{"id":165288,"date":"1981-10-30T00:00:00","date_gmt":"1981-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hemlata-kantilal-shah-vs-state-of-maharashtra-ors-on-30-october-1981"},"modified":"2017-07-16T08:56:27","modified_gmt":"2017-07-16T03:26:27","slug":"hemlata-kantilal-shah-vs-state-of-maharashtra-ors-on-30-october-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hemlata-kantilal-shah-vs-state-of-maharashtra-ors-on-30-october-1981","title":{"rendered":"Hemlata Kantilal Shah vs State Of Maharashtra & Ors on 30 October, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hemlata Kantilal Shah vs State Of Maharashtra & Ors on 30 October, 1981<\/div>\n
Equivalent citations: 1982 AIR, 8\t\t 1982 SCR (1)1028<\/div>\n
Author: B Islam<\/div>\n
Bench: Islam, Baharul (J)<\/div>\n
           PETITIONER:\nHEMLATA KANTILAL SHAH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA & ORS.\n\nDATE OF JUDGMENT30\/10\/1981\n\nBENCH:\nISLAM, BAHARUL (J)\nBENCH:\nISLAM, BAHARUL (J)\nSEN, A.P. (J)\n\nCITATION:\n 1982 AIR    8\t\t  1982 SCR  (1)1028\n 1981 SCC  (4) 647\t  1981 SCALE  (3)1657\n CITATOR INFO :\n R\t    1982 SC1029\t (11)\n R\t    1982 SC1165\t (10)\n R\t    1988 SC 227\t (7)\n R\t    1988 SC1256\t (12)\n RF\t    1990 SC 225\t (8)\n APL\t    1990 SC 231\t (9,10,11)\n R\t    1990 SC1446\t (14)\n\n\nACT:\n     Conservation of  Foreign  Exchange\t and  Prevention  of\nSmuggling Activities  Act, 1974-Scction 8 (e)-Representation\nof detenu  by  lawyer  before  Advisory\t Board-If  could  be\nclaimed as of right.\n\n\n\nHEADNOTE:\n     Detaining authority  gave grounds\tof detention-Whether\nshould also  state the particular ground on which the detenu\nwas detained-Whether  should state  that certain  metal is a\nprecious metal.\n     Delay in  passing order  of detention-Whether  fatal to\nthe order of detention in all cases-Detaining a person under\npreventive detention  law instead of prose cutting him under\nordinary law-When permitted.\n     Confidential   guidelines\t issued\t  to   oficials\t  of\ndepartment-Whether have force of law.\n     Past  conduct   of\t detenu-If   could  be\t taken\tinto\nconsideration in detaining an offender.\n     Procedure-Supreme\tCourt  and  High  Court-Jurisdiction\nunder articles 32 136 and 226 in preventive detention cases-\nCourts if  could substitute  their own satisfaction for that\nof detaining authority.\n     on their arrival at the airport from Muscat the Customs\nAuthorities apprehended\t the petitioner and her husband (the\ndetenu) and  recovered 141  slabs of  palladium (a  precious\nmetal) each  slab weighing one ounce, concealed in different\nparts of  their baggage.  In his statement under section 108\nof the\tCustoms Act  the detenu stated that he was smuggling\nthe metal because of the huge profit involved in it and that\nhe alone  was responsible for the smuggling. He was detained\nunder the  provisions of section 3(1) of the Conservation of\nForeign Exchange and Prevention of Smuggling Activities Act,\n1974\n     In a  petition under  article 32  of  the\tConstitution\nfiled by the detenu's wife it was contended on behalf of the\ndetenu that:  (I) arbitrary  rejection of  his\trequest\t for\nlegal  representation\tbefore\tthe  Advisory  Board  caused\nserious prejudice to him; (2) as a result of the authority's\nrefusal to  give information on five out of six points asked\nfor by the detenu he was deprived of the opportunity to make\na  proper  representation;  (3)\t there\twas  no\t reason\t for\ndetaining him on June 6, 1981 although he was apprehended on\nJanuary 8, 1981 and this long\n1029\ndelay  had  prejudiced\this  case:  (4)\t on  the  facts\t and\ncircumstances of  the  case  although  prosecution  was\t the\nnormal remedy  he was  unjustifiably detained  under  A\t the\nCOFEPOSA Act;  and (5)\tfailure of the authorities to follow\nthe  guidelines\t  framed  by  the  Government  rendered\t the\ndetention mala fide and discriminatory.\n     Dismissing the petition,\n^\n     HELD  :1.\t Section  8(e)\tof  the\t Act  does  not\t bar\nrepresentation by  a lawyer  1 but  only lays  down that the\ndetenu cannot  claim representation by a lawyer as of right.\nThe Act has given the Board a discretion to permit or not to\npermit representation  of the detenu by counsel according to\nnecessity in  a particular  case. In  the instant case after\nthe rejection of the request the Board reviewed his case and\ngave its opinion on which alone the Government confirmed the\ndetention. [1033 G]\n     2(a) When\ta   document  containing   the\tgrounds\t  of\ndetention is  supplied to  the detenu  he is not entitled to\nknow which  part or  parts of  the grounds was or were taken\ninto consideration  by the  detaining authority in detaining\nhim. lt\t will be  for the  Court to  judge whether the facts\nnarrated constituted the grounds of detention or which facts\nmight possibly\tenter and  influence the detaining authority\nin coming to its subjective satisfaction. [1035 F-G]\n     (b)  The question whether or not import of palladium is\nprohibited is  an information on a question of law and could\nhave been obtained by the detenu from the relevant statutes,\nrules etc.  The Government  is not  under any  obligation to\nfurnish him  with legal\t information which is available from\nlegal literature.  The detaining  authority is only required\nto comply  with the  requirements of  article 22(S)  of\t the\nConstitution. [1336 A-B]\n     (c)  The plea  that the  detenu did  not  know  whether\npalladium was  a precious metal is not a permissible plea on\nthe ground  of public  policy. Any  detenu may plead that he\nhad no\tknowledge that\tgold or\t silver is a precious metal.\nThat apart,  the detenu\t in his statement before the Customs\nAuthorities had\t stated that  he purchased  the metal from a\ndealer in  precious metals  and that  he had  smuggled it to\nmake profit.  Though not  a  prohibited\t article,  it  is  a\ndutiable article. [1036 E-F]\n     3.\t  In passing  a\t detention  order,  the\t authorities\nconcerned must\thave due regard to the object with which the\norder was  passed. Delay  simpliciter in passing an order of\ndetention after\t an incident  is not fatal to the detention.\nIn certain  cases delay\t may be\t unavoidable and reasonable.\nWhat  is   required  by\t law  is  that\tthe  delay  must  be\nsatisfactorily explained by the detaining authority. Neither\nhas the detaining authority any liability to tell or satisfy\nthe detenu  as to the causes of delay. It should satisfy the\nCourt that  there was  no infraction  of the  constitutional\nprovisions. In\tthe instant  case eleven  statements of\t the\ndetenu and  his wife  were recorded on various dates between\nJanuary 9, 1981 and April 7, 1981 and the order of detention\nhad been  issued after\tthe completion of the investigation.\n[1037 C-D; 1038 A-B]\n     4.\t  A prosecution\t or the\t absence of  it\t is  not  an\nabsolute bar  to an  order of H preventive detention. If the\nauthority is  satisfied that  the offender has a tendency to\nviolate laws  there will  be no bar to detain a person under\nthe Preventive\n1030\nDetention Act  in  order  to  disable  him  to\trepeat\tsuch\noffences. What\tis required  is that the detaining authority\nshould satisfy\tthe Court  that it  had in mind the question\nwhether prosecution  was sufficient  in the circumstances or\nthe case. In the instant case the detaining authority stated\nthat  the   prosecution\t under\tthe  ordinary  law  was\t not\nsufficient for\tpreventing  the\t detenu\t from  indulging  in\nsimilar activities in future. [1039 B-D\n     5(a) The guidelines issued by the Government, were of a\nconfidential nature  and intended  to guide  the customs and\nthe intelligence  officials and\t have no force of law. There\ncan be no valid complaint of discrimination in arresting and\nbringing to book a particular offender under the Customs Act\nor under any Preventive Detention Law. [1040 H]\n     (b)  The past conduct or antecedent history of a person\ncan appropriately  be taken  into consideration\t in making a\ndetention order.  In the  instant case\tthe detenu  admitted\nthat he\t had a\thome in\t Bombay and  business in Muscat; his\npassport showed that he was moving between India and Muscat;\nhe  smuggled  palladium\t into  India  to  make\tprofit.\t The\ndetaining authority  was well  within  its  jurisdiction  in\ntaking into  consideration all\tthese facts and subjectively\ncoming to  the satisfaction  whether  or  not  he  would  be\nrepeating his activities.\n\t\t\t\t\t\t  [104] C-D]\n     6.\t  The High  Court under\t article 226  and this Court\neither under  article 32  or Article 136 of the Constitution\ndo not\tsit in appeal on the orders of preventive detention.\nThey have to see whether the formalities enjoined by article\n22(S) have been complied with by the detaining authority and\nif that has been done the Court cannot examine the materials\nbefore it  and find  that the detaining authority should not\nhave been  satisfied on the materials before it and detained\nhim under the Preventive Detention Act. That is the function\nof an appellate court. [1041 F-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDlCTlON:  Writ  Petition  (Criminal)\t No.
\n3662 of 1981
\n     (Under Article 32 of the Constitution of India)
\n     Ram  Jethmalani   and  Miss  Rani\tJethmalani  for\t the
\nPetitioner.\n<\/p>\n
     O.P. Rana and R.N. Poddar for the Respondents.
\n     The Judgement of the Court was delivered by
\n     BAHARUL ISLAM,  J. By this petition under Article 32 of
\nthe  Constitution  of  India,  Smt.  Hemlata  Kantilal\tShah
\n(hereinafter the ‘wife’) has challenged the detention of her
\nhusband\t Shri  Kantilal\t Nagar\tDas  Shah  (hereinafter\t the
\ndetenu)\t who  was  detained  by\t the  State  of\t Maharashtra
\n(Respondent No.\t 1) by\torder dated  June 3, 1981 under Sub-
\nsection (1) of Section 3 of the Conservation of
\n1031<\/span>
\nForeign Exchange and Prevention of Smuggling Activities Act,
\n1974 A\t(hereinafter the ‘Act”). The material facts on which
\nthe grounds  of detention  have been  based may\t be  briefly
\nstated as follows:\n<\/p>\n
     2.\t  On January  8, 1981,\tthe detenu with his wife and
\ntheir minor  daughter, Miss  Chaya Kantilal Shah, arrived in
\nBombay from  Muscat by\tFlight No. AI 883. The petitioner at
\nthe  customs  clearance\t counter  of  the  airport  appeared
\nnervous\t and   was  hasty   in\tclearing  her  baggage.\t The
\nIntelligence officer  of the  Air Customs  Unit who had been
\npresent at the counter on receipt of secret information kept
\na close\t watch on  her. When  the  family  reported  at\t the
\ncustoms counter,  the Intelligence  officer approached\tthem
\nand asked for their passports. It was found that the detenu,
\nthe petitioner\tand their  daughter were  all holding Indian
\npassports and were frequent travellers. When asked about the
\ncontents of  the baggages  and for declaration in respect of
\ngold, watches,\tand other valuable items, the detenu replied
\nin the\tnegative. The  wife was\t asked to  present her purse
\nwhich was  kept in  a corner  of the Customs counter covered
\nwith other  pieces of  baggage. In the said purse, one small
\ntobacco tin  marked “Three Nuns” was found. The tin appeared
\nto be unusually heavy and as such the detenu was asked again
\nto declare  the\t contents.  The\t declaration  was  that\t the
\ncontents were  some  coins  and\t that  the  tin\t was  to  be
\ndelivered to one Torahim in Bombay. Not being satisfied with
\nthe reply,  two independent panchas were called and in their
\npresence and in presence of the detenu and his wife, the tin
\nwas opened  and 48  slabs of ‘Palladium’ metal each weighing
\none ounce  were\t found.\t The  baggage  was  then  thoroughly
\nexamined in  the presence of the detenu and his wife and the
\npanchas. The  examination resulted  in recovery\t of 93\tmore
\nslabs of  ‘Palladium’ concealed\t in cheese  packets, and  in
\nthermocol. Thus\t altogetller 141 slabs of ‘Palladium’ valued
\nat Rs.\t3,54,192.00 were  recovered. They were seized by the
\nCustoms officer.\n<\/p>\n
     3.\t  The detenu  and his  wife were  then led  to their
\nresidential premises of Flat No. 194, 19th floor, Persepolis
\nApartment, Cuff\t Parade, Bombay-S,  standing in\t the name of
\nthe wife. The premises were searched under a search warrant.
\nThe search  resulted in\t the recovery  of (I) Philips colour
\nT.V.  valued   at  Rs.\t18,00000;(2)  Akai  Video  Cassettee
\nRecorder valued\t at Rs.\t 24,000; (3)  Sharp  3-in-one  Model
\nvalued at  Rs. 6,000,00\t and  (4)  General  Air\t Conditioner
\nvalued at Rs. 15,000. All these articles were also seized by
\nthe Customs officer.\n<\/p>\n
1032<\/span><\/p>\n
     4.\t  On the  following day, the detenu made a statement
\nwhich was recorded under Section 108 of the Customs Act. The
\ndetenu stated  that he\thad been  in Muscat  for the last 40
\nyears and  had business\t of ready-made\tgarments there;\t and
\nthat he\t was a wealthy man with two wives named Hasumati and
\nHemlata (the  petitioner), The\ttwo wives  were\t staying  in
\nBombay at  Cuff Parade\tin separate  apartments. The  detenu
\nfurther stated\tthat two  months ago  he had  come to Bombay
\nwhere he  had come  to know from Zaveri Bazar that smuggling
\nof ‘Palladium’\twas a profitable business. He there fore had
\npurchased the 141 slabs of ‘Palladium’ of one ounce each for
\n9000 omani Riyals from one Pursottam Kanji in Muscat who was
\na dealer  in precious  metals.\tBefore\tleaving\t Muscat\t for
\nBombay, he had packed the 141 bars of Palladium in the three
\ncontainers aforesaid.  The detenu also stated that the Sharp
\n3-in-one had been presented to him by His Highness Sultanbin
\nHamed-Al-Said of Muscat in October, 1980, and that the other
\nthree articles\thad been  purchased by\thim from  the  Omani
\nConsul General,\t Mr. Salim  Hakim. The detenu further stated
\nthat he\t took  full  responsibility  for  the  141  bars  of
\nPalladium seized and his wife had nothing to do with them.\n<\/p>\n
     5.\t  Mr. Ram  Jethmalani, learned counsel appearing for
\nthe petitioner makes the following submissions before us:\n<\/p>\n
     (I)  The detenu  asked for\t legal representation before
\n\t  the Advisory\tBoard by  letter dated July 31, 1981
\n\t  but it was arbitrarily rejected on August 3, 1981,
\n\t  thereby causing serious prejudice to the detenu.
\n     (II) After his  detention, the  detenu  asked  for\t six
\n\t  particulars\tto    enable   him   to\t  make\t the
\n\t  representation; only\tone particular was furnished
\n\t  and five  were refused  by the  authority  by\t its
\n\t  letter  dated\t July  21,  1981  (Ex.\tA),  thereby
\n\t  depriving  the   detenu  from\t  making  a   proper
\n\t  representation.\n<\/p><\/blockquote>\n
     (III)The Government  had framed guidelines in regard to
\n\t  detention. The  authority however  did not  follow
\n\t  these guidelines in the case of the petitioner; so
\n\t  the  order   of  detention   was  mala   fide\t and
\n\t  discriminatory.\n<\/p><\/blockquote>\n
     (IV) That the  case of  the petitioner  is peculiarly a
\n\t  case in  which  the  prosecution  was\t the  normal
\n\t  remedy; and
\n1033<\/span>
\n     (V)  That the  cause of  detention arose  on January 8,
\n\t  1981 A  in the airport and there was no reason for
\n\t  the  unusual\t delay\tin   passing  the  order  of
\n\t  detention on June 6, 198 1 .\n<\/p><\/blockquote>\n
     6.\t  We now  proceed to  examine the contentions one by
\n\t  one.\n<\/p><\/blockquote>\n
     (I)  Legal representation before the Advisory Board.<\/p><\/blockquote>\n
     Learned counsel for the petitioner has placed before us
\na copy\tof the\tletter dated  July 31, 1981, addresed to the
\nSecretary, Advisory  Board by the detenu’s counsel, Mr. G.L.
\nAjwani. Mr.  Ajwani referred to an earlier letter dated July
\n10,  1981,   wherein  he  had  requested,  inter  alia,\t for
\npermission to  the detenu  to be  represented by an advocate
\nbefore the  Advisory Board.  The Secretary  of the  Advisory
\nBoard sent  a reply  to Mr. Ajwani, who was informed that in
\nview of\t Section 8  (e) of  the\t Act,  the  detenu  “is\t not
\nentitled to  appear before  the Advisory  Board by any legal
\npractitioner. The  Advisory Board  has not permitted a legal
\npractitioner to appear in any reference made to it under the
\naforesaid Act and hence your request cannot be acceded to.”\n<\/p>\n
     Section 8 (c) reads as follows:-\n<\/p><\/blockquote>\n
\t  “For the purposes of sub-clause (a) of clause (4),
\n     and sub-clause  (c) of clause (7), of article 22 of the
\n     Constitution,-\n<\/p><\/blockquote>\n
     … …\n<\/p><\/blockquote>\n
     (e)  a person  against whom  an order  of detention has
\n\t  been made  under this Act shall not be entitled to
\n\t  appear by  any legal\tpractitioner in\t any  matter
\n\t  connected  with  the\treference  to  the  Advisory
\n\t  Board. ..”<\/p><\/blockquote>\n
     Section 8 (e) has not barred representation of a detenu
\nby a  lawyer. It only lays down that the detenu cannot claim
\nrepresentation by  a lawyer  as of  right. It  has given the
\nBoard a discretion to permit or not to permit representation
\nof the\tdetenu by  counsel according  to the  necessity in a
\nparticular  case.  Certain  cases  may\tbe  complicated\t and
\nassistance of  lawyers may  be necessary  on behalf  of\t the
\nparties to  explain the\t facts and law involved in the case.
\nIn the instant case, the submission is that the rejection of
\nthe request  of the detenus counsel by the advisory Board on
\nthe ground that
\n1034<\/span>
\nin the\tpast no\t legal representation  had been\t allowed  on
\nbehalf of  any detenu  has been\t based on a misconception of
\nthe law.  We are  unable to  accept the\t submission  of\t the
\nlearned counsel on two grounds; (i) the Advisory Board whose
\naction is  complained of  is not a party before us; and (ii)
\nour decision on the point would be merely academic. It would
\nbe academic  because after  rejection of  the  request,\t the
\nBoard reviewed\tthe case  of the detenu and gave its opinion
\nwhereupon the Government confirmed the detention.\n<\/p>\n
     (II) The second  submission of learned counsel was with
\n\t  regard to  non-supply with particulars. Mr. Ajwani
\n\t  aforesaid sent  a letter  (Ex. A)  dated July\t 10,
\n\t  1981\tto   ,\tthe   Assistant\t Secretary   to\t the
\n\t  Government, Home  Department (Special), Government
\n\t  of Maharashtra.  In that  letter he  requested the
\n\t  Government to furnish six ‘informations’ mentioned
\n\t  in the letter. They were as follows:-\n<\/p>\n
\t  (1)  The name\t and designation  of the  officer on
\n\t       whose satisfaction the order of detention was
\n\t       made and\t relevant authority  under the rules
\n\t       of business,  enabling the  said\t officer  to
\n\t       pass  detention\t orders\t on  behalf  of\t the
\n\t       Government.\n<\/p>\n
\t  (2)  The date\t on which the proposal to detain was
\n\t       received by the detaining authority.\n<\/p>\n
\t  (3)  Whether facts  mentioned in  Para  3  of\t the
\n\t       grounds of  detention have  been used against
\n\t       the detenu for making the order of detention.
\n\t  (4)  The provision  of law  under which the import
\n\t       of Palladium is prohibited.\n<\/p>\n
\t  (5)  Whether the  detaining authority has accepted
\n\t       or  rejected  my\t client’s  story  about\t the
\n\t       acquisition  of\tcolour\tT.V.,  Akai  cassete
\n\t       Video recorder,\tAir conditioner\t etc. If  it
\n\t       has been\t rejected, then\t the material on the
\n\t       basis of which this decision was taken, and
\n\t  (6)  Whether any inquiries, if any, were made from
\n\t       oman consulate  or from\tconsul\tGeneral\t Mr.
\n\t       Salim kim.’ ‘
\n1035<\/span>
\n     Learned counsel  submits that  the “information’ sought
\nunder A item (I) of the letter has been furnished and he has
\nno grievance  about it.\t But  none  of\tthe  remaining\tfive
\n‘informations’ were  furnished. The  submission\t of  learned
\ncounsel is  that the  Government is  bound to disclose under
\nwhich provision\t of law\t import of  Palladium is prohibited;
\ntheir failure  to disclose  this ‘information’\tdeprives the
\ndetenu from making a proper representation.\n<\/p>\n
     Items 3,  5 and  6 are  akin. With\t regard to item (3),
\nwhether the  facts mentioned  in para  (3) of the grounds of
\ndetention were\tused against the detenu for making the order
\nof detention,  Shri D.N.Capoor,\t Secretary to the Government
\nof Maharashtra,\t Home Department,  in his counter affidavit,
\nhas stated in paragraph 20 of the affidavit:\n<\/p>\n
\t  “…I have  not passed  the order  of detention on
\n     the ground that the four items seized from the detenu’s
\n     house were\t smuggled. I  say that\tI have mentioned the
\n     seizure of\t the said  goods in the grounds of detention
\n     as narration  of facts. I say that paras 3 and 4 of the
\n     grounds of detention are the narrations of the fact and
\n     the same is not a ground for detention…”<\/p><\/blockquote>\n
     In our  opinion the  request  of  the  detenu  for\t the
\ninformation whether  the detention  was inter  alia based on
\nthe seizures of the four articles mentioned in para 3 of the
\nlist of\t grounds and  the reply\t of  the  authority  to\t the
\nrequest were irrelevant. When an order of detention together
\nwith the  grounds of  detention is  served on  a detenu, the
\ndetenu may ask for particulars on which a ground is based if
\nthey are  not already there. When a document containing what
\nare called  “grounds” which  often consist of the background
\nof a  case, narration of facts and instances of the detenu’s
\nactivities, is\tsupplied to  the detenu,  the detenu  is not
\nentitled to know which part or parts of the ‘grounds’ was or
\nwere taken  into consideration\tand which not. The Court may
\nnot take into consideration any reply given by the detaining
\nauthority to  such an  enquiry; for,  the reply\t may  be  an
\nafterthought. It  will be for the Court to judge whether the
\nfacts narrated\tconstitute a  ground of\t detention or  which
\nfacts might  possibly  enter  and  influence  the  detaining
\nauthority in coming to its subjective satisfaction.\n<\/p>\n
1036<\/span><\/p>\n
     The information sought as per clause (4) of the letter,
\nnamely, the provision under which the import of Palladium is
\nprohibited is  equally untenable.  Whether or not the import
\nof Palladium  is prohibited  or not  is an  information on a
\nquestion of  law and can be obtained from Statutes, Rules o}
\nNotifications. In  our opinion,\t the Government is not under
\nany liability  to furnish  the detenu with legal information
\navailable  from\t legal\tliterature.  The  liability  of\t the
\ndetaining authority  is only  to comply with the requirement
\nof Sub-Article (5) of Article 22 of the Constitution.\n<\/p>\n
     In this case, it appears from Schedule I, Appendix 2 to
\nthe Imports (Control) order, 1955 (as amended upto March 31,
\n1980) that  the articles  mentioned against  item  71.09  as
\n“Platinum and  other metals of the platinum group, unwrought
\nor semi-manufac-tured”\tappearing  under  Chapter  71  under
\nwhich are  mentioned  ‘Pearls,\tprecious  and  semi-precious
\nStones,\t precious   Metals,  Rolled   Precious\tMetals,\t and
\nArticles thereof; Imitation Jewellery, Coin.’ In the counter
\naffidavit the  detaining authority has stated that Palladium
\nis a  precious metal  belonging to  the platinum  group. The
\nsubmission of  learned counsel\tis that\t the detenu even did
\nnot know whether Palladium was a precious metal belonging to
\nthe Platinum  group and\t the Government’s failure to furnish
\nhim with  that ‘information’  prevented him  from  filing  a
\nproper\trepresentation.\t  We  are   unable  to\taccept\tthis
\nsubmission, inasmuch  as the  pela is not permissible on the
\nground of  public, policy  for, any detenu may plead that he
\ndoes not know whether gold or silver is a precious metal. Be
\nthat as\t it may,  the detenu stated in his statement that he
\nhad purchased  the palladium  from the\tshop of\t a dealer in
\nprecious metal at Muscat and that he had smuggled that metal
\nto make\t profits. Though  palladium may\t not be a prohibited
\narticle it  is admittedly  a dutiable  article\tand  it\t was
\nadmittedly smuggled by the detenu.\n<\/p>\n
     (V)  Delay
\n     The submission  of learned\t counsel is  that the detenu
\nwas arrested  on January 9, 1981 but was detained on July 6,
\n1981. The  submission is  that\tthis  delay  was  fatal.  In
\nsupport\t of   his  contention,\t learned  counsel   for\t the
\npetitioner cited  before us  three decisions  of this  Court
\nreported in A.I.R. 1974 S.C. 1264, A.l.R. 1974 s.C. 2066 and
\nA.I.R. 1975  S.C. 1408. in A.I.R. 1974 S.C. 1264, this Court
\nheld that  in passing  a detention  order,  the\t authorities
\nconcerned must\thave due regard to the object with which the
\norder
\n1037<\/span>
\nwas passed.  If the  object was\t to  prevent  disruption  of
\nsupplies of  A foodgrains  prompt action should be taken. In
\nthe absence  of any  explanation regarding  the\t delay,\t the
\norder of detention, passed with a view to prevent disruption
\nof supplies  of foodgrains on the grounds based on incidents
\nof removal  of rice  which took\t place\tabout  seven  months
\nearlier, was  invalid. In  A.I.R. 1974\tS.C.  2066  (supra),
\nthere was inordinate delay and no proximity in point of time
\nbetween the  alleged prejudicial  activity of the petitioner
\nand the order of detention. The Court found that a period of
\nnine months  had elapsed  between the incident and the order
\nof detention;  and as the delay of nine months in the making
\nof the\torder for  detention after  the alleged incident had
\nnot been  explained, order  of\tdetention  was\theld  to  be
\ninvalid. Delay\tipso facto  in passing an order of detention
\nafter an incident is not fatal to the detention of a person,
\nfor,  in   certain  cases   delay  may\tbe  unavoidable\t and
\nreasonable. What  is required  by law is that the delay must
\nbe satisfactorily examined by the detaining authority.\n<\/p>\n
     In the  case in  hand in the counter affidavit filed on
\nbehalf of  the detaining  authority, it\t has been  stated in
\nparagraph 16 as follows:-\n<\/p>\n
\t  ” .the  detenu was  arrested on  9th January, 1981
\n     and was  detained on  6th July,  1981.  Thereafter\t the
\n     Customs Authorities  carried on  further  investigation
\n     aud as  can be seen from the list of the statements and
\n     documents annexed\tto  the\t grounds  of  detention,  11
\n     statements of  the detenu including the statement dated
\n     7th  April,   1981\t were\trecorded  by   the   Customs
\n     Authorities . .. I therefore say that there is no delay
\n     in passing\t the order  of detention  as alleged  by the
\n     petitioner .  the present\torder of  detention has been
\n     issued after completing the investigation.”<\/p><\/blockquote>\n
     From the foot of the document containing the grounds of
\ndetention, it  appears that  the eleven\t statements  of\t the
\ndetenu and  his wife  were recorded on various dates between
\nJanuary 9, 1981 C-: and April 7, 1981.\n<\/p>\n
     7.\t  The submission  of learned  counsel  is  that\t his
\ngrievance is  not so  much on  the time lag or delay between
\nthe date  of arrest  and the  date of  detention;  his\treal
\ngrievance is  in not  furnishing with  the information as to
\nthe cause  of the delay so as to enable the detenu to file a
\nproper representation before the Advisory Board for its
\n1038<\/span>
\nconsideration. In  our opinion, the submission is untenable.
\nThe detaining  authority is in no legal liability to tell or
\nsatisfy the  detenu as\tthe causes  of delay; it is under an
\nobligation to satisfy the court as to the causes of delay to
\nshow that  there was  no infraction  of\t the  constitutional
\nprovisions laid\t down under Sub-Article (S) of Article 22 of
\nthe  Constitution.  In\tour  opinion,  the  delay  has\tbeen
\nsatisfactorily explained  by the  authority in its affidavit
\nand it has not vitiated the detention.\n<\/p>\n
     8. (lV) PROSECUTION
\n     The next  point urged  by Mr. Ram Jethmalani is that in
\nthe instant  case, the\tproper course for the Govermnent was
\nto prosecute and convict the detenu for the offence, if any,
\nfor violation  of the  provisions of  the  Customs  Act.  In
\nsupport of  his contention he cites a decision of this Court
\nreported in  [1980] ; S.C.R. 54. In that decision, the Court
\nafter reviewing\t a number  of cases  summarised the  law  as
\nfollows:-\n<\/p>\n
\t  “The\tordinary  criminal  process  is\t not  to  be
\n     circum- vented  or short-circuited\t by ready  resort to
\n     preventive detention. But, the possibility of launching
\n     a criminal\t prosecution is\t not an\t absolute bar  to an
\n     order of preventive detention. Nor is it correct to say
\n     that if  such possibility is not present to the mind of
\n     the detaining  authority  the  order  of  detention  is
\n     necessarily bad.  However, the failure of the detaining
\n     authority to  consider the\t possibility of\t launching a
\n     criminal prosecution  may, in  the circumstances  of  a
\n     case,  lead   to  the  conclusion\tthat  the  detaining
\n     authority\thad  not  applied  its\tmind  to  the  vital
\n     question whether  it was  necessary to make an order of
\n     preventive detention.  Where an  express allegation  is
\n     made that\tthe order  of  detention  was  issued  in  a
\n     mechanical fashion\t without keeping present to its mind
\n     the question  whether it  was necessary to make such an
\n     order when\t an ordinary criminal prosecution could well
\n     serve the purpose, the detaining authority must satisfy
\n     the Court\tthat the  question too\twas  borne  in\tmind
\n     before  the   order  of  detention\t was  made.  lf\t the
\n     detaining authority fails to satisfy the Court that the
\n     detaining authority  so bore  the question\t in mind the
\n     Court would  be justified in drawing the inference that
\n     there was\tno application\tof the mind by the detaining
\n     authority\tto   the  vital\t  question  whether  it\t was
\n     necessary to preventively detain the detenu.”<\/p><\/blockquote>\n
1039<\/span><\/p>\n
     9.\t  The rule  laid down  is that\ta prosecution or the
\nabsence of  A it  is not  an absolute  bar to  an  order  of
\npreventive  detention;\t the  authority\t may  prosecute\t the
\noffender for  an isolated  act or  acts of  an\toffence\t for
\nviolation of  any criminal  law, but if it is satisfied that
\nthe offender  has a  tendency to  go on violating such laws,
\nthen there  will be no bar for the State to detain him under
\na Preventive Detention Act in order to disable him to repeat
\nsuch offences.\tWhat  is  required  is\tthat  the  detaining
\nauthority is  to satisfy  the Court  that it had in mind the
\nquestion whether  prosecution of  the offender\twas possible
\nand sufficient\tin the\tcircumstances of  the case.  In some
\ncases of  prosecution it  may not  be possible to bring home
\nthe culprit  to book  as in  case of a professional bully, a
\nmurderer or  a dacoit,\tas witnesses  do not come forward to
\ndepose against\thim out of fear, or in case of international
\nsmuggling, it  may not\tbe possible to collect all necessary
\nevidence without unreasonable delay and expenditure to prove
\nthe guilt of the offender beyond reasonable doubt.\n<\/p>\n
     10.  In the  instant case\tit has been submitted by Mr.
\nJethmalani that\t on the\t facts of this case, the prosecution
\nunder the ordinary law would have been sufficient; resort to
\npreventive detention  on  the  face  of\t it  was  manifestly
\nunreasonable. In the counter affidavit it has been stated by
\nthe detaining  authority that  it was  aware that the detenu
\nwas being  prosecuted under  the ordinary  law; but  it\t was
\nsatisfied that\tthe prosecution\t under the  ordinary law was
\nnot sufficient\tfor preventing\tthe detenu from indulging in
\nsimilar\t activities   in  future.   This  statement  of\t the
\nauthority satisfies the requirement of the rule laid down by
\nthis Court hl [1980] I S.C.R. 54 (supra).\n<\/p>\n
     11.(III)  The last\t submission of\tlearned counsel\t was
\nthat the  detention was\t mala fide  and discriminatory.\t The
\nsubmission WIS\tthat it\t was opposed  to the guidelines laid
\ndown and  publicised  by  the  Government;  under  the\tsaid
\nguidelines, it\twas submitted,\tdetention  was\tnot  ordered
\nexcept when  the activities  of the  person concerned were a
\npart  of   an  organised   crime  involving  conspiracy\t and
\ncontinued activities;  the  guidelines\tdid  not  permit  or
\nenvisage detention  for isolated act of contravention of the
\nCustoms Law.  In reply\tit has\tbeen stated  in the  counter
\naffidavit that\tthe detaining  authority was  aware that the
\ndetenu came to the adverse notice of the Customs Authorities
\nfor the first time in the smuggling incident dated 8th\/
\n1040<\/span>
\n9th January,  1981; that the activities of the detenu on the
\nbasis of  which prognosis was made was reasonably suggestive
\nof a  repetitive tendency  or inclination on the part of the
\ndetenu\tto  act\t likewise  in  future;\tthat  the  order  of
\ndetention was  essentially a  precautionary measure  and was
\nbased on the reasonable prognosis of the future behaviour of
\na person  based on  his past  conduct judged in the light of
\nthe surrounding\t circumstances. It  has further been stated:
\n“Such past  conduct may\t consist of  one single\t act or of a
\nseries of  acts. I say that large quantum or Palladium metal
\nbrought, the  nature in\t which it was concealed coupled with
\nthe  detenu’s  conduct\tin  not\t disclosing  the  fact\twhen
\nquestioned by  the customs  authorities clearly\t demonstrate
\npotentiality for continued criminality and indicate previous
\npractice, experiment  and expertise.  In the given case even
\nthe first act of this kind can be termed to be the beginning
\nof continuing  criminal activity.  I say in the present case
\nthe nature  of the  act and its magnitude clearly justify an
\ninference that\tif the\tdetenu was not detained he is likely
\nto indulge  in commission of such acts in future. I say that
\nthe detenu  admitted in\t his statement dated January 9, 1981
\nthat he\t wanted to  smuggle the\t goods under  seizure as  he
\nwanted to sell the same in Bombay market and earn profit.\n<\/p>\n
     12.  The past conduct or antecedent history of a person
\ncan  appropriately   be\t taken\tinto  account  in  making  a
\ndetention order.  It is\t indeed largely\t from  prior  events
\nshowing tendencies  or inclinations  of\t a  person  that  an
\ninference can be drawn whether he is likely in the future to
\nact in\ta manner  prejudicial to the maintenance of supplies
\nand services  essential to  the\t community  or\this  act  of
\nviolation of  foreign exchange regulations and his smuggling
\nactivities are\tlikely to  have deleterious  effect  on\t the
\nnational economy.\n<\/p>\n
     13.  With regard  to the  confidential guidelines,\t the
\naverment of the detaining authority in the counter affidavit
\nis that\t the guidelines\t given by the Government were secret
\nand confidential  instructions which  had no  binding force;
\nbut yet they were taken into consideration while passing the
\norder of detention.\n<\/p>\n
     The  guidelines  were  necessarily\t of  a\tconfidential
\nnature\tand   were  intended   to  guide   the\tCustoms\t  or
\nIntelligence officers as to how to act and what to do in the
\ndetection and  apprehension of\tsmugglers. They\t do not have
\nany force of law; and there cannot be any valid complaint of
\ndiscrimination? if any, in arresting and bring-\n<\/p>\n
1041<\/span><\/p>\n
ing to\tbook a\tparticular offender under the Customs Act or
\nunder A any Preventive Detention Law.\n<\/p>\n
     14, With  regard to  the inquiry  of the  detenu as  to
\nwhether the  facts narrated  in paragraph  3 in the document
\ncontaining  the\t  grounds  of\tdetention  were\t taken\tinto
\nconsideration,\tit  may\t be  said  with\t justification\tthat
\nalthough paragraph  3  may  not\t constitute  an\t independent
\nground of  detention, there  cannot be any objection if this
\nfact possibly  entered into  the subjective  satisfaction of
\nthe  detaining\t authority  before   passing  the  order  of
\ndetention. The\tdetaining authority had of necessity to take
\ninto account all the relevant materials placed before it and
\nafter due  consideration thereof  might justifiably  come to
\nthe conclusion\tthat the  activities of\t a particular person
\nwere such  that he  had a  tendency to\trepeat\this  illegal
\nactivities. In the case in hand, the detenu himself admitted
\nin his\tconfession that\t he  has  his  home  in\t Bombay\t and
\nbusiness in  Muscat. His  passport  disclosed  that  he\t was
\nfrequently shuttling between Muscat and India. Admittedly he
\nsmuggled the  palladium in  question in order to make profit
\nby selling it to customers in India. The detaining authority
\nwould be  within its jurisdiction to take into consideration
\nall these  facts and  subjectively come\t to  a\tsatisfaction
\nwhether or not the offender may be repeating his activities.\n<\/p>\n
     15. It  is needless  to say  that the  High Court under
\nArticle 226 of the Constitution and the Supreme Court either
\nunder Article 32 or under Article 136 of the Constitution do
\nnot sit on appeal on the orders of preventive detention. The
\nnormal law  is that  when an  isolated offence\tor  isolated
\noffences  is  or  are  committed,  the\toffender  is  to  be
\nprosecuted. But,  if there  be a law of preventive detention
\nempowering the\tauthority to detain a particular offender in
\norder to  disable him  to repeat his offences, it can do so,
\nbut it\twill be\t obligatory on\tthe part  of  the  detaining
\nauthority to  formally comply  with the\t provisions of\tSub-
\nArticle (5)  of Article 22 of the Constitution of India. The
\nHigh Court  under Article  226 and  the Supreme\t Court under
\nArticle 32  has to  see whether\t the formalities enjoined by
\nArticle 22(5)  have been  complied  with  by  the  detaining
\nauthority. If  the formalities\thave been complied with, the
\nCourt cannot  examine the  materials before it and find that
\nthe detaining  authority should\t not have  been satisfied on
\nthe materials  before it  and detained\tthe detenu under the
\nPreventive Detention  Act, for,\t that is  the function of an
\nappellate Court
\n1042<\/span>\n<\/p>\n
     16. In  the instant case, we are not satisfied that the
\ndetaining  authority   has  violated   either  the  relevant
\nprovisions of  the Constitution\t or any of the provisions of
\nthe Act. This petition has no merit and is rejected.\n<\/p>\n
P.B.R.\t\t\t\t\t Petition dismissed.\n1043<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hemlata Kantilal Shah vs State Of Maharashtra & Ors on 30 October, 1981 Equivalent citations: 1982 AIR, 8 1982 SCR (1)1028 Author: B Islam Bench: Islam, Baharul (J) PETITIONER: HEMLATA KANTILAL SHAH Vs. RESPONDENT: STATE OF MAHARASHTRA & ORS. DATE OF JUDGMENT30\/10\/1981 BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) SEN, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-165288","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHemlata Kantilal Shah vs State Of Maharashtra & Ors on 30 October, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hemlata-kantilal-shah-vs-state-of-maharashtra-ors-on-30-october-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hemlata Kantilal Shah vs State Of Maharashtra & Ors on 30 October, 1981 - 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