TaxTMI 
TaxTMI 
1978 (11) TMI 153
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....und grounded in a creek off the coast near village KimKhadi on the 20th August, 1977. On receipt of information regarding the grounding of the vessel the Customs officers, Hansot, visited the spot and examined the contents of the cargo aboard the aforesaid grounded vessel. It was laden with 12 rolls of stainless steel sheets each weighing one tonne, valued at Rs. 15,44,400/-. The aforesaid vessel and the contraband goods found aboard it were seized by the Customs officers for action under the Customs Act, 1962. They made inquiries about the whereabouts of the crew members of the aforesaid vessel 'Jamnaprasad' and were successful in apprehending them and the others involved. Intelligence gathered by the Customs officers clearly indicate that the appellant was the main person connected with the smuggling of the aforesaid cargo of contraband goods, namely 12 stainless steel sheets recovered from vessel 'Jamnaprasad' BLS-61. The appellant, who ostensibly carries on the business of manufacturing, sale and export of Umrao brand wick stoves, spray pumps, cash and jewellery metal boxes, in the name and style of "Umrao Industries" and has his factory for the manufacture of the aforesa....
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....mstances appearing, it was conceded that the grounds for detention set out the facts with sufficient degree of particularity and that it did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. The order of detention was, therefore, not challenged on the ground that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or for the making of any effective representation. It is argued that the detention of the appellant was, however, bad for two reasons namely, (1) the detention was in violation of the constitutional right guaranteed under Article 22(5), inasmuch as the Government withheld consideration of the representations made by the appellant till after the hearing before the Advisory Board, and (2) the impugned order of detention is bad due to nonapplication of mind inasmuch as the facts alleged clearly and distinctly show that the appellant did not himself smuggle the contraband goods. Both the contentions are, in our opinion, wholly devoid of substance. It is urged that the Government was under a constitutional obligation to consi....
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.... a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives! of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the view point contended for by the respondent is correct, the constitutional right under Art. 22(5) would be rendered illusory." Thus the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other. In Pankaj Kumar Chakrabarty & ors. v. State of West Bengal(1970] I SCR 543), this Court again considered cl. (5) of Art. 22 and enunciate the Following principle: "In our view, it is clear from cls. 4 and S of Art. 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his ....
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....thority to afford to the detenu the earliest opportunity to make a representation must implicitly mean That such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." The same procedural safeguards were reaffirmed by this Court in Jayanarayan Sukul v. State of West Bengal ([1970] 3 SCR 225) and Dhurus Kanu v. State of West Bengal.( AIR 1975 SC 571) The High Court in this case, and the Delhi High Court in Thaneshwar Singh v. The Union of India & ors.( Cr W. No 6 of 1978 decided on September 25, 1978 (Delhi High Court) appear to be labouring under misconception that merely because there is no express provision in s.8(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act placing an obligation to forward the representation made by the detenu along with the reference to the Advisory Board, unlike those contained in s.9 of the Preventive Detention Act, 1950 and s.10 of the Maintenance of Intemal Security Act, 1971 there is no obligation cast on the Government to consider t....
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.... a series of decision. It is not necessary to burden this judgment with citations of these decisions. The view to the contrary taken by the Bombay and the Delhi High Courts that these procedural safe- guards are not available to a person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is clearly wrong. The Constitution is all pervasive. All laws made by a State must, therefore, yield to constitutional limitations and restrictions. The citizen's right to personal liberty is guaranteed by Article 22 irrespective of his political beliefs, class, creed or religion. This Court has forged certain procedural safeguards in the case of preventive detention of citizens. These safeguards might be designated as a regulative 'Postulate of Respect', that is, respect for the intrinsic dignity of the human person. In pursuit of the idealistic considerations as to the inherent worth and dignity of men, the Parliament, in the light of the experience gained recently, repealed the Maintenance of Internal Security Act. The repeal of that Act is necessitated to promote the citizen's right to personal liberty, which is a fundamental and pervasive theme....
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....ood society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty." The constitutional safeguards embodied in Art. 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions of s. 8(b) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to prevent any arbitrary executive action. In the instant case, however, there was no infraction or the constitutional safeguards enshrined in Art. 22(5). We are satisfied that there was no failure on the part of the Government to discharge its obligation under Art. 22(5). The records of the Government as well as of Advisory Board have been placed before us It clearly shows that the Government had forwarded the two representations made by the appellant on the 4th and 6th of March, 1978, alongwith its comments in writing together with a forwarding letter on the 9th of March, 1978. From a bare perusal of the forwarding letter and ....
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....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 of a Secretary to that Government, specially em powered 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) smuggling goods, or (ii) abetting the smuggling of goods, or;" There is, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under s. 3 (1) of the Act. Nonetheless, the term "smuggling' as defined in s. 2(e) of the Act has the same meaning as in s. 2(39) the Customs Act, 1962, which, when read with s. 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling or contraband goods as well as all persons dealing in ....
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....June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for his over-stay. During his period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah port but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weath....