TaxTMI 
TaxTMI 
1985 (4) TMI 280
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....se 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 daugh....
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.... 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 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 Pragn....
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....n 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 Adv....
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....ent 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 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 f....
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....hree 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 c....
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.... 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 Ac....
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....ther 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. 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....
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....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 (includi....
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.... , 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....
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.... 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 exp....
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....ng 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 exceptional 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 the....
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....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....
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....under section 3(1) (a) (ii) of the Preventive Detention Act directing that 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 denia....
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....A 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 , (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 wi....
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....ion "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 stated in the confession are completely ignored , then the inf....
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....stoms 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....
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.... 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 adve....