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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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9justify 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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108. 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 forviolation of ITC and the Customs Act, 1962 vide case
F.No.Air/Cus-49/MIII/73/2007 dated 23.5.2007 andfine and penalty was imposed by the Assistant
Commissioner of Customs, CSI Airport, Mumbai vide
Order dated 23/05/2007. The detenu’s further statementwas 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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11forwarded 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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12November 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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13This 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 beensatisfactorily 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 andillusory. In appreciating such a contention, the court also
has to bear in mind the nature of the prejudicial activitiesindulged 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 isnot 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 afteran incident is not fatal to the detention of a person. For these
reasons we are of the view that in this case the delay byitself 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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1413. 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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15can 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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16vital 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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1717. 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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18the 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 tohim. But at that time one of the I.A.S. Officers suggested
him that recently one person by name HarchandaniChoith 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 HarchandaniChaitu 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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19detenu 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::: Downloaded on – 09/06/2013 13:50:33 :::
20reflected 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
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22subjective 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 factsindependent of the confessional statement as mentioned
hereinabove which can reasonably led to the satisfactionthat 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-scaleviolations of foreign exchange regulations and increasing
smuggling activities affecting the national economy. In otherwords, 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 mostsacred 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 whichcan 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::: Downloaded on – 09/06/2013 13:50:33 :::
24protective right under sub-clauses (2) and (3) by conferring
right on the authority to detain a man without trial under thepreventive 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 nationalinterest 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 theobjective 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 obligationsunder 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 statutoryobligations. Such authorities, while performing their
obligations under the preventive detention law must performit 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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