing to book a particular offender under the Customs Act
or under any Preventive Detention Law. [1040 H]
(b) The past conduct or antecedent history of a person
can appropriately be taken into consideration in making a
detention order. In the instant case the detenu admitted
that he had a home in Bombay and business in Muscat; his
passport showed that he was moving between India and Muscat;
he smuggled palladium into India to make profit. The
detaining authority was well within its jurisdiction in
taking into consideration all these facts and subjectively
coming to the satisfaction whether or not he would be
repeating his activities.
[104] C-D]
6. The High Court under article 226 and this Court
either under article 32 or Article 136 of the Constitution
do not sit in appeal on the orders of preventive detention.
They have to see whether the formalities enjoined by article
22(S) have been complied with by the detaining authority and
if that has been done the Court cannot examine the materials
before it and find that the detaining authority should not
have been satisfied on the materials before it and detained
him under the Preventive Detention Act. That is the function
of an appellate court. [1041 F-H]
JUDGMENT:
ORIGINAL JURISDlCTlON: Writ Petition (Criminal) No.
3662 of 1981
(Under Article 32 of the Constitution of India)
Ram Jethmalani and Miss Rani Jethmalani for the
Petitioner.
O.P. Rana and R.N. Poddar for the Respondents.
The Judgement of the Court was delivered by
BAHARUL ISLAM, J. By this petition under Article 32 of
the Constitution of India, Smt. Hemlata Kantilal Shah
(hereinafter the ’wife’) has challenged the detention of her
husband Shri Kantilal Nagar Das Shah (hereinafter the
detenu) who was detained by the State of Maharashtra
(Respondent No. 1) by order dated June 3, 1981 under Sub-
section (1) of Section 3 of the Conservation of
1031
Foreign Exchange and Prevention of Smuggling Activities Act,
1974 A (hereinafter the ’Act"). The material facts on which
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the grounds of detention have been based may be briefly
stated as follows:
2. On January 8, 1981, the detenu with his wife and
their minor daughter, Miss Chaya Kantilal Shah, arrived in
Bombay from Muscat by Flight No. AI 883. The petitioner at
the customs clearance counter of the airport appeared
nervous and was hasty in clearing her baggage. The
Intelligence officer of the Air Customs Unit who had been
present at the counter on receipt of secret information kept
a close watch on her. When the family reported at the
customs counter, the Intelligence officer approached them
and asked for their passports. It was found that the detenu,
the petitioner and their daughter were all holding Indian
passports and were frequent travellers. When asked about the
contents of the baggages and for declaration in respect of
gold, watches, and other valuable items, the detenu replied
in the negative. The wife was asked to present her purse
which was kept in a corner of the Customs counter covered
with other pieces of baggage. In the said purse, one small
tobacco tin marked "Three Nuns" was found. The tin appeared
to be unusually heavy and as such the detenu was asked again
to declare the contents. The declaration was that the
contents were some coins and that the tin was to be
delivered to one Torahim in Bombay. Not being satisfied with
the reply, two independent panchas were called and in their
presence and in presence of the detenu and his wife, the tin
was opened and 48 slabs of ’Palladium’ metal each weighing
one ounce were found. The baggage was then thoroughly
examined in the presence of the detenu and his wife and the
panchas. The examination resulted in recovery of 93 more
slabs of ’Palladium’ concealed in cheese packets, and in
thermocol. Thus altogetller 141 slabs of ’Palladium’ valued
at Rs. 3,54,192.00 were recovered. They were seized by the
Customs officer.
3. The detenu and his wife were then led to their
residential premises of Flat No. 194, 19th floor, Persepolis
Apartment, Cuff Parade, Bombay-S, standing in the name of
the wife. The premises were searched under a search warrant.
The search resulted in the recovery of (I) Philips colour
T.V. valued at Rs. 18,00000;(2) Akai Video Cassettee
Recorder valued at Rs. 24,000; (3) Sharp 3-in-one Model
valued at Rs. 6,000,00 and (4) General Air Conditioner
valued at Rs. 15,000. All these articles were also seized by
the Customs officer.
1032
4. On the following day, the detenu made a statement
which was recorded under Section 108 of the Customs Act. The
detenu stated that he had been in Muscat for the last 40
years and had business of ready-made garments there; and
that he was a wealthy man with two wives named Hasumati and
Hemlata (the petitioner), The two wives were staying in
Bombay at Cuff Parade in separate apartments. The detenu
further stated that two months ago he had come to Bombay
where he had come to know from Zaveri Bazar that smuggling
of ’Palladium’ was a profitable business. He there fore had
purchased the 141 slabs of ’Palladium’ of one ounce each for
9000 omani Riyals from one Pursottam Kanji in Muscat who was
a dealer in precious metals. Before leaving Muscat for
Bombay, he had packed the 141 bars of Palladium in the three
containers aforesaid. The detenu also stated that the Sharp
3-in-one had been presented to him by His Highness Sultanbin
Hamed-Al-Said of Muscat in October, 1980, and that the other
three articles had been purchased by him from the Omani
Consul General, Mr. Salim Hakim. The detenu further stated
that he took full responsibility for the 141 bars of
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Palladium seized and his wife had nothing to do with them.
5. Mr. Ram Jethmalani, learned counsel appearing for
the petitioner makes the following submissions before us:
(I) The detenu asked for legal representation before
the Advisory Board by letter dated July 31, 1981
but it was arbitrarily rejected on August 3, 1981,
thereby causing serious prejudice to the detenu.
(II) After his detention, the detenu asked for six
particulars to enable him to make the
representation; only one particular was furnished
and five were refused by the authority by its
letter dated July 21, 1981 (Ex. A), thereby
depriving the detenu from making a proper
representation.
(III)The Government had framed guidelines in regard to
detention. The authority however did not follow
these guidelines in the case of the petitioner; so
the order of detention was mala fide and
discriminatory.
(IV) That the case of the petitioner is peculiarly a
case in which the prosecution was the normal
remedy; and
1033
(V) That the cause of detention arose on January 8,
1981 A in the airport and there was no reason for
the unusual delay in passing the order of
detention on June 6, 198 1 .
6. We now proceed to examine the contentions one by
one.
(I) Legal representation before the Advisory Board.
Learned counsel for the petitioner has placed before us
a copy of the letter dated July 31, 1981, addresed to the
Secretary, Advisory Board by the detenu’s counsel, Mr. G.L.
Ajwani. Mr. Ajwani referred to an earlier letter dated July
10, 1981, wherein he had requested, inter alia, for
permission to the detenu to be represented by an advocate
before the Advisory Board. The Secretary of the Advisory
Board sent a reply to Mr. Ajwani, who was informed that in
view of Section 8 (e) of the Act, the detenu "is not
entitled to appear before the Advisory Board by any legal
practitioner. The Advisory Board has not permitted a legal
practitioner to appear in any reference made to it under the
aforesaid Act and hence your request cannot be acceded to."
Section 8 (c) reads as follows:-
"For the purposes of sub-clause (a) of clause (4),
and sub-clause (c) of clause (7), of article 22 of the
Constitution,-
... ...
(e) a person against whom an order of detention has
been made under this Act shall not be entitled to
appear by any legal practitioner in any matter
connected with the reference to the Advisory
Board. .."
Section 8 (e) has not barred representation of a detenu
by a lawyer. It only lays down that the detenu cannot claim
representation by a lawyer as of right. It has given the
Board a discretion to permit or not to permit representation
of the detenu by counsel according to the necessity in a
particular case. Certain cases may be complicated and
assistance of lawyers may be necessary on behalf of the
parties to explain the facts and law involved in the case.
In the instant case, the submission is that the rejection of
the request of the detenus counsel by the advisory Board on
the ground that
1034
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in the past no legal representation had been allowed on
behalf of any detenu has been based on a misconception of
the law. We are unable to accept the submission of the
learned counsel on two grounds; (i) the Advisory Board whose
action is complained of is not a party before us; and (ii)
our decision on the point would be merely academic. It would
be academic because after rejection of the request, the
Board reviewed the case of the detenu and gave its opinion
whereupon the Government confirmed the detention.
(II) The second submission of learned counsel was with
regard to non-supply with particulars. Mr. Ajwani
aforesaid sent a letter (Ex. A) dated July 10,
1981 to , the Assistant Secretary to the
Government, Home Department (Special), Government
of Maharashtra. In that letter he requested the
Government to furnish six ’informations’ mentioned
in the letter. They were as follows:-
(1) The name and designation of the officer on
whose satisfaction the order of detention was
made and relevant authority under the rules
of business, enabling the said officer to
pass detention orders on behalf of the
Government.
(2) The date on which the proposal to detain was
received by the detaining authority.
(3) Whether facts mentioned in Para 3 of the
grounds of detention have been used against
the detenu for making the order of detention.
(4) The provision of law under which the import
of Palladium is prohibited.
(5) Whether the detaining authority has accepted
or rejected my client’s story about the
acquisition of colour T.V., Akai cassete
Video recorder, Air conditioner etc. If it
has been rejected, then the material on the
basis of which this decision was taken, and
(6) Whether any inquiries, if any, were made from
oman consulate or from consul General Mr.
Salim kim.’ ’
1035
Learned counsel submits that the "information’ sought
under A item (I) of the letter has been furnished and he has
no grievance about it. But none of the remaining five
’informations’ were furnished. The submission of learned
counsel is that the Government is bound to disclose under
which provision of law import of Palladium is prohibited;
their failure to disclose this ’information’ deprives the
detenu from making a proper representation.
Items 3, 5 and 6 are akin. With regard to item (3),
whether the facts mentioned in para (3) of the grounds of
detention were used against the detenu for making the order
of detention, Shri D.N.Capoor, Secretary to the Government
of Maharashtra, Home Department, in his counter affidavit,
has stated in paragraph 20 of the affidavit:
"...I have not passed the order of detention on
the ground that the four items seized from the detenu’s
house were smuggled. I say that I have mentioned the
seizure of the said goods in the grounds of detention
as narration of facts. I say that paras 3 and 4 of the
grounds of detention are the narrations of the fact and
the same is not a ground for detention..."
In our opinion the request of the detenu for the
information whether the detention was inter alia based on
the seizures of the four articles mentioned in para 3 of the
list of grounds and the reply of the authority to the
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request were irrelevant. When an order of detention together
with the grounds of detention is served on a detenu, the
detenu may ask for particulars on which a ground is based if
they are not already there. When a document containing what
are called "grounds" which often consist of the background
of a case, narration of facts and instances of the detenu’s
activities, is supplied to the detenu, the detenu is not
entitled to know which part or parts of the ’grounds’ was or
were taken into consideration and which not. The Court may
not take into consideration any reply given by the detaining
authority to such an enquiry; for, the reply may be an
afterthought. It will be for the Court to judge whether the
facts narrated constitute a ground of detention or which
facts might possibly enter and influence the detaining
authority in coming to its subjective satisfaction.
1036
The information sought as per clause (4) of the letter,
namely, the provision under which the import of Palladium is
prohibited is equally untenable. Whether or not the import
of Palladium is prohibited or not is an information on a
question of law and can be obtained from Statutes, Rules o}
Notifications. In our opinion, the Government is not under
any liability to furnish the detenu with legal information
available from legal literature. The liability of the
detaining authority is only to comply with the requirement
of Sub-Article (5) of Article 22 of the Constitution.
In this case, it appears from Schedule I, Appendix 2 to
the Imports (Control) order, 1955 (as amended upto March 31,
1980) that the articles mentioned against item 71.09 as
"Platinum and other metals of the platinum group, unwrought
or semi-manufac-tured" appearing under Chapter 71 under
which are mentioned ’Pearls, precious and semi-precious
Stones, precious Metals, Rolled Precious Metals, and
Articles thereof; Imitation Jewellery, Coin.’ In the counter
affidavit the detaining authority has stated that Palladium
is a precious metal belonging to the platinum group. The
submission of learned counsel is that the detenu even did
not know whether Palladium was a precious metal belonging to
the Platinum group and the Government’s failure to furnish
him with that ’information’ prevented him from filing a
proper representation. We are unable to accept this
submission, inasmuch as the pela is not permissible on the
ground of public, policy for, any detenu may plead that he
does not know whether gold or silver is a precious metal. Be
that as it may, the detenu stated in his statement that he
had purchased the palladium from the shop of a dealer in
precious metal at Muscat and that he had smuggled that metal
to make profits. Though palladium may not be a prohibited
article it is admittedly a dutiable article and it was
admittedly smuggled by the detenu.
(V) Delay
The submission of learned counsel is that the detenu
was arrested on January 9, 1981 but was detained on July 6,
1981. The submission is that this delay was fatal. In
support of his contention, learned counsel for the
petitioner cited before us three decisions of this Court
reported in A.I.R. 1974 S.C. 1264, A.l.R. 1974 s.C. 2066 and
A.I.R. 1975 S.C. 1408. in A.I.R. 1974 S.C. 1264, this Court
held that in passing a detention order, the authorities
concerned must have due regard to the object with which the
order
1037
was passed. If the object was to prevent disruption of
supplies of A foodgrains prompt action should be taken. In
the absence of any explanation regarding the delay, the
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order of detention, passed with a view to prevent disruption
of supplies of foodgrains on the grounds based on incidents
of removal of rice which took place about seven months
earlier, was invalid. In A.I.R. 1974 S.C. 2066 (supra),
there was inordinate delay and no proximity in point of time
between the alleged prejudicial activity of the petitioner
and the order of detention. The Court found that a period of
nine months had elapsed between the incident and the order
of detention; and as the delay of nine months in the making
of the order for detention after the alleged incident had
not been explained, order of detention was held to be
invalid. Delay ipso facto in passing an order of detention
after an incident is not fatal to the detention of a person,
for, in certain cases delay may be unavoidable and
reasonable. What is required by law is that the delay must
be satisfactorily examined by the detaining authority.
In the case in hand in the counter affidavit filed on
behalf of the detaining authority, it has been stated in
paragraph 16 as follows:-
" .the detenu was arrested on 9th January, 1981
and was detained on 6th July, 1981. Thereafter the
Customs Authorities carried on further investigation
aud as can be seen from the list of the statements and
documents annexed to the grounds of detention, 11
statements of the detenu including the statement dated
7th April, 1981 were recorded by the Customs
Authorities . .. I therefore say that there is no delay
in passing the order of detention as alleged by the
petitioner . the present order of detention has been
issued after completing the investigation."
From the foot of the document containing the grounds of
detention, it appears that the eleven statements of the
detenu and his wife were recorded on various dates between
January 9, 1981 C-: and April 7, 1981.
7. The submission of learned counsel is that his
grievance is not so much on the time lag or delay between
the date of arrest and the date of detention; his real
grievance is in not furnishing with the information as to
the cause of the delay so as to enable the detenu to file a
proper representation before the Advisory Board for its
1038
consideration. In our opinion, the submission is untenable.
The detaining authority is in no legal liability to tell or
satisfy the detenu as the causes of delay; it is under an
obligation to satisfy the court as to the causes of delay to
show that there was no infraction of the constitutional
provisions laid down under Sub-Article (S) of Article 22 of
the Constitution. In our opinion, the delay has been
satisfactorily explained by the authority in its affidavit
and it has not vitiated the detention.
8. (lV) PROSECUTION
The next point urged by Mr. Ram Jethmalani is that in
the instant case, the proper course for the Govermnent was
to prosecute and convict the detenu for the offence, if any,
for violation of the provisions of the Customs Act. In
support of his contention he cites a decision of this Court
reported in [1980] ; S.C.R. 54. In that decision, the Court
after reviewing a number of cases summarised the law as
follows:-
"The ordinary criminal process is not to be
circum- vented or short-circuited by ready resort to
preventive detention. But, the possibility of launching
a criminal prosecution is not an absolute bar to an
order of preventive detention. Nor is it correct to say
that if such possibility is not present to the mind of
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the detaining authority the order of detention is
necessarily bad. However, the failure of the detaining
authority to consider the possibility of launching a
criminal prosecution may, in the circumstances of a
case, lead to the conclusion that the detaining
authority had not applied its mind to the vital
question whether it was necessary to make an order of
preventive detention. Where an express allegation is
made that the order of detention was issued in a
mechanical fashion without keeping present to its mind
the question whether it was necessary to make such an
order when an ordinary criminal prosecution could well
serve the purpose, the detaining authority must satisfy
the Court that the question too was borne in mind
before the order of detention was made. lf the
detaining authority fails to satisfy the Court that the
detaining authority so bore the question in mind the
Court would be justified in drawing the inference that
there was no application of the mind by the detaining
authority to the vital question whether it was
necessary to preventively detain the detenu."
1039
9. The rule laid down is that a prosecution or the
absence of A it is not an absolute bar to an order of
preventive detention; the authority may prosecute the
offender for an isolated act or acts of an offence for
violation of any criminal law, but if it is satisfied that
the offender has a tendency to go on violating such laws,
then there will be no bar for the State to detain him under
a Preventive Detention Act in order to disable him to repeat
such offences. What is required is that the detaining
authority is to satisfy the Court that it had in mind the
question whether prosecution of the offender was possible
and sufficient in the circumstances of the case. In some
cases of prosecution it may not be possible to bring home
the culprit to book as in case of a professional bully, a
murderer or a dacoit, as witnesses do not come forward to
depose against him out of fear, or in case of international
smuggling, it may not be possible to collect all necessary
evidence without unreasonable delay and expenditure to prove
the guilt of the offender beyond reasonable doubt.
10. In the instant case it has been submitted by Mr.
Jethmalani that on the facts of this case, the prosecution
under the ordinary law would have been sufficient; resort to
preventive detention on the face of it was manifestly
unreasonable. In the counter affidavit it has been stated by
the detaining authority that it was aware that the detenu
was being prosecuted under the ordinary law; but it was
satisfied that the prosecution under the ordinary law was
not sufficient for preventing the detenu from indulging in
similar activities in future. This statement of the
authority satisfies the requirement of the rule laid down by
this Court hl [1980] I S.C.R. 54 (supra).
11.(III) The last submission of learned counsel was
that the detention was mala fide and discriminatory. The
submission WIS that it was opposed to the guidelines laid
down and publicised by the Government; under the said
guidelines, it was submitted, detention was not ordered
except when the activities of the person concerned were a
part of an organised crime involving conspiracy and
continued activities; the guidelines did not permit or
envisage detention for isolated act of contravention of the
Customs Law. In reply it has been stated in the counter
affidavit that the detaining authority was aware that the
detenu came to the adverse notice of the Customs Authorities
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for the first time in the smuggling incident dated 8th/
1040
9th January, 1981; that the activities of the detenu on the
basis of which prognosis was made was reasonably suggestive
of a repetitive tendency or inclination on the part of the
detenu to act likewise in future; that the order of
detention was essentially a precautionary measure and was
based on the reasonable prognosis of the future behaviour of
a person based on his past conduct judged in the light of
the surrounding circumstances. It has further been stated:
"Such past conduct may consist of one single act or of a
series of acts. I say that large quantum or Palladium metal
brought, the nature in which it was concealed coupled with
the detenu’s conduct in not disclosing the fact when
questioned by the customs authorities clearly demonstrate
potentiality for continued criminality and indicate previous
practice, experiment and expertise. In the given case even
the first act of this kind can be termed to be the beginning
of continuing criminal activity. I say in the present case
the nature of the act and its magnitude clearly justify an
inference that if the detenu was not detained he is likely
to indulge in commission of such acts in future. I say that
the detenu admitted in his statement dated January 9, 1981
that he wanted to smuggle the goods under seizure as he
wanted to sell the same in Bombay market and earn profit.
12. The past conduct or antecedent history of a person
can appropriately be taken into account in making a
detention order. It is indeed largely from prior events
showing tendencies or inclinations of a person that an
inference can be drawn whether he is likely in the future to
act in a manner prejudicial to the maintenance of supplies
and services essential to the community or his act of
violation of foreign exchange regulations and his smuggling
activities are likely to have deleterious effect on the
national economy.
13. With regard to the confidential guidelines, the
averment of the detaining authority in the counter affidavit
is that the guidelines given by the Government were secret
and confidential instructions which had no binding force;
but yet they were taken into consideration while passing the
order of detention.
The guidelines were necessarily of a confidential
nature and were intended to guide the Customs or
Intelligence officers as to how to act and what to do in the
detection and apprehension of smugglers. They do not have
any force of law; and there cannot be any valid complaint of
discrimination? if any, in arresting and bring-
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ing to book a particular offender under the Customs Act or
under A any Preventive Detention Law.
14, With regard to the inquiry of the detenu as to
whether the facts narrated in paragraph 3 in the document
containing the grounds of detention were taken into
consideration, it may be said with justification that
although paragraph 3 may not constitute an independent
ground of detention, there cannot be any objection if this
fact possibly entered into the subjective satisfaction of
the detaining authority before passing the order of
detention. The detaining authority had of necessity to take
into account all the relevant materials placed before it and
after due consideration thereof might justifiably come to
the conclusion that the activities of a particular person
were such that he had a tendency to repeat his illegal
activities. In the case in hand, the detenu himself admitted
in his confession that he has his home in Bombay and
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business in Muscat. His passport disclosed that he was
frequently shuttling between Muscat and India. Admittedly he
smuggled the palladium in question in order to make profit
by selling it to customers in India. The detaining authority
would be within its jurisdiction to take into consideration
all these facts and subjectively come to a satisfaction
whether or not the offender may be repeating his activities.
15. It is needless to say that the High Court under
Article 226 of the Constitution and the Supreme Court either
under Article 32 or under Article 136 of the Constitution do
not sit on appeal on the orders of preventive detention. The
normal law is that when an isolated offence or isolated
offences is or are committed, the offender is to be
prosecuted. But, if there be a law of preventive detention
empowering the authority to detain a particular offender in
order to disable him to repeat his offences, it can do so,
but it will be obligatory on the part of the detaining
authority to formally comply with the provisions of Sub-
Article (5) of Article 22 of the Constitution of India. The
High Court under Article 226 and the Supreme Court under
Article 32 has to see whether the formalities enjoined by
Article 22(5) have been complied with by the detaining
authority. If the formalities have been complied with, the
Court cannot examine the materials before it and find that
the detaining authority should not have been satisfied on
the materials before it and detained the detenu under the
Preventive Detention Act, for, that is the function of an
appellate Court
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16. In the instant case, we are not satisfied that the
detaining authority has violated either the relevant
provisions of the Constitution or any of the provisions of
the Act. This petition has no merit and is rejected.
P.B.R. Petition dismissed.
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