PETITIONER:
PRAKASH CHANDRA MEHTA
Vs.
RESPONDENT:
COMMISSIONER AND SECRETARY GOVERNMENT OF KERALA & ORS.
DATE OF JUDGMENT12/04/1985
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION:
1986 AIR 687 1985 SCR (3) 697
1985 SCC Supl. 144 1985 SCALE (1)813
CITATOR INFO :
RF 1986 SC2177 (47)
D 1987 SC1192 (12)
RF 1988 SC 723 (9)
F 1990 SC 176 (28)
RF 1990 SC 605 (11,12)
RF 1990 SC1272 (11)
D 1991 SC1375 (4)
ACT:
Constitution of India 1950 Act. 22 Cls. (4) & (5)-
Preventive detention-Permissibility of-Safeguards to be
followed by the detaining authority-Rights of detenu-What
are-Grounds for detention-What are
Conservation of foreign Exchange and Prevention of
smuggling Activities Act 1974 SS 3 and 5A-Detention-Grounds
of detention-Communication in a language understood by the
detenu at the earliest-Afford the detenu an opportunity to
make a representation-Confession statements under s 108 of
the Customs Act 1962-Retraction by detenu-Non-consideration
by detaining authority but considered by Advisory Board-
Whether vitiates detention
Words & Phrases-Meaning of
" Grounds" -Content of in detention order-Not mere
factual inferences plus factual material-Constitution of
India 1950 Article 2 (5).
HEADNOTE:
The petitioner in his three writ petitions under Art.
32 challenged the detention orders made against his father,
sister and brother under the Conservation of Foreign
exchange and Prevention of Smuggling Activities Act 1974.
On the basis of intelligence reports, the customs
officials searched the room of the Hotel where father and
daughter-Venilal D. Mehta and Pragna Mehta were staying. The
search led to the recovery of 60 gold biscuits of foreign
origin from the suit case belonging to the daughter. Since
both of them had no valid document to prove the nature Or
import of the gold biscuits to..
698
India and for their legal possession, there was
contravention of the Customs Act, 1962 and the Gold Control
Act, 1960, and, therefore, liable for confiscation. Both
were arrested and statements recorded.
In the meanwhile Bharat Mehta, another son of the
father, -detenu who had come from Calcutta to arrange for
bail was arrested on 4th May 1984 by the Central Excise and
Customs Officials after his room in the Hotel, was searched
and Indian currency notes amounting to Rs. 24,865 were
seized, which he allegedly had brought for meeting the legal
expenses for securing release of his father and sister on
bail. All the three were remanded to jail custody. They
retracted their statements made before the Central Excise
and Customs Officers alleging that they were made at the
dictates of the customs officers.
Pragna Mehta was served with a detention order under
the Conservation of foreign Exchange and Prevention of
Smuggling Activities Act 1974 under s. 3(1) (iii) on 20th
June 1984 and was served with the grounds of detention in
English language. Hindi translation of the grounds of
detention was served on 30th June, 1984. Venilal Mehta and
his son Bharat Mehta were served with detention orders under
s. 3(1) (iii) and (iv) of the Act on 20th June, 1984 and on
1) 25th June, 1984 the grounds of detention were also served
on them. The grounds of detention were in English language
while some of the accompanying documents were in Malayalam.
The detenus made representations for the revocation of their
detention. They appeared before the Advisory Board on 6th
August, 1984. The advisory Board reported that there was
sufficient cause for detention of the detenus and
accordingly the Govt. confirmed their detention Orders on
13th August, 1984.
All the three detention orders have been challenged
contending: (1) that the grounds were not communicated to
the detenus in a language understood by them, (2) that the
retraction of the confessions or statements made under s.
108 of the Customs Act, 1962 had not been taken into
consideration, (3) that there was delay in serving the
grounds upon the detenus, (4) that the detenus were not
allowed to be represented properly before the Advisory
Board, (5) that the fact of retraction of the confessions
having not been taken into consideration the proceedings
were vitiated, and (6) that the detaining authority did not
independently consider the representations of the detenus
but mechanically followed the advice of the Advisory Board.
Dismissing the Petitions,
^
HELD: 1. The procedural safeguards have been complied
with as far as practicable. There are no merits in the
fancied grievances of the detenus .[732]
2. Article 22 of the Constitution ensures protection
against arrest and detention except in certain prescribed
circumstances and conditions. Art. 22(4)
699
stipulates that no law providing for preventive detention
shall authorise the detention of a person for a longer
period than three months unless (a) Advisory Board has
reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for
such detention and (b) such person is detained in accordance
with the provision of any law made by the Parliament under
sub-cls. (a) and (b) of cl. (7). [618D-G]
Clause (5) of Art. 22 provides that the grounds of
detention must be communicated to the detenu as soon as may
be and that he should be afforded the earliest opportunity
of making a representation against the order. There. fore,
it must follow as an imperative that the grounds must be
communicated in a language understood by the person so that
he can make an effective representation. [719; 72013-C]
Harikisan v. The State of Maharashtra & Others, [1962]
2 Supp. SCR 918. C
In the instant case, the facts revealed that the detenu
Vanilal Mehta was constantly accompanied and was in the
company of his daughter as well as his son-both of whom knew
English very well. The father signed his mercy petition in
Gujrati which was written in English, accepting the guilt of
his involvement in smuggling. There is no rule of law that
common sense should be put in cold storage while considering
constitutional provisions for safeguards against misuse of
powers by authorities though these constitutional previsions
should be strictly construed. He was in any event given by
30th June 1984 the Hindi translation of the grounds of which
he claimed ignorance. The gist of annexures which were given
in Malayalam language had been stated in the grounds. That
he does not know anything except Gujrati merely ipse dixit
of father -detenu and is not the last word and the Court is
not denuded to its powers to examine the truth The Court is
not the place where one can sell all tales. The detaining
authority came to the conclusion that he knew both Hindi
and English. It has been stated so in the counter-affidavit.
The circumstances indicate that father -detenu was merely
feigning ignorance of English
[720C-H; 720 A-B]
In the instant case, the grounds were given on 20th
June, 1984 following the search and seizure of gold biscuits
from room of detenu Venilal Mehta in the Hotel in his
presence and in the background Or the mercy petition, he was
in constant touch with his daughter and sons and there is no
evidence that these people did not know Hindi or English.
Indeed they knew English as well as Hindi. It is difficult
to accept the position that in the peculiar facts of this
case, the grounds were not communicated in this sense the
grounds of detention were not conveyed to the detenu
Venilal. Whether grounds were communicated or not detenu
upon the fact and circumstances of each case. [712 D-F]
Hadibandhu Das v. District Magistrate, Cuttack & Anr.
[1969] 1 SCR 227, Nainmal Partap Mal Shah v. Union of India
and Ors [1980] 4 SCC 427 and Ibrahim Ahmad Batti v. State of
Gujrat & ors. [1983] 1 SCR 540 distinguished.
700
4 Article 22(5) of the Constitution has two elements
(i) communication of the grounds on which the order of
detention has been made and (ii) opportunity of making
representation against the order of detention. Communication
of the grounds pre-supposes the formulation of the grounds
and formulation of the ground requires and ensures the
application of the mind of the detaining authority to the
facts and materials before it that is to say to pertinent
and proximate matters in regard to each individual case and
excludes the element of arbitrariness and automatism. [725E-
G]
5. The "ground." under Art 22(S) of the Constitution do
not mean mere factual inferences but mean factual inferences
plus factual material which led to such factual inferences
The concept of'grounds'., therefore' has to receive an
interpretation which will keep it meaningfully in tune with
the contemporary notions of the realities of the society and
the purpose of the Act in question in the light of concepts
of liberty and fundamental freedom guaranteed by Art. 19(1)
21 and 22 of the Constitution[725-H; 726 A-B]
Smt. Shalini Soni Etc. v. Union of India & Ors. [1981]
1 SCR 962 relied upon.
6. A democratic Constitution is not to be interpreted
merely from a lexicographer's angle but with a realisation
that it is an embodiment of the living thoughts and
aspiration of a free people. The concept of "grounds" used
in the context of detention in Art. 22(5) of the
Constitution and in sub s. (3) of s.3 of COFEPOSA therefore
has to receive an interpretation which will keep it
meaningfully in tune with a contemporary notion. While the
expression "grounds" for that matter includes not only
conclusion of facts but also all the "basic facts" on which
those conclusions were founded, they are different from
subsidiary facts or further particulars or the basic
facts.[726C-E]
Hasmukh S/o Bhagwanji M. Patel v. The State Of Gujarat
JUDGMENT:
In the instant ease the grounds of detention is the
satisfaction of the detaining authority that with a view to
preventing the detenu from acting in any manner prejudicial
to the conservation or augmentation of foreign exchange or
with a view to preventing the detenu from inter alia,
dealing in smuggled goods otherwise then by engaging in
transporting or concealing or keeping the smuggled goods or
engaging in transporting or concealing or keeping smuggled
goods the detention of the detenu us necessary This
satisfaction was arrived at an inferences from several
factors. One of them is that the retraction from the
statements made in the confession or statements under s. 108
of the Customs Act had not been taken into consideration by
the detaining authority while passing detention order. The
question is whether even if the facts stated in the
confession are completely ignored then the inferences can
still be drawn from other independent and objective facts
mentioned in this
701
case , namely , the fact of seizure of 60 gold biscuits
from the suitcase of the daughter in the presence of the
father which indubitably belonged to the father and admitted
by him to belong to him for which no explanation has been
given and secondly the seizure of the papers connected with
other groups and organisations to whom gold has been sold by
the father are relevant grounds from which an inference can
reasonably be drawn for the satisfaction of the detaining
authority for detaining the detenus for the purpose of Sec.
3(1) (iii) and 3(1)(iv) The impugned order cannot be
challenged merely by the rejection of the inference drawn
from confession. [726E-H; 727A-C]
7.(i) The Court is not concerned with the sufficiency
of the grounds. It is concerned whether there arc relevant
materials on which a reasonable belief or conviction could
have been entertained by the detaining authority on the
grounds mentioned in s. 3(1) of the Act. Whether other
grounds should have been taken into consideration or not is
not relevant at the stage of the passing of the detention
order. If that in the position then in view of s. 5A of the
Act there was sufficient material to sustain this ground of
detention. [727D-E]
(ii) When detention under s. 3 Or the Act is only for
the purpose of prevention of smuggling and all the grounds ,
whether there are one or more , would be relatable only to
various activities of smuggling and no other separate ground
which could deal with matters other than smuggling could be
conceived of because the act of smuggling covered several
activities each forming a separate ground of detention and
the Act dealt with no other act except smuggling , Whenever
allegations of smuggling were made against a person who was
sought to be detained for preventing further smuggling there
is bound to be one act or several acts with the common
object of smuggling goods which was sought to be prevented
by the Act.’ It would , therefore , not be correct to say
1 that the object of the Act constituted the ground for
detention. In the instant case , however , the authorities
concerned came to the conclusion that the detenus were
engaged in smuggling , in support of the same they relied
on several factors namely: (1) the search and seizure and
recovery of 60 gold biscuits , (2) the fact that the
importation of the 60 gold biscuits could not be explained
by the detenu Venilal , (3) the secretive manner in which
the said gold biscuits were kept and (4) the connection with
the various dealers and the statements of the employees of
the dealers that the father and the sons used to come with
gold bars. These materials were in addition to the
statements and concessions made under s. 108 of the Customs
Act by the father , the sons and the daughter. So even if
the statements made by the n are ignored and obliterated ,
the other facts remain and these are- good enough materials
to come to prima facie belief that detention of the detenus
was necessary.
State Or Gujrat v. Chamanlal Manjibhai Soni [1981] 2
SCR 500 followed.
In the instant case , there was no request for
consultation with the Advocate. There is no case of non-
production of the detenu in spite of intimation by the
Advocate to the Customs Officers before a Magistrate. The
confessional statement was not the only fact upon which the
detaining authority had passed an order. In the premises
even if the confessional statements which were ret-
702
racted as such could not be taken into consideration ,
there are other facts independent of the confessional
statement which can reasonably lead to the satisfaction that
the authorities had come to. [729E-G]
Ashadevi , wife of Gopal Chermal Mehta (Detenu) v. K.
Shiveraj Addl. Chief Secretary to the Government of Gujrat &
Anr. [1979] 2 SCR 215 , distinguished.
In the instant case , there was no delay in serving
the grounds upon the detenus. The father-detenu was detained
on 20th June , 1984. As required under s.8 (3) of the Act ,
the case of the detenu was referred to the Advisory Board on
18th July , 1984. The representations submitted by the
detenu were also forwarded to the Advisory Board for
consideration. The services of two persons were utilised by
the Board in understanding the statement of the detenu and
deciphering the representation in Gujrati submitted by
detenu Venilal Mehta to the State Government which was also
forwarded to the Board. Therefore , it cannot be said that
detenus have not been given proper facility to be
represented before the Advisory Board. Tee allegation that
the detaining authority did not independently consider the
representation of the detenu but mechanically followed the
opinion of the Advisory Board cannot be sustained in view of
the fact and circumstances of this case.[759H; J30 A-D]
&
CRIMINAL ORIGINAL JURISDICTION : Writ petition
(Criminal) NOS.1721 , 1722 and 1724 of 1984.
Under Article 32 Of the Constitution of India.
P. Govindan Nair , G.L. Sanghi , Farook M. Razaak and
H.K. Puri for the Petitioners.
T.S. Krishnamurthy Iyer and E.M.S. Anam for Respondent
Nos. 1 and 2.
N.C. Talukdar and , R.N. Poddar for the Respondent
NO.3.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI , J. One allegedly Venilal D.
Mehta is the father. Miss Pragna Mehta is the daughter and
Bharat Mehta is the son. They all have been detained under
the Pro visions of Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act , 1974 (hereinafter
referred to as the ‘Act’) , by virtue of an order dated
19th June , 1984.
703
Their detentions are challenged in three writ petitions
under Article 32 of the Constitution , filed by Prakash
Chandra Mehta , another son of Venilal D. Mehta and brother
of Miss Pragna Mehta and Bharat Mehta.
The facts of these cases basically more or less are the
same with certain minor variations which would be noticed.
On the 2nd May , 1984 , the father and daughter
Venilal D. Mehta and Pragna Mehta were arrested by the
officers of the Central Excise and Customs , Cochin on all
accusation of having in their possession 60 gold biscuits
alleged to be of foreign origin. After their arrest , the
father and his daughter were taken to the office of the
Central Excise and Customs , Cochin where statements were
made on their behalf. It is , however , the allegation of
the petitioner that such statements were obtained by use of
third degree method , molestation of the daughter , threat
and intimidation. We are not concerned with the truth or
otherwise of such allegation for the purpose of this
application. The statements of the daughter as well as the
father were written by the daughter. It is further alleged
in the petition that the statement was written by the
daughter as dictated by the officers concerned. The father ,
Venilal D. Mehta put his signature in English as ‘Balvant
Shah’. It must be noted that statement in English was
written by the daughter. lt is alleged that the father and
the daughter told the officers concerned that the correct
name of the father was Venilal Mehta. It is the case of the
father in the petition on his behalf that he does not
understand , read or speak or write English but he can only
sign his name in English. After the said statement. the
father and the daughter were taken to the Hotel Dwarka where
they were kept in separate rooms under the guard of the
officers. [t is alleged on behalf of the father and the
daughter that no legal assistance was allowed in spite of
repeated requests.
On the next day , the father and the daughter were
brought to the office of the Central Excise and Customs ,
Cochin , where once again , the daughter wrote a statement
on her behalf and on behalf of her father. It is alleged
that neither the said statement was explained to the father
nor a copy was supplied. After the said recording of the
statement , both the father and the daughter
704
were kept detained at the Customs Department.
In the meanwhile one Bharat Mehta , another son of the
father Venilal Mehta who had come from Calcutta to arrange
for bail was brought under arrest by the officers of the
Central Excise in the presence of the father and was asked
to identify the father and his sister whereupon Shri Bharat
Mehta identified Shri Venilal D. Mehta as his father and
Miss Pragna Mehta as his sister. Upon such identification ,
Miss Pragna Mehta wrote down a third statement-one on behalf
of her father and one on her own behalf. It is alleged that
such statements were dictated by the officers of the Central
Excise.
Bharat Mehta also wrote down a statement on his behalf
which is similarly alleged to have been written as dictated
by the officers. Then all the three aforesaid persons
Venilal D. Mehta , Miss Pragna Mehta and Bharat Mehta were
produced before the Acting Chief Judicial Magistrate on 5th
May , 1984 at 8. 30 P.M. at his residence at Vanala and
were reminded to jail custody.
So far as Bharat Mehta is concerned , on 2nd May ,
1984 , he was in Calcutta and he was informed by his
brother from Bombay that his father Venilal Mehta and his
sister Pragna Mehta had been arrested and upon hearing that
he left for Bombay and arrived in Bombay by the evening
flight. On the following day i. e. On 3rd May. 1984 ,
Bharat Mehta left on the morning flight for Cochin for
arranging bail for his father and sister. At the Cochin
Airport , he was apprehended by the officers of the Central
Excise who desired to interrogate him and was thereupon
brought to the office of the Central Excise and was
interrogated about his complexity in the smuggling of gold.
According to Bharat Mehta , as he had nothing to do with
the smuggling of gold , he denied having any connection
with the same. Thereafter he was allowed to go. On 4th May
, 1984 the room in the Indian Airlines Hotel. Ernakulam
where he was staying was searched by the officers of the
Central Excise and Customs. Though Bharat Mehta states that
nothing incriminating was found , the Custom Authorities
had seized Indian currency notes amounting to Rs. 24,865
which sum , he alleged to have brought for meeting the
legal expenses. Thereafter , he was arrested and taken to
identify his
705
father and sister as mentioned hereinbefore.
When all the three were remanded to jail custody , the
father , the daughter and the son retracted their
statements. They made complaints to the Collector of Central
Excise and Customs about the manner in which their
statements were obtained. Application for bail was moved on
7th May , 1984 before the learned Acting Chief Judicial
Magistrate Miss Pragna Mehta was allowed interim bail till
7th May , 1984. On 8th May , 1984 the bail application was
rejected. After the cancellation of her bail application ,
Pragna Mehta moved an application under section 439 of the
Code of Criminal Procedure , 1973 before the Kerala High
Court and the High Court was pleased to grant bail on
certain conditions. She was served with the detention order
on 20th June , 1984 , and the detenu was served with the
grounds of detention in English language. Hindi translation
of the grounds of detention was served on , the detenu on
30th June , 1984.
The father’s bail application was , however ,
rejected by the Kerala High Court. The father was
transferred on 24th May , 1984 from sub-jail , Ernakulam.
to the General Hospital , Ernakulam because he had become
ill. He was thereafter admitted in the General Hospital.
The son’s bail application was also rejected by the
High Court of Kerala and he was also transferred to the
General , Hospital , Ernakulam because he became ill.
Thereafter on 6th June , 1984 , application for grant of
bail was moved on behalf of the father and the son before
the Sessions Judge and the said application was rejected on
12th June , 1984 in respect of both of them.
Both Bharat Mehta and Venilal Mehta were transferred to
the Medical College Hospital , Kottayam for treatment. On
20th June 1984 , the father and the son while in custody
and undergoing treatment in Medical College Hospital were
served with the detention orders under the said Act.
Thereafter they were transferred to the Central Prison ,
Trivandrum.
On 25th June , 1984 , the grounds were served on all
three of them. It is alleged that the said grounds were
served nearly at midnight and said grounds served were
written in English while
706
some of the accompanying documents about six in number were
In Malayalam.
On 25th July , 1984 Miss Pragna Mehta made an
application praying , inter alia that the order of
detention by revoked and she may be set at liberty. On 4th
August , 1984 , she wrote a letter to the Chairman ,
Advisory Board seeking the assistance of a legal
practitioner or a friend during the Advisory Board
proceedings. It is alleged that on or about 6th August ,
1984 , she was informed at 9.00 A.M. for the first time
that she had to appear before the Advisory Board at 10.00
A.M.
It is her case that she appeared without being given an
opportunity of being assisted by any friend. She further
alleges that she being the only lady detenu in solitary
confinement , after coming back from the Advisory Board
meeting made a representation to the detaining authority for
certain jail facilities namely , facility of home cooked
food, reading and writing materials , frequent interviews
with relations and friends , facility of writing letters to
mother in Gujrati language , sewing and embroidery
materials and hygienic toilet facility.
She made a representation to the Central Government on
9th August. 1981 for revocation of her detention order.
On 11th August , 1984 , a letter was received by her
from the Commissioner and Secretary to Government ,
Government of Kerala respondent No. 1 that there was no
provision for home cooked food and there was no solitary
confinement , that interviews , and all outgoing and
incoming letters are required to be censored and no special
restrictions have been imposed upon her. She alleges that on
13th August , 1984 , she came to know from the jail
authorities that the Advisory Board had confirmed the
detention of her and of brother and father for one year and
that the opinion of the Advisory Board was published in the
local newspaper Mothrubhumi on 13th August , 1984.
On 23rd August , 1984 she received a letter that her
representation dated 25th July , 1984 had been rejected On
24th August , 1984 she received a letter from the Under
Secretary to the Government of India in terms whereof she
was informed that her repre-
707
sentation dated 9th August , 1984 addressed to the Central
Government had been rejected.
On 23th August , 1984 , she was served with an order
issued by respondent No. 1 whereby she was informed that the
Advisory Board in its report had expressed that there was
sufficient cause for detention of the detenu and accordingly
, the Government confirmed the order of detention for a
period of one year.
So far as father , Venilal Mehta is concerned , it is
his case that Hindi translation of grounds of detention was
served on him on 30th June , 1984. While supplying the
Hindi translation Of the grounds , the annexures being
annexure Nos. 1. 6 , 8 , 27 , 38 and 47 of the list of
documents were supplied in Malayalam. It is the case of the
father that he does not know how to read , write or speak
English or Hindi or Malayalam. He can only sign his name in
English. But thereafter on 27th May , 1984 he made a
representation in Gujrati to the detaining authority praying
that he was unable to read , write either English or Hindi
or Malayalam and the grounds of detention may be given to
him duly translated in Gujrati.
On 5th August , 1984 , he was informed by a letter
dated 4th August , 1984 that his representation could only
be examined after the same was translated into English. On
5th August , 1984 he made a representation to the detaining
authority praying that his detention order may be revoked.
He was informed on 6th August , 1984 at 9. 15 A. M. that he
would have to appear before the Advisory Board at 10.00 A.M.
He appeared before the Advisory Board and the Advisory Board
had confirmed his order of detention on 13th August , 1984.
He received a letter on 25th August , 1984 that his request
for supply of grounds of detention and connected documents
was not considered necessary by the Government. The
representation dated 9th August , 1984 was rejected and the
same was communicated to him by a letter dated 28th August ,
1984 , and he was informed on 31st August , 1984 that the
Advisory Board was of the opinion that there was sufficient
ground for detention. He was also informed by a letter dated
10th August , 1984 that his representation dated 5th August
, 1984 had been rejected.
More or less similar is the Case of the son except that
he
708
did not plead ignorance of any language English or Hindi.
As mentioned hereinafter , all the three detention
orders have been challenged by Prakash Chandra Mehta , the
son of Venilal Mehta and brother of Bharat Mehta and Pragna
Mehta by these three separate writ petitions.
The father had on or about 30th June , 1984 made a
representation for mercy. It was written in English but
signed in Gujrati. It is the case of the father that his son
brought this representation prepared by his wife and without
understanding he signed the representation for forwarding
the same to the proper authorities. The detenu Venilal Mehta
, the father and Bharat Mehta , the son , were detained
on grounds mentioned in section 3 (1) (iii) and 3 (i) (iv)
of the Act and the detenu Miss Pragna Mehta , the daughter
was detained on grounds mentioned in section 3 (i) (iii) of
the said Act. The said orders were dated 19th June , 1984
were served on 20th June , 1984 alongwith the grounds in
English It was further mentioned in the communications
containing the said grounds that the said grounds were being
communicated to them for the purpose of Article 22 (5) of
the Constitution and they were given opportunities to make
representation against the said grounds.
The grounds of detention stated that on the basis of
intelligence received a search of room No. 316 of Dwaraka
Hotel at M.G. Road , Ernakulam , was conducted and after
being identified it was stated that the Customs authorities
had reason to believe that gold of foreign origin was kept
in the room in the custody of B.V. Shah in contravention of
the provisions of the Customs Act , 1962 and Gold Control
Act , 1960. The occupants of the room , the father and the
daughter had informed that they were not having any such
articles. Thereafter the Superintendent and the party made a
through search in the presence of the independent witnesses
, the occupants and the accountant of the hotel , Mr.
Jayaprakash. In addition to the furniture in the room there
were three suitcases and one vanity bag in side the room. On
enquiry , the father informed that two of the suitcases
belonged to him and the third suitcase and the vanity bag
belonged to his daughter. The Superintendent requested the
daughter to identify her suitcase and accordingly she
identified a brown coloured suitcase marked Aristocrat and
vanity bag as hers. The two
709
suitcases claimed to be of the father were examined by the
Superintendent. There were no gold or incriminating
documents in the suitcases. The Superintendent asked the
daughter to open her suitcase and accordingly she opened the
suitcase by taking a key from her vanity bag. When she
opened , the suitcase was found to contain one inflated
air pillow and certain personal clothings- Beneath the air
pillow and the personal clothings , there was some thing
warped in a Turkish towel. When the Turkish towel was
removed three paper packets with abnormal weight were found.
The Superintendent enquired Or the daughter about the
contents of the three packets and she had remained silent.
Immediately the father disclosed that the packets contained
gold biscuits of foreign origin. When the Superintendent
asked about the quantity , the father informed that the
three packets totally contained 60 gold biscuits , with 25
gold biscuits each in two bigger packets and 10 gold
biscuits in the small packet. All the three packets were
covered with paper bearing printed English letters. The
three packets were opened and examined and found to contain
60 gold biscuits , with 25 gold his suits each in two
packets and 10 gold biscuits in the third packet. All the 60
gold biscuits were thoroughly examined , weighed and purity
tested by a certified goldsmith. Each gold biscuits was
found to be of 24 carat purity with a weight of 116.5 grams.
The total weight and other particulars of the said gold
biscuits and other particulars of certain other materials
found were mentioned. It is unnecessary to set these out in
detail. The persons of both the father and the daughter were
searched. Nothing incriminating was found from the daughter
, but certain documents which are noted as incriminating
were found from the person of father , the particulars of
the said documents have also been set out in that: grounds.
It is not relevant for our present purpose to set these out
in detail.
The Superintendent asked the daughter and the father
whether they were having any valid documents to prove the
nature of import and prove the legal possession of the 60
gold biscuits of foreign origin recovered from the suitcase
claimed to be of the daughter. She replied that she did not
have any such document and that she carried the above said
gold biscuits from Bombay to Cochin as directed by her
father. The father also said that he had no valid documents
to prove the nature of import of the 60 gold biscuits to
India and for the possession of
710
the same and that the daughter carried the gold biscuits
from Bombay to Cochin as directed by him.
In the premises it was stated that there was reasonable
belief that 60 gold biscuits were smuggled into India and
acquired and possessed and dealt with in contravention of
the Customs Act , 1962 and the Gold Control Act , 1960 and
hence were liable for confiscation.
The show cause notice further stated that the entire
articles in the suitcase from which the gold biscuits were
recovered , the key of the suitcase and the documents
recovered from the vanity bag of Miss Pragna Mehta and from
the shirt pocket of Venilal Mehta (B.V. Shah) were also
seized for further necessary action. The value of the gold
biscuits seized came to round about Rs. 14 lakhs. B.V Shah
alias Venilal Mehta , Miss Pragna Mehta and the independent
1) witnesses have signed on the documents and on the
mahazar. Mr. Jayaprakash accountant of Dwaraka Hotal had
also appended his signature in the mahazar.A copy of the
mahazar was also given to B.V. Shah alias Venilal Mehta and
his acknowledgement was obtained on the original.
Ground I (b) stated about the search on intelligence
report of Hotel Airlines at M.G. Road , Ernakulam. It is
not necessary to set out in detail the documents and the
currency notes seized , particulars whereof were stated in
the said show cause.
In Ground I (c) , the search and seizure of Swastic
Society , Bombay have been set out. Certain telephone
numbers are noted. The documents seized from this place
included telephone bills installed at the residence of
Venilal Mehta and two other telephone numbers noted in the
paper. Other details of the ground and facts of the search
need not be set out in detail.
In Ground I (d) , it was stated that the
Superintendent of Customs searched premises of R.D. Mehta &
Co. and certain particulars of telephone numbers and other
documents recovered were stated therein.
In Ground I (e) , it was stated that the
Superintendent searched the silver refinery controlled by
Shri Partap Sait. Certain
711
diaries and documents are seized. The telephone of the
refinery is 37144. In the documents and diaries seized from
the silver refinery , phone number 625768-the phone number
of the residence of Venilal Mehta was found entered.
In Ground I (f) , it was mentioned that certain
documents were recovered from Sadasiva Sait , the
particulars whereof arc mentioned therein the grounds. As a
result of search 10 foreign made gold biscuits weighing
116.500 grams each , 8 primary gold bars weighing 1714 gms.
and one gold piece weighing 95 gms. were recovered from the
office room. It is further stated in the show cause notice
in ground 11 (iii) that during the sight seeing trip to
Cochin with family in January , 1983 Venilal Mehta had
contacted different jewellers in Cochin. Shri Pratap Sait of
Shalimar Jewellery , Cochin alone responded to the business
of Venilal Mehta.
These were entered into in the statement signed by Miss
Pragna Mehta which of course , she had retracted thereafter
From different searches at different places telephone
number 37144 of Pratap Sait (at the silver refinery of
Pratap Sait) was found in various documents.
In Ground II (c) , the statements recorded under
section 108 of the Customs Act by Venilal Mehta and others
were mentioned. It is not necessary in view of the fact that
these statements have been retracted , to refer and set out
the said grounds in detail.
In Ground II (f) , the interrogation of Bharat Mehta
is set out. Here also the same cannot be set out because he
has also retracted.
In Ground III , it is mentioned that Venilal Mehta ,
Miss Pragna Mehta and Bharat Mehta were arrested and
produced before the then Chief Judicial Magistrate who
granted permission to interrogate Shri Venilal Mehta and
Shri Bharat Mehta in the presence of Jail Superintendent.
Thereafter Bharat Mehta was interrogated and the result of
such interrogation is mentioned in Ground IV. The same again
cannot be relied on because these have been retracted.
In Ground V(1) , it was stated that Shri Pratap Sait
of
712
‘Mahadev Parvathy House’ was interrogated under section 108
of the Customs Act. He denied having seen Venilal Mehta or
B.V. Shah. He also denied any dealings with B.V. Shah
regarding the gold biscuits.
In Ground V (2) , it was stated that Mr. Prakash
Krishnan Yadav , an employee of the silver refinery was
interrogated under section 108 of the Customs Act. He stated
that his normal work in the refinery was purifying silver.
He used to purify the gold from Shalimar Jewellery also. He
knew Bharat Mehta , Venilal Mehta and Rashmi Mehta. They
used to come to the refinery. They used to meet the younger
brother of Pratap Sait , Shri Suresh. They were doing some
secret business. Suresh used to entrust him with certain
bundles of notes to be handed over to Venilal Mehta or his
sons. This he used to do. The documents seized from the
refinery contained the accounts of agriculture and grapes
were written by Pratap Sait. Some times Venilal Mehta ,
Bharat Mehta and Rashmi Mehta used to stay at Hotel Blue
Diamond and he had 1> met them while they were there. The
telephone number of the refinery , he stated , was 37144.
His statement was read over to him and admitted to be
correct. This statement was not retracted.
In Ground V (3) , it was stated that one Shri Suresh
Mahadeva Salunkhe S/o Mahadev Dari Salunkhe was examined
under section 108 of the Customs Act. He has also given
certain facts about the business of Pratap Sait and others.
He said that Pratap was looking after Blue Diamond Hotel. He
also knew Venilal Mehta , Bharat Mehta and Rashmi Mehta. He
further stated that Venilal Mehta came to the refinery some
time ago and thereafter as per the telephonic direction of
his brother , Shri Pratap Sait , he received some gold
biscuits from him and had given these to his brother. His
brother gave a bundle of currency notes. This was repeated
many times.
In Ground V (4) , it was stated that one Shri Suresh
S/o Damodharan , was interrogated under section 108 of the
Customs Act. He also stated certain facts giving the
connection and the phone number of Venilal Mehta. These have
been set out in details in the ground. The particulars of
other grounds in V (5) need not be set out in detail.
713
In Ground VI (i) , it was stated that as a follow up
action , the house of Pratap Sait at Convent Junction ,
Cochin was searched. No contraband goods or incriminating
documents were recovered. Shalimar Jewellery was also
searched In the premises , it was stated , against Venilal
Mehta that evidence collected showed that Venilal Mehta had
large scale dealings in smuggled gold biscuits.A paper bit
recovered from him on 2nd May , 1984 , which show d the
details of transaction and the particulars of the writings
of the paper have been set out in the show cause notice and
it is further stated that one Sadasiva Sait was apprehended
with 2974 grams foreign gold biscuits and the numbers shown
against the letters ‘S’ in the paper mentioned here in
before related to the gold biscuits delivered to him by
Venilal Mehta and his sons on the dates mentioned against
each. From this , according to the respondent , it was
evident that the other numbers shown were also related to
gold biscuits- As set out before , Sadasiva Sait in his
statement stated that letters ‘P’ might be in relation to
Pratap Sait and letter ‘B` might be in relation to Bhim Rao.
From the aforesaid , it was stated that it was evident
that Venilal Mehta , and in the case of the other two ,
son and the daughter more or less similar grounds are made ,
was dealing in smuggled gold biscuit and that 60 gold
biscuits weighing 6990 grams and valued at Rs. 14 lakhs were
seized and that Venilal Mehta , sons Rashmi Kanth Mehta and
Bharat Mehta and Miss Pragna Mehta were actively engaged in
the business of smuggled foreign gold biscuits. Venilal
Mehta was the master brain behind this business.A list of
documents was annexed. The search list and the deposition
and necessary documents , the panchnama and he statements
were also annexed with the show cause notice.
One of the documents which is annexed to the affidavit
in opposition of the respondents is a mercy petition which
is annexure R-1 dated 30th June , 1984 addressed to the
Secretary and Commissioner , Home & Vigilance , Home
Department , Government of Kerala , Trivandrum through the
Superintendent , Central Jail , Trivandrum. In that he
stated as follows:-
“I , Venilal M Mehta , beg to request you to
give kindly and sympathetic attention to the following
few
714
lines and render mercy to me.
I am an old man of 60 years. I had my peaceful
life as a business man and commanded respect in the
business circle and friends. I myself am surprised to
understand what prompted me to involve in such activity
as dealing in Imported Gold. My financial and social
status was unblemished during all these years of my
life. I would not say it was a greed it was only the
destiny that played this part.
Looking to my old-age and unstinted career up till
now , I beg you to show mercy on me and t o revoke the
order of detention under COFEPOSA. I assure you that
never in my life to come , I will indulge in any such
activity there are detrimental to the nation as a whole
and me in particular.
Thanking you in anticipation of your favours ,
Yours faithfully ,
Trivandrum , Sd/-
30th June , 1984. (Venilal M. Mehta)”
It was written in English but signed in Gujrati. It was
stated as mentioned before that it was signed without
understanding as this was sent by the wife of the detenu ,
Venilal Mehta.
The charges against the daughter were under section 3
(1) (iii) , and against the father , Venilal Mehta and the
son , Bharat Mehta , these were under section 3 (1) (iii)
and 3 (1) (iv) of the said Act. The relevant provisions of
section 3 of the said Act reads as follows:-
“3. Power to make orders detaining certain
persons-
(1) The Central Government or the State Government or any
officer of the Central Government , not below the rank of a
Joint Secretary to that Government , specially em powered
for the purposes of this section by that Government , or
any officer of a State Government , not below the rank
715
of a Secretary to that Government , specially
empowered for the purposes of this section by that
Government may , if satisfied , with respect to any
person (including a foreigner) , that , with a view
to preventing him from’ acting in any manner
prejudicial to the conservation or augmentation of
foreign exchange or with a view to preventing him from-
(i) XXXX
(ii) XXXX
(iii) engaging in transporting or concealing or
keeping smuggled goods , or
(iv) dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping
smuggled goods , or
(v) XXXX
it is necessary so to do , make an order directing
that such person be detained”
Before we consider the submissions on behalf of the
detenus in this case , certain board facts have to be borne
in mind. Search of room No. 316 of Dwarka Hotel M.G. Road ,
Ernakulam , by the Superintendent of the Central Excise and
Customs , Cochin stands demonstrated. It also cannot be
disputed that the occupants of the room at the time of
search were Venilal Mehta alias B.V. Mehta and daughter
Pragna Mehta. 60 gold biscuits were recovered from the
suitcase belonging to Miss Pragna Mehta. Details have been
mentioned in Ground I(a) , Panchnama regarding the search
and seizure was prepared and was signed by the daughter and
the father and attested by independent witness-one of being
the accountant of the Hotel Secondly , B.V. Shah was
interrogated and he made certain statements. On 2nd May ,
1984 , there was search of the house of Pratap Sait at
Ernakulam. On the same day , Shalimar Jewellery Fixed
Deposit Door No. 37/8 , Broadway , Cochin was searched ,
The statements of B.V. Shah or Venilal Mehta , Pragna Mehta
and Bharat Mehta under section 108 even if these are ignored
, there
716
were searches and statement by one Shri S. Kumar and there
was also search on 14th May , 1984 of the residential
quarters of Venilal Mehta at Bombay where telephone having
No 625768 was installed. This telephone number tallied with
certain papers of Pratap Sait and other houses mentioned
here in before.
There was search of the premises of Venilal Mehta in
the name of R.D. Mehta & Co. Bombay. There also the
telephone numbers 339774 and 338286 were found installed.
These tallied with the telephone numbers found in the papers
in other houses The documents recovered from R.D. Mehta
included telephone bills of phone No. 625768 installed at
the house of Venilal Mehta which showed that from the said
phone trunk calls were booked to Cochin telephone Nos. 37144
and 33221 Ernakulam , 37144 is the telephone number of
Silver Refinery and 33221 is the telephone number of Blue
Diamond Hotel controlled by Pratap Sait.
The search of Silver Refinery owned by Pratap Sait was
made on 21st May , 1984. Two diaries and certain documents
were seized.A Panchnama was prepared. In the diary seized
from the Silver Refinery , telephone No. 625768 of the
residence of Venilal Mehta was found entered.
Then there was statement of Prakash Krishna Yadav v ,
one of the employees of Silver Refinery where he had stated
Venilal Mehta , Bharat Mehta and another son of Venilal M
Mehta used to come to Refinery. He had further stated
that they (the aforesaid named persons) used the meet the
younger brother Or Pratap Sait 1′ and they were doing some
secret business. Suresh usual to entrust him with bundle of
notes to be handed over to Venilal Mehta and his sons. These
statements were made under section 108 of the Customs Act by
these persons and these statements were not retracted. He
further stated that he had met them at Hotel Blue Diamond
when they had stayed there. In the statement of Suresh M
Chalunka , younger brother of Pratap Sait , he established
the connection of B.V. Shall with the refinery of Pratap
Sait at Ernakulam. He also confirmed that they were dealing
in gold biscuits. He did not know how many gold biscuits
were there. Mr. Bharat and Mr. Rashmi , sons of B.V. Shah
used to come , according to his statement , with gold
biscuits. He used to receive the gold biscuits and give
these to his brother Pratap Sait.
717
Shri Suresh , receptionist of Blue Diamond Hotel in
statement on 25th May , 1984 under section 108 of Customs
Act had stated that on 3rd May 1984 , Bharat Mehta
contacted him over the phone and accordingly he and Bharat
Mehta met at Oberoi Hotel. Bharat Mehta had told him that
his father and sister were caught with gold biscuits and
requested for help. On 5th June , 1984 , Customs
Department Superintendent party arrived at the Silver
Refinery , Trichur of Sadashiv Sait and as a result of the
search 10 foreign made gold biscuits , 8 primary gold
biscuits and 1 gold piece were recovered. Then on 5th June ,
1984 , Sadashiv Sait was interrogated. Extracts from his
examination have been set out here in before , which
clearly established the connection of Venilal with these
transactions. Some documents were recovered from B.V. Shah
(Venilal) while he was caught with 60 gold biscuits and
letter ‘S’ has been explained as indicated before.
On the above facts , detailed show cause notice was
issued. It is true that in the said show cause , the
statements of Venilal Mehta on 2nd May , 1984 , 3rd May ,
1984 and 4th May , 1984 were also taken into account but
Annexure ‘C’ to letter to the Collector retracting the
statement was not taken into account.
It has therefore to be examined that in view of the
fact that the whole statement had been retracted , these
statements should have been considered along with the
retraction. The fact of not doing so will require
examination. It may , however , be mentioned that in the
counter-affidavit , it has been stated that the basis of
the detention order was not only the statement by the
detenus but also other materials which were supplied to the
detenus.
In support of these applications , the following main
grounds were urged namely:
(1) The grounds were not communicated to the detenus in
a language understood by them.
(2) The retraction of the confessions or statements
made under section 108 of the Customs Act had not been taken
into consideration.
718
(3) There was delay in serving the grounds upon the
detenus.
(4) The detenus were not allowed to be represented
properly before the Advisory Board.
(5) The fact that there was retraction of the
confession having not been taken into consideration the
proceedings were vitiated.
(6) The detaining authority did not independently
consider the representation of detenus but mechanically
followed the advice of the Advisory Board.
Preventive detention under certain prescribed
circumstances under the provisions of certain Acts is
permissible in India with certain constitutional safeguards
and the preventive detention which is recognised and
permitted by our Constitution must be resorted to strictly
within those constitutional safeguards ,
Article 22 ensures protection against arrest and
detention except in certain prescribed circumstances and
conditions. Article 22(4) of the Constitution stipulates
that no law providing for preventive detention shall
authorise the detention of a person for a longer period
than three months unless.
(a) an Advisory Board consisting of persons who
are , or have been , or are qualified to be appointed
as , Judges of a High Court has reported before the
expiration of the said period of three months that
there is in its opinion sufficient cause for such
detention;
Provided that nothing in this sub-clause shall
authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament
under sub clause (b) of clause (7); or
(b) such person is detained in accordance with the
provisions of any law made by Parliament under such
clauses (a) and (b) of clause (7).
Clause l 5 of Article 22 reads as follows:-
719
“(5) When any person is detained in pursuance of
an order made under any law providing for preventive
detention , the authority making the order shall , as
soon as may be , communicate to such person the
grounds on which the order has been made and shall
afford him the earliest opportunity of making a
representation against the order’.
Clause (6) provides that nothing clause (5) shall require
the authority making any such order as is referred to in
that clause to disclose facts which such authority considers
to be against the public interest to disclose. Clause (7) of
Article 2?. ensures that the Parliament may make law in
certain manner prescribed in that sub-clause.
Therefore it was contended that the order and grounds
should be communicated to the detenus in the languages or
language they understood. According to the petitioner ,
Venilal Mehta understood nothing except Gujrati. He did not
understand English or Hindi or Malayalam. The grounds of
detention were initially supplied to Venilal Mehta in
English on 25th June , 1984 i.e. within five days of his
arrest or detention. But certain accompanying documents in
Malayalam language were supplied to him namely , item Nos.
1 , 6 , 8 , 27 , 38 and 47.
Sub-section (3) of section 3 of the s lid Act provides
as follows:-
“For the purposes of clause (5) of Article 22 of
the Constitution , the communication to a person
detained in 1 pursuance of a detention order of the
grounds on which the order has been made shall be made
as soon as may be after the detention , but ordinarily
not later than five days , and in exceptional
circumstances and for reasons to be recorded in writing
not later than fifteen days , from the date of
detention.”
In the instant case it was submitted that assuming that
Venilal Mehta knew Hindi , the translated copy of the
English grounds was admittedly made available to him in
Hindi language on 30th June , 1984-beyond a period of five
days and for which neither any excep-
720
tional circumstances existed nor an reason given. Moreover
it was urged that the annexures in Malayalam language
retained their places while supplying the translated copy of
the grounds of detention in Hindi language. Therefore it was
urged that there was noncompliance with the provisions of
the Act.
It will be appropriate to deal with the first ground.
Whether the grounds should have been communicated in the
language under stood by the detenus ? The Constitution
requires that the grounds must be communicated. Therefore it
must follow as an imperative that the grounds must be
communicated in a language understood by the person
concerned so that he can make effective representation. Here
the definite case of the petitioner’s father is that he does
not understand English or Hindi or Malayalam and does under
stand only Gujrati language. The facts revealed that the
detenu Venilal was constantly accompanied and was in the
company of his daughter as well as son both of them knew
English very well. The father signed a document in Gujrati
which was written in English which is his mercy petition in
which he completely accepted the guilt of the involvement in
smuggling. That document dated 30th June , 1984 contained ,
inter alia , a statement “I myself am surprised to
understand what prompted me to involve in such activity as
dealing in Imported Gold”. He further asked for mercy. There
is no rule of law that common sense should be put in cold
storage while considering constitutional provisions for
safeguards against misuse of powers by authorities though
these constitutional provisions should be strictly
construed. Bearing this salutary principle in mind and
having regard to the conduct of the detenu Venilal Mehta
specially in the mercy petition and other communications ,
the version of the detenu Venilal is feigning lack of any
knowledge of English must be judged in the proper
perspective. He was , however , in any event given by 30th
June , 1984 the Hindi translation of the grounds of which
he claimed ignorance. The gist of the annexures which were
given in Malayalam language had been stated in the grounds.
That he does not know anything except Gujrati is merely the
ipse dixit of Venilal Mehta and is not the last word and the
Court is not denuded to its powers to examine the truth. He
goes to the extent that he signed the mercy petition not
knowing the contents , not understanding the same merely
because his wife sent it though he was sixty years old and
he was in business and he was writing at a time when he was
under arrest ,
721
his room had been searched , gold biscuits had been
recovered from him. Court is not the place where one can
sell all tales. The detaining authority came to the
conclusion that he knew both Hindi and English. It has been
stated so in the affidavit filed on behalf of the
respondent. We are of the opinion that the detenu Venilal
Mehta was merely feigning ignorance of English.
We may here notice the first decision upon which
reliance was placed a decision in the case of Harikisan v.
The State of Maharashtra & Others.(l) This Court reiterated
that the provisions of Article 22 (5) of the Constitution
required that the grounds should be communicated to the
detenu as soon as may be and that he should be afforded the
earliest opportunity of making a representation against the
order. This Court reiterated that communication meant
bringing home to the detenu effective knowledge of the facts
and the grounds on which the order was based. To a person
who was not conversant with the English language , in order
to satisfy the requirement of the Constitution , the detenu
must be given grounds in a language which he can understand
and in a script which he can read , if he is a literate
person , in that case it was held that mere oral
translation at the time of the service was not enough. In
that case the detenu was served with the order of detention
and the grounds in English. He did not know the language and
asked for a translation in Hindi. The request was refused on
the ground that the grounds had been orally translated to
him at the time these were served upon him and that English
was still being the official language , communication of
the order and grounds in English was in accordance with the
law and the Constitution. This Court observed at pages 925-
926 of the report as follows:-
“If the detained person is conversant with the
English language , he will naturally be in a position
to understand the gravamen of the charge against him
and the facts and circumstances on which the order of
detention is based. But to a person who is not so
conversant with the English language , in order to
satisfy the requirements of the Constitution , the
detenu must be given the grounds in a language which he
can understand , and in a script which
(1).[1982] 2 Supp. S.C.R. 918.
722
he can read , if he is a literate person.
The Constitution has guaranteed freedom of
movement throughout the territory of India and has laid
down detailed rules as to arrest and detention. It has
also , by way of limitations upon the freedom of
personal liberty , recognised the right of the State
to legislate for preventive detention , subject to
certain safeguards in favour of the detained person ,
as laid down in cls.(4) & (5) of Art. 22 One of those
safeguards is that the detained person has the right to
be communicated the grounds on which the order of
detention has been made against him , in order that he
may be able to make his representation against the
order of detention. In our opinion , in the
circumstances of this case , it has not been shown
that the appellant had the opportunity , which the law
contemplates in his favour , making an effective
representation against his detention. On this ground
alone , we declare his (I detention illegal , and set
aside the Order of the High Court and the Order of
Detention passed against him.”
The principle is well-settled. But in this case it
has to be borne in mind that the grounds were given on 25th
June , 1984 following the search and seizure of gold
biscuits from his room in the hotel in his presence and in
the background of the mercy petition as we have indicated
and he was in constant touch with his daughter and sons and
there is no evidence that these people did not know Hindi or
English. Indeed they knew English as well as Hindi. It is
difficult to accept the position that in the peculiar facts
of this case the grounds were not communicated in the sense
the grounds of detention were not conveyed to the detenu
Venilal. Whether grounds were communicated or not depends
upon the facts and circumstances of each case.
As early as in 1968 , in the case of Hadibandhu
Dase v. District Magistrate , Cuttack & Anr.(1) this Court
was concerned with a case where on December 15 , 1967 ,
the District Magistrate , Cuttack had served an order made
in exercise of power under section 3(1) (a) (ii) of the
Preventive Detention Act directing that
(2) [1969] 1 S.C.R. 227.
723
appellant be detained on various grounds. On December 19 ,
1967 , the appellant filed a petition in the High Court
challenging the order of detention on the grounds , inter
alia , that the order and the grounds in support thereof
served upon the appellant were written in the English
language which the appellant did not understand. On January
18 , 1968 the District Magistrate supplied 1 to the
appellant an Oriya translation of the order and the grounds.
On January 28 , 1968 , the State of Orissa revoked the
order and issued a fresh order of detention.A translation of
this order in Oriya was supplied to the appellant. The
appellant thereafter submitted a supplementary petition
challenging the validity of the order dated January 28 ,
1968. The High Court of Orissa rejected the petition filed
by the appellant. There was an appeal to this Court by
certificate. It was held that in the facts of that case ,
there was no proper communication. The order ran into
fourteen typed pages. Mere oral explanation of such an order
without supplying him a translation in a script or language
which he understood , amounted to denial of the right of
being communicated the grounds and of being afforded the
opportunity of making a representation against the order.
The facts in the instant case as mentioned hereinbefore are
different.
In the case of Nainmal Partap Mal Shah v. Union of
India and Others (1) , the detenu not conversant with the
English language was not supplied with the translated
script. It was stated in opposition that the grounds were
explained to the detenu by the prison authorities. This
Court found that who explained it was not stated. This
explanation was not correct and as such there is no proper
communication. This does not help us in the facts of this
case.
It is submitted in the instant case before us that
the accompanying documents were supplied to the detenu in
Hindi on 30th June , 1984 beyond a period of five days. For
this there were no exceptional circumstances nor any reason
had been recorded. Reliance was placed on certain
observations in the case of Ibrahim Ahmad Batti v. State of
Gujarat & Others. (2) But again the facts of that case were
entirely different because in the instant case all the
(1)[1980] 4 S.C.C. 427.
(2)[19831 1 S.C.R. 540.
724
factors were pointed out in the grounds in English which
Venilal understood. His mercy petition corroborates that
view. There is no dispute that the other two detenus namely
Pragna Mehta and Bharat Mehta knew English and Hindi. Indeed
no point of non communication of the grounds was made out in
respect of them.
It was next submitted that the detenus had
retracted the alleged statements by letters dated 5th May
and 6th May , 1984 addressed to the Collector , Central
Excise and Customs. While the statements made in the
confession or statements before the Collector under section
108 had been noted in the grounds of detention , the
retraction had not been noted. It was submitted that the
said retraction was bound to influence the mind of the
detaining authority one way or the other whether to make or
not to make the detention order and therefore not taking
this fact into consideration on or about 19th/20th June ,
1984 , there was no application of mind. It is true that
retraction was not taken into consideration as it is evident
from the order of detention , thought the retraction as
noted here in before , was considered before confirming the
order of detention subsequently after the opinion of the
Advisory Board.
Section 5A of the said Act which was introduced by
amendment in 1975 reads as follows:
‘5A. Grounds of detention severable-Where a person
has been detained in pursuance of an order of detention
under sub-section (1) of section 3 which has been made
on two or more grounds , such order of detention shall
be deemed to have been made separately on each of such
grounds and accordingly-
(a) such order shall not be deemed to be invalid or
inoperative merely because one or some of the
grounds is or are-
(i) vague ,
(ii) non-existent ,
(iii) not relevant ,
725
(IV) not connected or not proximately connected with
such person , or
(V) invalid for any other reason whatsoever , and it
is not therefore possible to hold that the Government
or officer making such order would have been satisfied
as provided in sub-section (l) of section 3 with
reference to the remaining ground or grounds and made
the order of detention;
(b) the Government or officer making the order of
detention shall be deemed to have made the order
of detention under the said sub-section ( I )
after being satisfied as provided in ground or
that sub-section with reference to the remaining
grounds.”
Section 5A stipulates that when the detention order
has been made on two or more grounds , ‘such order of
detention shall be deemed to have been made separately on
each of such grounds and accordingly that if one irrelevant
or one inadmissible ground had been taken into consideration
that would not make the detention order bad.
Article 22 (5) of the Constitution has two
elements: (i) communication of the grounds on which the
order of detention has been made; (ii) opportunity of making
a representation against the order of detention.
Communication of the grounds pre-supposes the formulation of
the grounds and formulation of the grounds requires and
ensures the application of the mind of the detaining
authority to the facts and materials before it , that is to
say , to pertinent and proximate matters in regard to each
individual case and excludes the elements of arbitrariness
and automatism.
The ‘grounds’ under Article 22(5) of the
Constitution do not mean mere factual inferences but mean
mere factual inferences plus factual material which led to
such factual inferences. See the
726
observations of this Court in the case of Smt. Shalini Soni
Etc v. Union of India- & Ors. Etc.(1)
As has been said by Benjamin Cardozo , “A
Constitution states or ought to state not rules for the
passing hour , but principles for an expanding future”. The
concept of “grounds” , has to therefore , has to receive
an interpretation which will keep it meaningfully in tune
with the contemporary notions of the realities of the
society and the purpose of the Act in question in the light
of concepts of liberty and fundamental freedoms guaranteed
by Article 19 (1) , 21 and 22 of the Constitution.
Reviewing several decisions in the case of Hasmukh S/o
Bhagwanti M. Patel v. The State of Gujarat & Others. , (2)
this Court held that a democratic Constitution is not to be
interpreted merely from a lexicographer’s angle but with a
realisation that it is an embodiment of the living thoughts
and aspirations of a free people. The concept of ‘grounds’
used in the context of detention in Article 22(5) of the
Constitution and in sub-section (3) of section 3 of COFFPOSA
, therefore , has to receive an interpretation which will
keep it meaningfully in tune with a contemporary notions.
While the expression “grounds” for that matters includes
not only conclusions of fact but also all the “basic facts”
on which those conclusions were founded , they are
different from subsidiary facts or further particulars or
the basic facts.
In the instant case , the ground of detention is
the satisfaction of the detaining authority that with a view
to preventing the detenu from acting in any manner
prejudicial to the conservation or augmentation of foreign
exchange or with a view to preventing the detenu from ,
inter alia , dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping the
smuggled goods , or engaging in transporting or concealing
or keeping smuggled goods the detention of the detenu is
necessary. This satisfaction was arrived at as inferences
from several factors. These have been separately mentioned.
One of them is the contention but this ground was taken into
consideration without taking note of the retraction made
thereafter. But the inference of the satisfaction was drawn
from several factors which have been enumerated before. We
have to examine whether even if the facts
(1) [1981] S.C.R. 962.
(2) [1981] 1 S.C.R. 353.
727
stated in the confession are completely ignored , then the
inferences can still be drawn from other independent and
objective facts mentioned in this case , namely the fact of
seizure after search of 60 gold biscuits from the suitcase
of the daughter in the presence of the father which
indubitably belonged to the father and admitted by him to
belong to him for which no explanation has been given and
secondly the seizure of the papers connected with other
groups and organisations Pratap Sait and others to whom gold
has been sold by the father are relevant grounds from which
an inference can reasonably be drawn for the satisfaction of
the detaining authority for detaining the detenu for the
purpose of section 3(1) (iii) and 3(1) (IV). We are of the
opinion that the impugned order cannot be challenged merely
by the rejection of the inference drawn from confession. The
same argument was presented in a little different shade
namely the fact or retraction should have been considered by
the detaining authority and the Court does not know that
had that been taken into consideration , what conclusion
the detaining authority would have arrived at. This
contention cannot be accepted. We are not concerned with the
sufficiency of the grounds. We are concerned whether there
are relevant materials on which a reasonable belief or
conviction could have been entertained by the detaining
authority on the grounds mentioned in section 3(1) of the
said Act. Whether other ground should have been taken into
consideration or not is not relevant at the stage of the
passing of the detention order. This contention , therefore
, cannot be accepted. If that is the position then in view
of section 5A of the Act there was sufficient material to
sustain this ground of detention.
In the case of State of Gujarat v. Chamanlal
Manjibhai Soni , (1) this Court maintained the order of the
High Court quashing the detention. This Court observed that
detention under section 3 of the Act was only for the
purpose of preventing smuggling and all the grounds ,
whether there are one or more , would be relatable Only to
various activities of smuggling and no other separate ground
which could deal with matters other than smuggling could be
conceived of because the Act of smuggling covered several
activities each forming a separate ground of detention and
the Act dealt with no other act except smuggling. Whenever
allegations of
(1) [l981] 2 S.C.R. 500.
728
729
the custody of the Customs Officers , his advocate
addressed a letter and sent a telegram to them protesting
against his detention and illegal custody beyond 24 hours
and also expressing an apprehension that he was being
detained with a view to obtain confessional statements under
duress. It was admitted that the advocate’s request for
permission to remain present at the time of interrogation of
the detenu was turned down by the Customs Officers. The
advocate was also told that the detenu would be produced
before a Magistrate on the day of request but that was not
done. He was produced on the following day and was remanded
to judicial custody permitting further interrogation while
in judicial custody , the detenu refused to sign the
further statements and squarely resiled. While the detenu’s
application for bail was pending before the Magistrate ,
the respondent passed the impugned order. In petition under
Art. 226 of the Constitution for the issue of a writ of
habeas corpus , the appellant contended that the order of
the detaining authority was liable to be set aside because
full facts of the case were not intimated before the
detention order was passed , and therefore , there was
complete non-application of mind of the detaining authority
to the attendant vital circumstances. It was held that the
impugned order was invalid and illegal because there was
complete non-application of the mind of the detaining
authority to the most material and vital facts. In the
instant case before us , there was no request for
consultation with the advocate. There is no case of non-
production in spite of intimation by the advocate to the
Customs officers before a Magistrate. The confessional
statements of course , were retracted. But in this case the
confessional statements was not the only fact upon which the
detaining authority had passed an order. In the premises
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 hereinbefore which can reasonably lead to the
satisfaction that the authorities have come to.
The contention on behalf of the detenus that there was
delay in serving the grounds upon the detenus has been dealt
with. There is no substance in the contention in view of
what is stated hereinbefore .
So far as the ground that the detenus were not allowed
to be represented properly before the Advisory Board? from
the facts
730
narrated in affidavit in opposition where it has been stated
that services of Dr. S.C. Purohit , Senior Scientist ,
V.S.S C. Thumba , Trivandrum and Dr. Mrs. Purohit were
available to the detenu to translate the statements of the
detenu to the Advisory Board. The detenu was detained on
20th June , 1984. As required under section 8(3) of the Act
, the case of the detenu was referred to the Advisory Board
in Government letter dated 18th July. 1984. The
representations submitted by the detenu were also forwarded
to the Advisory Board for its consideration. The services of
the two persons mentioned here in before were utilised by
the Board in understanding the statement of the detenu and
deciphreing the representation in Gujarati submitted by the
detenu , Venilal Mehta to the State Government which was
also forwarded to the Board. Therefore , it has cannot be
said that detenus have not been given proper facility to be
represented before the Advisory Board. The contention that
the fact that there was retraction of the confession not
having been taken into consideration had vitiated orders has
been dealt with. The allegation or the submission that the
detaining authority did not independently consider the
representation of the detenu put mechanically followed the
opinion of the Advisory Board cannot be sustained in view of
the facts and circumstances of this case.
In this case there was evidence before the authorities
concerned that 60 gold biscuits of foreign origin without
any explanation of their importation were found in the
possession of the father-that is undisputed. Venilal could
not give any explanation of their being in there possession.
These were smuggled. Secondly , there was evidence in view
of the subsequent other facts independent of the confessions
of the father and the sons and the daughter that the father
was in contact with persons who were buying smuggled gold
from him and buying at high prices. Their telephone number
were found and they could be identified from the papers
seized during the search at his hotel room The detenu
Venilal made a mercy petition-
As the statement of objects and reasons of 1975
Amending Act state that smuggling of foreign exchange
racketeering and related activities have a deterious effect
on the national economy and thereby a serious adverse effect
on the security of State. The society must be protected from
that social menace by immobilizing
731
the persons by detention of the persons engaged in those
operations and to disrupt the machinery established for
furthering smuggling and foreign exchange manipulations
(Statement of objects and reasons of 1975 Act). Preventive
detention unlike punitive detention which is to punish for
the wrong done , is to protect the society by preventing
wrong being done. Though such powers must be very cautiously
exercised not to undermine the fundamental freedoms
guaranteed to our people , the procedural safeguards are to
ensure that yet these must be looked at from a pragmatic and
commonsense point of view. The exercise of the power of
preventive detention must be strictly within the safeguards
provided. We are governed by the Constitution and our
Constitution embodies a particular philosophy of Government
and a way of life and that necessarily requires
understanding between those who exercise powers and the
people over whom or in respect of whom such power is
exercised. The purpose of exercise of all such powers by the
Government must be to promote common well-being and must be
to sub-serve the common good. It is necessary to be protect
therefore the individual rights in so far as practicable
which arc not inconsistent with the security and well-being
of the society. Grant of power imposes limitation on the Use
of the power. There are various procedural safeguards and we
must construe those in proper light and from pragmatic
commonsense point of view. We must remember that observance
of written law about the procedural safeguards for the
protection of the individual is normally the high duty of
public official but in all circumstances not the highest.
The law of self preservation and protection of the country
and national security may claim in certain circumstances
higher priority.
As has bean said by Thomas Jefferson “To lose our
country by a scrupulous adherence to written law , would be
to lose itself , with life , liberty , property and all
those who are enjoying them with us , thus absurdly
sacrificing the end to the means” (Thomas Jefferson ,
Writings (Washington ed) , V. 542-545 and The Constitution
Between friends by Loutis Fisher 47). By the aforesaid
approach both justice and power can by brought together and
whatever is just may be powerful and whatever may by
powerful may be just
732
In the background of the facts and circumstances of
this case the procedural safeguards have been complied with
as far as practicable. There are no merits in the fancied
grievances of the detenus. In that view of the matter ,
these petitions fail and are accordingly dismissed.
A.P.J. Petitions dismissed.
733