1981 (10) TMI 172 - SC - Customs

Supreme Court Upholds Detention Order Despite Legal Representation Issues

HEMLATA KANTILAL SHAH Versus STATE OF MAHARASHTRA & ORS.

The Supreme Court upheld a detention order despite issues raised regarding legal representation, non-supply of particulars, delay in passing the order, ... Whether the detention was inter alia based on the seizures of the four articles mentioned in para 3 of the list of grounds and the reply of the authority to the request were irrelevant? Held that:- It is needless to say that the High Court under Article 226 of the Constitution and the Supreme Court either under Article 32 or under Article 136 of the Constitution do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed, the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Sub-Article (5) of Article 22 of the Constitution of India. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court. In the instant case, we are not satisfied that the detaining authority has violated either the relevant provisions of the Constitution or any of the provisions of the Act. This petition has no merit and is rejected. Issues Involved:1. Legal representation before the Advisory Board.2. Non-supply of particulars to the detenu.3. Delay in passing the detention order.4. Prosecution as an alternative to detention.5. Alleged mala fide and discriminatory detention.Issue-wise Detailed Analysis:I. Legal Representation Before the Advisory Board:The detenu requested legal representation before the Advisory Board, which was denied based on Section 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Section 8(e) states that a detenu is not entitled to appear by any legal practitioner in matters connected with the Advisory Board. The court clarified that this section does not bar representation by a lawyer but gives the Board discretion to permit or not permit such representation. The court found that the rejection based on the past practice of not allowing legal representation was a misconception. However, the court did not accept the petitioner's submission because the Advisory Board was not a party before the court, and the decision would be merely academic since the Board had already reviewed and confirmed the detention.II. Non-supply of Particulars to the Detenu:The detenu requested six specific particulars to make a proper representation, but only one was furnished. The court examined each request:- The court found that the request for the provision of law under which the import of Palladium is prohibited was untenable as it is a legal question that can be obtained from statutes.- The court stated that the detenu is not entitled to know which parts of the grounds of detention were taken into consideration.- The court held that the government is not liable to furnish legal information available from legal literature.- The court found that the detaining authority satisfactorily explained that the Palladium was a precious metal and that the detenu's lack of knowledge about its classification did not prevent him from making a proper representation.III. Delay in Passing the Detention Order:The detenu was arrested on January 9, 1981, but the detention order was passed on July 6, 1981. The court acknowledged that delay in passing a detention order is not fatal if satisfactorily explained. The detaining authority explained that the delay was due to ongoing investigations and the recording of multiple statements. The court found this explanation satisfactory and held that the delay did not vitiate the detention.IV. Prosecution as an Alternative to Detention:The petitioner argued that prosecution under ordinary law would have been sufficient. The court cited previous rulings that prosecution is not an absolute bar to preventive detention. The detaining authority must consider whether prosecution alone would suffice. The court found that the detaining authority was aware of the ongoing prosecution but was satisfied that it was not sufficient to prevent future similar activities by the detenu. This satisfied the requirement that the authority considered the possibility of prosecution before opting for preventive detention.V. Alleged Mala Fide and Discriminatory Detention:The petitioner argued that the detention was against government guidelines and discriminatory. The court noted that the guidelines were confidential and not binding. The detaining authority justified the detention based on the large quantity of Palladium smuggled and the detenu's conduct, indicating a potential for continued criminal activity. The court held that the past conduct or antecedent history of a person could be considered in making a detention order. The court found no violation of constitutional provisions or the Act by the detaining authority and dismissed the petition.Conclusion:The Supreme Court found no merit in the petition and dismissed it, upholding the detention order. The court emphasized that it does not sit in appeal on preventive detention orders and that the detaining authority had complied with the necessary constitutional and legal provisions.