TaxTMI 
TaxTMI 
1990 (9) TMI 341
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..... The said diamonds and precious stones valued at about Rs. 70 lacs were attached under a Panchnama. In addition to the same foreign currency of the value of Rs. 10,706 was also recovered and attached. His passport was also seized. The other two persons were found to have swallowed 100 capsules each containing foreign currency of the total value of Rs. 6,99,930. The capsules were extracted from their persons and the currency was recovered and attached under a Panchnama. In addition thereto foreign currency of the value of Rs. 1,466.50 was also found on their person during their search and the same too was attached and seized. Their passports were also seized. All the aforesaid three persons belonged to Village Namboothalai of District Ramnath, Tamilnadu. Their state- ments were recorded on the same day i.e. 5th October, 1989. M.M. Shahul Hameed disclosed that his cousin Kasim, owner of a film company at Madras, had offered him a sum of Rs. 4,000 for smuggling diamonds, etc., to Hongkong. On his agreeing, he was trained and was sent to Bombay with one Mohammad who was to introduce him to Mohideen and Rahim who were supposed to entrust him with the diamonds, etc., to be carried to ....
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.... the letter of 12th October, 1989. They further admitted that what they had disclosed on 5th October, 1989 was both voluntary and correct. Their statements of retraction were also rejected by the Deputy Director of Revenue Intelligence on 20th October, 1989. All the three aforesaid persons were produced before the learned Additional Chief Metropolitan Magistrate, Esplanade. Bombay on 6th October, 1989. They were taken on remand by the police for investigation. Barring M.M. Shahul Hameed, the other two had preferred applications for bail which were kept for hearing initially on 27th October 1989 but the date was later extended upto 16th November, 1989. Their co-accused, Kasim was arrested on 6th October. 1989 and was produced before the Additional Chief Metropolitan Magistrate, Egmore, Madras. He too was taken on remand. On 19th October, 1989 he too had preferred a bail application which was kept pending as the investigation was in progress. Since the period of remand was extended from rime to time in the case of all the aforesaid four persons finally upto 16th November, 1989, the bail applications were also fixed for hearing on that date. In the meantime on 10th November, 1989 the....
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....ticle 136 of the Con- stitution, the wives of the detenus have also filed separate Writ Petitions (Criminal) Nos. 757,759 and 760 of 1990 under Article 32 of the Constitution. We have heard the three special leave petitions as well as the three writ petitions together and we proceed to dispose them of by this common judgment. The learned counsel for the petitioners raised several contentions including the contentions negatived by the High Court of Bombay. It was firstly contended that the detenus had made representations on 18th December, 1989 which were rejected by the communication dated 30th January, 1990 after an inordinate delay. The representations dated 18th Decem- ber, 1989 were delivered to the Jail Authorities on 20th December, 1989. The Jail Authorities despatched them by registered post. 23rd, 24th and 25th of December, 1989 were non-working days. The representations were received by the COFEPOSA Unit on 28th December, 1989. On the very next day i.e 29th December, 1989 they were forwarded to the sponsor- ing authority for comments. 30th and 31st December, 1989 were non-working days. Similarly 6th and 7th January, 1990 were non-working days. The comments of the sponsori....
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.... on the date of the passing of the detention orders as well as the service thereof. Besides, he submitted. it is apparent from the averments in paragraph 15 of the grounds of detention that the concerned authority was labouring under a misconception that the detenus were charged with a 'bailable' offence which betrays total non-application of mind. He further submitted that the delay in the service of the detention orders discloses that there was no urgency about ordering detention. Taking the last limb of the argument first, we may refer to the counter filed in the writ petitions in this behalf. Therein it is stated that after the detention orders were signed on 10th November, 1989, it was realised that certain documents which were not in Tamil language would have to be translated. The services of a professional trans- lator were requisitioned. Between 10th and 21st November, 1989 there were five holidays on 11th, 12th, 13th, 18th & 19th. As soon as the translations were ready and received by the Department, the police authorities were directed on 20th November, 1989 to execute the detention orders. This was done on 21st November, 1989, Thus the time taken between 10th and....
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....ected their applications but had adjourned them as the investigation was in progress. That gave rise to the belief that bail would be granted. His normal experience also was that in such cases courts ordinarily granted bail on the conclusion of the investigation. He, therefore, loosely described the offence as bailable and did not use that word in the technical sense of section 2(a) of the Code of Criminal Procedure. The High Court also pointed out that even in respect of non-bailable offences it is generally open to the Sessions Court and the High Court to release the accused on bail. It further points out that it is equally open to the Magistrate to release the accused on bail after a period of two months. In the circum- stances the High Court was of the opinion that the use of the expression 'bailable' cannot lead one to the conclusion that there was no application of mind. We are inclined to think that having regard to the background in which this expression is used in paragraph 15 of the grounds of deten- tion and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses n....
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....at the detenus would in all probability secure bail and if they are at large, they would indulge in the same prejudicial activity. This inference of the concerned officer cannot be described as bald and not based on existing material since the manner in which the three detenus were in the process of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf. Even the detenus in their statements recorded on 5th October, 1989 admitted that they had embarked on this activity after receiving training. The fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum speaks for itself. Similarly the fact that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance. All the three detenus had prepared them- selves for indulging in smuggling by creating cavities in their bodies after receiving training. These were not ordi- nary carriers. These were persons who had prepared them- selves for a long term smuggling programme and, therefore, the officer passing the detention orders was justified in....
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.... order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the officer passing the detention order. Eternal vigilance on the part of the authority charged with the duty of maintain- ing law and order and public order is the price which the democracy in this country extracts to protect the fundamen- tal freedoms of the citizens. This Court, therefore, empha- sized that before passing a detention order in respect of the person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge in prejudicial activity if not detained. That is why in Abdul Wahab Sheikh v.S.N. Sinha, [1989] 2 SCC 222 this Court held that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that cogent and relevant material disclosed the necessity for making an order of detention. In that case the detention order was qu....
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....real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand. resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore. find it difficult to accept the cont....
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....ere not relied upon while arriving at the subjective satisfaction. We are also unable to appreciate how the declaration made by the detenu before proceedings to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future. In our judgment, the complaint that some documents which according to the detenu were relevant for making representation were not furnished by the Detain- ing Authority and, therefore, the order or the continuation of the detention is bad, is without any substance." In the counter it is specifically mentioned that 'these documents were not placed before the detaining authority nor the detaining authority has relied upon those documents while issuing the detention order'. The detenus would have been entitled to any document which was taken into consider- ation while formulating the grounds of detention but mere mention of the fact that certain searches were carried our in the course of investigation, which have no relevance to the detention of the detenus, cannot cast an obligation on the detaining authority to supply copies of those docum....
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.... or prejudiced his right, however slight or insig- nificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the peti- tioners point out any such prejudice. We are, therefore, of the opinion that the view taken by the Bombay High Court in this behalf is unassailable. The declaration under section 9(1) dated 20th December, 1989 is challenged on the ground that the second respondent failed to forward the copies of the document on which he placed reliance for arriving at the subject to satisfaction that the detenu were likely to smuggle goods out of and through Bombay Airport, an area highly vulnerable to smug- gling as defined in Explanation 1 to section 9(1) of the Act. Now if we turn to paragraph 2 of the declaration it becomes evident that the second respondent merely relied on the grounds of detention and the material in support thereto which had already been served on the detenu and nothing more. Counsel for the petitioners relying on a decision of the Bombay High Court in Nand Kishore Purohit v. Home Secre- ....