Bombay High Court High Court

Madhu Kamal Gyanchandani vs The State Of Maharashtra Through on 11 September, 2008

Bombay High Court
Madhu Kamal Gyanchandani vs The State Of Maharashtra Through on 11 September, 2008
Bench: Bilal Nazki, A.A. Kumbhakoni
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION




                                                                              
                 CRIMINAL WRIT PETITION NO.468 OF 2008




                                                      
    Madhu Kamal Gyanchandani,
    Age 46 years, r/o. B.N.No.1742,
    Room No.14, Near Tasildar Office,




                                                     
    Gandhi Road, Ulhasnagar-5, Dist.Thane.                              Petitioner

    Gyanchandani Kamal Shankarlal
             (Detenu)




                                              
               versus         
    1. The State of Maharashtra through
    the Secretary to the Government of Maharashtra,
                             
    Home Department, Mantralaya, Mumbai-32.

    2. Anna Dani, The Principal Secretary to
    the Government, Home Department,
           


    Mantralaya, Mumbai-32.
        



    3. The Superintendent of Prison,
    Mumbai Central Prison, Mumbai.

    4. The Superintendent of Prison,





    Nasik Road Central, Nasik.                                      Respondents

    Mrs.A.M.Z.Ansari for petitioner.
    Shri D.S.Mhaispurkar, APP for State.





                         CORAM : BILAL NAZKI AND
                                 A.A.KUMBHAKONI, JJ.

DATE OF RESERVING THE JUDGEMENT : 30th July 2008

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DATE OF PRONOUNCING THE JUDGEMENT : 11th September 2008

JUDGEMENT (PER : A.A.KUMBHAKONI, J.) :-

1. This Habeas Corpus petition is filed by Smt.Madhu Kamal

Gyanchandani, the wife of detenu : Mr.Kamal Shankarlal Gyanchandani

who has been detained in pursuance of detention order dated 28th January

2008 issued under The Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, 1974 (hereinafter referred to as “the said Act”

for short). The order of detention was served on the detenu on the same day

i.e. 28th November 2008 along with grounds of detention and the documents

relied by the detaining authority for issuing such a detention order.

2. The case of the detenu was referred to the Advisory Board which

interviewed the detenu and after considering the case of the detenu found

that there was sufficient cause for detaining the detenu under section 3(1) of

the said Act. Upon receipt of report/opinion of the Advisory Board, the

detention order has been confirmed under section 8(f) of the said Act. The

confirmation order was also served on the detenu.

3. By the present writ petition the sustainability of the detention is

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questioned on two grounds. First ground is as to the delay that has been

caused in issuance of the detention order which includes the delay caused

by the sponsoring authority in moving the proposal for detention. The

second ground is that a vital document was not placed before the Advisory

Board when the case of the detenu was referred to the Board, as required by

section 8(b) of the said Act. On this basis it is contended that such non

placement of a vital document has resulted into causing infringement of the

right of the detenu guaranteed under section 8 of the said Act and further

that the confirmation of the detention of the detenu therefore suffers from

non application of mind.

4. Before dealing with the grounds of detention of the detenu under

challenge, we may set out few facts that led to passing of the detention

order, which are reflected in the grounds of detention framed by the

detaining authority.

The detenu was intercepted at Mumbai Air-Port on 6th July 2007

when the detenu was proceeding to board a flight after completing his

immigration and custom formalities. A black colour zipper hand bag which

the detenu was carrying with him, when subjected to a detailed examination,

revealed that the detenu was carrying some assorted Foreign and Indian

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Currencies packed inside the inner lining of the hand bag. However, two

checked-in-baggages of the detenu did not reveal anything incriminating

articles except some readymade garments. Upon further questioning, the

detenu admitted that the detenu had some foreign currency concealed in his

rectum and volunteered to eject the capsules purported to contain foreign

currency. In presence of Panchas the detenu ejected two capsules from his

rectum which were found to contain 10 Euro Currency notes each of 500

denomination. In all foreign and Indian currency equivalent to Indian

Rs.8,26,631/- was recovered from the person and baggage of the detenu.

Accordingly, a seizure Panchanama was drawn up on 7th July 2007.

In the preliminary statement recorded on 7th July 2007 u/s 108 of

the Customs Act, the detenu admitted the knowledge, possession,

concealment, non-declaration, carriage, recovery and seizure of the

aforesaid Indian and Foreign Currency totally valued in Indian rupees at

8,26,631/-. The detenu disclosed further that the said currency was given to

him by one Mr. Harchandani Choith Nanikram who used to finance the trips

of the detenu abroad. The detenu further admitted to have taken currency

given by aforesaid Mr.Harchandani in similar manner by concealing in his

baggage and/or his person on his earlier trips abroad also.

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The detenu was arrested on 7th July 2007 and was released on

bail on 21st July 2007.

The detenu moved an application before the Additional Chief

Metropolitan Magistrate on 7th July 2007 retracting the statements naming

the aforesaid Mr.Harchandani as the master mind. The rebuttal application

to counter the retraction of the detenu was made by the department on 1st

August 2007. However, a show cause notice dated 22nd November 2007

was issued to the detenu and the aforesaid Mr.Harchandani who was also

made co-accused in the case.

It is alleged that the activities of the detenu fall under section

113(d) and (i) of Customs Act, 1962. It is further alleged that the detaining

authority was satisfied that unless detained, the detenu was likely to

continue to do the aforesaid activities and, therefore, it was necessary to

detain the detenu under the said Act with a view to prevent the detenu to do

said illegal acts.

5. As aforesaid, the first ground of attack on the detention of the

detenu is that an inordinate delay is caused in issuance of detention order,

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which includes delay caused by the sponsoring authority as well in moving

a proposal for the detention. For better appreciation of the said ground, we

set out hereunder the relevant chronology of dates and events.

6.7.2007 – The incident aforesaid occurred at Mumbai

Air-Port

7.7.2007 – The detenu was arrested in connection with
the said incident. The detenu gave voluntary statements

u/s 113 of the Customs Act and named Mr.Harchandani
as the master mind. The detenu also identified his

photograph.

On the same day, when produced before the
Additional Chief Metropolitan Magistrate, the detenu

moved an application retracting his statements naming
Mr.Harchandani as master mind and instead accused the
officers of inducing him to name Mr.Harchandani;

21.7.2007 – The detenu was released on bail;

1.8.2007 – Rebuttal application to counter the aforesaid
retraction was made by the department;

22.11.2007 – A show cause notice was issued to the

detenu as also Mr.Harchandani who was made a co-

accused;

16.7.2007 – Search of residential premises of
Mr.Harchandani was carried out and his statement was

recorded, who denied his involvement;

18.7.2007 – Search of detenu’s residential premises was
carried out;

23.7.2007 – The detenu sent a letter to the Joint

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Commissioner of Customs retracting his statement
recorded on 7th July 2007;

18.9.2007 – A proposal was prepared by the sponsoring

authority initiating an action of preventive detention
against the detenu under the COFEPOSA Act;

7.11.2007 – The proposal was forwarded to the Screening
Committee ;

7.11.2007 – The Screening Committee approved the
proposal

23.11.2007- The approval was received by the sponsoring
authority ;

26.11.2007 – The sponsoring authority forwarded the
proposal to the detaining authority;

4.12.2007 – The proposal was scrutinized by the
Assistant, Under Secretary from the office of detaining
authority;

8.12.2007 – The proposal was scrutinized by the Deputy

Secretary;

28.12.2007 – The detaining authority approved the
proposal and directed to issue detention order as also

personally formulated the draft grounds of detention;

7th January to 9th January 2008 – These grounds of
detention formulated by the detaining authority were
typed and endorsed by the Assistant, Under Secretary and

Deputy Secretary

10.1.2008 – The detaining authority approved the order of
detention and grounds;

23.1.2008 – The draft detention order, approved

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grounds, annextures etc. were submitted for signature of
the detaining authority ;

28.1.2008 – The detaining authority signed the order of

detention and issued the same;

28.1.2008 – The detention order was served on the
detenu along with grounds of detention etc..

– On the same day, report u/s 32 of the said Act was
forwarded to the Central Government;

27.2.2008 – The case of detenu was referred to the

Advisory Board u/s 8(b) of the said Act;

The Advisory Board interviewed the detenu and after
considering the case of the detenu found that there was
sufficient case for detention of the detenu;

10.3.2008 – Report of the Advisory Board was received
by the State. The same was thereafter processed by Under
Secretary, Deputy Secretary;

24.3.2008 – The Additional Chief Secretary (Home)

considered the report, opinion of the Advisory Board and
was pleased to confirm the detention order issued u/s 8(f)
of the said Act;

25.3.2008 – Confirmation order was issued;

28.3.2008 – The same was served on the detenu.

6. On behalf of the respondents affidavits have been filed not only

by the detaining authority but also by the sponsoring authority explaining

the steps that were taken in the present matter by each of them trying to

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justify that in the shortest possible time the impugned action was taken by

each of them and that there is no delay caused as alleged by the petitioner.

7. Inasmuch as the contention of the petitioner that the sponsoring

authority itself has caused delay in moving the proposal is concerned, the

aforesaid chronology of events demonstrates that the incident took place

between 6th and 7th July 2007 and a proposal was prepared by the sponsoring

authority on 18th September 2007 which was put up before the Screening

Committee on 7th November 2007. The Screening Committee appears to

have held a meeting on 7th November 2007 and approved the proposal in its

meeting. Thus, it is clear that the sponsoring authority prepared the

proposal after two months and twelve days of the incident. This period of

two and a half months has been explained by the sponsoring authority by

showing that it took various steps set out in the affidavit of the sponsoring

authority in the mean while between 7th July 2007 and 18th September 2007.

These steps taken were, such as : recording statements of the detenu, co-

accused Mr.Harchandani, Bharat Mehra (sub-agent of the travel agent

through whom the detenu had booked the air tickets), search conducted at

the residential premises of the aforesaid co-accused Mr.Harchandani as also

of the detenu.

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8. In the affidavit of sponsoring authority it is further stated as

under:-

” … … As per previous records of the Customs

Department, the detenu was found involved in
smuggling of dutiable goods at Chhatrapti Shivaji
International Airport, Mumbai on an earlier occasion
also when action against the detenu was taken for

violation of ITC and the Customs Act, 1962 vide case
F.No.Air/Cus-49/MIII/73/2007 dated 23.5.2007 and

fine and penalty was imposed by the Assistant
Commissioner of Customs, CSI Airport, Mumbai vide
Order dated 23/05/2007. The detenu’s further statement

was recorded on 14/11/2007 and the show cause notice
was issued to the detenu on 22/11/2007.”

9. In our view, the sponsoring authority has properly explained the

time of two months and odd days that it took in preparation of the proposal

for being forwarded to the Screening Committee. The affidavits shows that

the sponsoring authority was very much working on the case in the

meantime. It appears that the Screening Committee met on 7th November

2007 when this proposal was placed before it for approval. It is stated in the

affidavit of the sponsoring authority that the sponsoring authority received

the approval of the Screening Committee on 23rd November 2007. The

Screening Committee has approved the proposal on the very same day and

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forwarded it to the detaining authority, which the detaining authority has

received on 26th November 2007.

10. In this regard it cannot be overlooked that the detenu was

arrested on 7th July 2007 and was in the custody till 27th July 2007. Thus,

the detaining authority appears to have taken time of fifty and odd days to

prepare the proposal after release of the detenu. It also appears that the

sponsoring authority in the mean while applied for rebuttal of retraction of

statements by the detenu on 1st August 2007. After taking into consideration

the over all activities of the sponsoring authority and the time taken by it for

the same though it appears that it was possible for the sponsoring authority

to move the proposal at some what early date, we do not think that the

sponsoring authority has caused an inordinate delay in moving its proposal

for taking action against the detenu.

11. Now, turning to the alleged delay caused by the detaining

authority in issuing the detention order after receiving the proposal from the

sponsoring authority, what we observe from the aforesaid chronology is as

under.

The proposal was received by the detaining authority on 26th

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November 2007. The same was scrutinized initially at the level of

Assistant, then at the level of Under Secretary, then Deputy Secretary and

was put up before the sponsoring authority on 5th December 2007. The

sponsoring authority thereafter has considered the proposal and is said to

have personally formulated the draft grounds of detention and thereafter

having satisfied for the need to issue the detention order, has directed to

issue the detention order on 20th December 2007.

From 23rd December 2007 steps appears to have been taken for

clerical work and also for approval of the draft detention order, the grounds

of detention as also the final detention order, which, ultimately, came to be

issued on 20th January 2008. Thus the detaining authority has taken time of

just less than two months to issue the detention order after receipt of the

proposal from the sponsoring authority. Before we comment upon this

factual aspect of the matter we must recapitulate the legal aspect of the

matter, which now we do hereunder.

12. The Supreme Court in the case of Abdul Salam Vs. Union of

India reported in 1990 (3) SCC 15 in paragraph 14 has observed thus :

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This extract is taken from Abdu Salam v. Union of India, (1990) 3 SCC 15, at page 21 :

“14………………….In our view, the delay has been reasonably

explained. The courts have not laid down that on mere such
delay the detention has to be struck down. In Yogendra
Murari v. State of U.P.9
it is held that : (SCC p. 563, para 6)

“… it is not right to assume that an order of detention has to
be mechanically struck down if passed after some delay…. It
is necessary to consider the circumstances in each
individual case to find out whether the delay has been

satisfactorily explained or not.”

That apart, we are unable to agree with the learned
counsel that because of this delay the necessary nexus got
severed and that the grounds have become stale and

illusory. In appreciating such a contention, the court also
has to bear in mind the nature of the prejudicial activities

indulged by the detenu and the likelihood of his repeating
the same. It is this potentiality in him that has to be taken
into consideration and if the detaining authority is satisfied
on the available material then on mere delay as long as it is

not highly unreasonable and undue the court should not
normally strike down the detention on that ground. In
Hemlata Kantilal Shah v. State of Maharashtra10 it is held
that delay ipso facto in passing an order of detention after

an incident is not fatal to the detention of a person. For these
reasons we are of the view that in this case the delay by

itself does not invalidate the detention but even otherwise it
has been reasonably explained.”

(emphasis supplied)

The aforesaid observation of the Supreme Court shows that delay

‘ipso facto’ in passing an order of detention after an incident is not fatal to

the detention of a person involving in such an incident. The Court is

required to appreciate the potentiality in the detenu and/or the likelihood of

his repeating the alleged illegal activities.

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13. If we apply these principles to the facts of this case, it becomes

clear that (as pointed out by the sponsoring authority by its affidavit, the

relevant portion whereof is extracted by us hereinabove) it is not that the

detenu has committed the alleged illegal act for the first time on 6th/7th July

2007. What he did on 6th/7th July 2008 was just a repetition of something

that was done by him earlier also on 23rd May 2007, when the detenu was

caught. Even when an action was taken against the detenu on an earlier

occasion, within two months thereof, the detenu is alleged to have

committed a some what similar act.

Moreover the method and the manner in which the foreign

currency was allegedly concealed, as aforesaid, not only in the

accompanying zipper hand bag but also in the rectum by the detenu,

demonstrates the potentiality of the detenu of likelihood to repeat the same

prejudicial activity.

14. In this factual background of the matter, we are of the view that

the time of couple of months taken at the level of the sponsoring authority

or at the instance of the detaining authority in taking the impugned action

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can not be catagorised as ‘a delay caused’ in taking such an action of

detention and that it is fatal. There is nothing on record to show that even in

the aforesaid background of the potentiality and the propensity of the detenu

to again commit the same prejudicial activity again mere alleged delay has

resulted into severance of the necessary nexus as also making the grounds

of detention stale and illusory. For all these reasons we hold that the

detention order is not liable to be set aside on the mere ground of alleged

delay that has occurred in its issuance.

15. The second ground of attack of the petitioner on the detention of

the detenu, as aforesaid, is that on behalf of the detenu Advocate Ravi M.

Hirani had replied vide reply dated 27th February 2008, to the show cause

notice issued to the detenu by the Department. This reply was sent to the

Joint Commissioner of Customs, Mumbai. It is the contention of the

petitioner that this reply was not placed before the Advisory Board when the

matter of the detenu was referred to the Advisory Board, as required under

section 8(b) of the said Act. It is contended that this document was vital

and that it would have influenced the Advisory Board as also the

Confirming Authority in taking an action of confirmation of the detention.

On this ground, it is submitted that on account of such a non placement of a

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vital document, the right of the detenu u/s 8 of the said Act has been

infringed and that in any event, it has led to a non application of mind, both,

by the Advisory Board as also by the Confirming Authority in confirming

the detention.

This ground was not initially raised by the petitioner and,

therefore, the petition was sought to amend the present petition, which

amendment was permitted by us.

16.

In reply the fact that the aforesaid document in issue was not

placed before both the authorities is not disputed. On the contrary it is

contended on behalf of the respondents by learned APP that the aforesaid

documents i.e. reply to the show cause notice is not a vital document at all

and, therefore, it’s non placement before the Advisory Board as also the

Confirming Authority, cannot vitiate the confirmation of the detention of

the detenu. It was further contended that even otherwise, a perusal of the

said document shows only narration of facts which includes retraction of the

statements by the detenu, which fact has already been placed before both,

the Advisory Board as also the Confirming Authority. It was contended that

such non-placement of the document has not caused even otherwise any

prejudice to the detenu.

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17. Learned counsel appearing on behalf of the petitioner has placed

reliance on the following decisions in support of the aforesaid ground :-

I. 2000-All.MR (Cri)-1092 – (Smt.Nirmala Bharat
Keshwani Vs. The State of Maharashtra and
others);

II. AIR-1991-SC-1375 – (K.Satyanarayan Subudhi Vs.
Union of India and others);

III. An order of Supreme Court in Criminal Appeal
No.115 of 1986, dated 5th February 1986;

On the contrary, on behalf of the respondents, learned A.P.P. In

support of his case has relied on the following decisions :-

I. 2004(3)-Mh.L.J.-505 – (Kirti Kumar Narulla Vs.

State of Maharashtra nd others);

                II.       1997-ALL MR (Cri) - 528 - (Smt.Sharifa
                          Abubakar Zariwala Vs. The Union of India and
                          others);





                III.       AIR-1986-SC-687 - (Prakash Chandra Mehta Vs.
                          Commissioner and Secretary, Government of
                          Kerala and others);

                IV.        (1999)8-SCC-473 - (Ahamed Nassar Vs. State of





                          Tamil Nadu and others).


18. We have perused the documents which are supplied to the detenu

along with detention order. These very documents were placed before both,

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the Advisory Board and the Confirming Authority. This set of documents at

page 59 contains the retraction statement of the detenu. The very short hand

written retraction statement reads thus :-

Retraction of Statements

May it please your honour :-

It is prayed by the Accused that when he was
arrested by the officers of A.I.U. with Indian Currency
and Foreign Currency, he submitted the same belongs to

him. But at that time one of the I.A.S. Officers suggested
him that recently one person by name Harchandani

Choith Nanikram was arrested by same Department, he
should say that same belongs to him so he acted as per
advice of that officers, and implicated Harchandani

Chaitu Nanikram. In fact, he has nothing to do with the
seized currency belongs to accused.

So the accused retract his statement and

…………..(two words are not legible) the same as not
voluntered.

               Bombay                                          sd/- Kamal S.
               7-7-07                                            Accused"





19. It is pertinent to note that by this retraction statement what the

detenu has really retracted from his statement given u/s 108 of the Customs

Act, is that the co-accused of the detenu, aforesaid Mr.Harchandani, is not

concerned with the offence that the detenu has committed. By this

retraction the detenu has retracted the statements initially made by the

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detenu for roping in Mr.Harchandani. By this retraction the detenu has not

at all retracted the statements that were made by the detenu about his own

personal involvement in the alleged offence.

We are, therefore, of the view that this retraction by the detenu,

in any event, was not of any help to the detenu. At the highest, it would

help the aforesaid Mr.Harchandani, the co-accused of detenu. In any case,

admittedly this retraction was placed before the Advisory Board as also the

Confirming Authority.

20. A perusal of the aforesaid document in issue dated 27th February

2008 (i.e. the reply to the show cause notice issued by the advocate on

behalf of detenu, which, in submission of the detenu ought to have been

placed before the Advisory Board and the Confirming Authority) shows that

it contains all factual statements which are already on record and which also

form part of the show cause notice itself that was admittedly on record.

This reply in issue also refers to the retraction of statement by the detenu

and particularly states as under :-

“(5) Sir, during investigations, statements were
recorded and various questions were put, but my client
stated that currencies belong to him and same is

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reflected in para 31, page 12 of the S.C.N.”

Thus by this reply the detenu has admitted the currencies seized

belong to him and not to the said Mr. Harchandani. Thus the perusal of all

the relevant material on record in this regard gives a clear picture that both

the retraction as also the reply in issue (to the show cause notice) were

prepared as also issued only and only to shield and save, if possible, the co-

accused Mr. Harchandani ( the alleged master mind) even at the cost of

exposing the detenu.

21. In our view, the contents of this document dated 27 th February

2008 in issue show that there is nothing new in this document which was

not already on record and placed before either the Adevisory Board and/or

the Confirming Authority. In our view, therefore, non placement of this

document in issue has not caused any prejudice to the detenu and the said

document cannot be said to be a vital and material document, non placement

of which has or could have affected either the report of the Advisory Board

or the decision of Confirming Authority in confirming the detention of the

detenu.

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22. The three judgements relied upon by the petitioner do not apply

to the facts of this case inasmuch as in all the three cases relied upon by the

petitioner, the Court in the facts and circumstances of those cases found that

the documents which were not placed for consideration before the

respective authorities, were vital documents and, therefore, the order of

detention and its confirmation was held as vitiated for such non placement.

In our view, these judgements do not apply to the facts and circumstances of

this case.

23. On the other hand, the learned APP has correctly placed reliance

on the judgements delivered in the case of Sharifa Abubakar Zariwala

(supra) wherein in paragraph 13 it has been held that an enquiry was

necessary to be held by the Court as to whether the material which has not

been placed for consideration is vital from the point of view of recording of

satisfaction. In this judgement, further in paragraph 15, by placing reliance

on various Supreme Court decisions, it is concluded as under :-

“… … It does become clear from all the judgements of

Supreme Court relied on by the petitioner that in all the
judgements an area has been carved out for an enquiry
by the Court in each case to find out as to whether the
material that has been withheld from the detaining
authority and not considered by the detaining
authority, is vital and material for recording the

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subjective satisfaction … …”

As set out hereinabove, we have conducted this exercise and have

concluded that the document that was not placed before the Advisory Board

and the Confirming Authority, was not at all a vital document.

24. In the case of Prakashchandra Mehra (supra), the Supreme Court

in this regard in paragraph 77 has observed thus :-

“… … but in this case the confessional statement was not

the only fact upon which the detaining authority had
passed an order. In the premise, even if the confessional
statements which were retracted as such could not be
taken into consideration, there are other facts

independent of the confessional statement as mentioned
hereinabove which can reasonably led to the satisfaction

that the authorities have come to … …”

In the present case also, it is not that the Advisory Board or the

confirming authority has confirmed the detention of the detenu only on the

ground of show cause notice, the reply to which was not placed before

them. There was other material on record also, apart from the show cause

notice, which, in our view, will reasonably led to the satisfaction that these

authorities have come to. Even otherwise, as explained hereinabove, the

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reply to the show cause notice does not contain anything at all which is not

on record. In our view, this aspect of the matter also compels us to reject

this second ground taken up by the petitioner and the contentions raised in

this regard by the petitioner.

25. In case of Ahamed Nassar (supra), the Supreme Court has

explained the object and purpose of the said Act in paragraphs 31 to 37

wherein it is observed thus :-

This extract is taken from Ahamed Nassar v. State of T.N., (1999) 8 SCC 473, at page 490 :

33. So this “Act” is brought in for the conservation and
augmentation of foreign exchange and for the prevention of
smuggling. This became necessary as there were large-scale

violations of foreign exchange regulations and increasing
smuggling activities affecting the national economy. In other

words, it was brought in to prevent such clandestine
activities by detaining such person.

34. In order to achieve this objective, in the national interest
an obligation is cast on the State even to curtail the most

sacred of the human rights, viz., personal liberty. The source
of power to curtail this flows from Article 22 of the
Constitution of India within the limitation as provided
therein. ………………………………………..
…………………. The protection of life and personal liberty
enshrined in Article 21 itself contains the restriction which

can be curtailed through the procedure established by law,
which of course has to be reasonable, fair and just. Article 22
confers power to deprive of the very sacrosanct individual
right of liberty under very restricted conditions. Sub-clauses
(1) and (2) confer right to arrest within the limitations
prescribed therein. Sub-clause (3) even erases this residual

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protective right under sub-clauses (2) and (3) by conferring
right on the authority to detain a man without trial under the

preventive detention law. This drastic clipping of right is for
a national purpose and for the security of the State.

35. ……………..

36. Thus courts must first find, the extent of the individual
right deciphering with the degree of trespass it makes on the
public right, on which there is embargo. Where an individual
acts clandestinely for his personal gain against the national

interest deleteriously affecting the national economy or
security the drastic curtailment of his right should be kept in
mind to see that no such person escapes from the clutches of
law. On the one hand, as it takes away one’s liberty it should
be strictly construed, on the other hand to subserve the

objective of this Act, in the national interest it should be seen
that no such person escapes.

37. In this backdrop of the constitutional scheme, the
Preamble as also the Objects and Reasons of COFEPOSA we
have to scrutinize and test the justiciability of the acts of
every statutory functionary performing statutory obligations

under the Act. It is well settled that whenever there are two
possible interpretations of a statute, the one that subserves
the objective of an enactment is to be accepted. The same
principle shall with equal force apply in testing the credibility
of the acts of a statutory functionary performing its statutory

obligations. Such authorities, while performing their
obligations under the preventive detention law must perform

it on one hand with promptness, as not to further lengthen
the detenu’s detention through their casual conduct, neglect,
lethargy, etc., on the other hand all what is required to be
done by it if it has been done then in construing its conduct,

conclusions etc. If there be two possible interpretations then
the one that subserve the objective of the statute should be
accepted.

(Emphasis our)

26. Thus, keeping in mind the object and purpose of the said Act, in

the light of the aforesaid factual aspects of the matter, we are unable to

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agree even with the second ground raised by the petitioner for impugning

the detention order in the present case.

27. No other point was argued and/or pressed on behalf of the

petitioner, nor do we find in this case any other point warranting an

interfere with the detention of the detenu effected in pursuance of the order

of detention dated 28th January 2008 bearing no. PSA-1207/CR-227/SPL-

3(A) issued for detaining Mr.Gyanchandani Kamal Shankarlal. Thus we are

left with no other alternative but to dismiss this petition, which we hereby

do.

28. Rule discharged.

(BILAL NAZMI, J.)

(A.A.KUMBHAKONI, J)

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