TaxTMI 
TaxTMI 
1989 (7) TMI 341
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....ighing 10 tolas were seized. These gold pieces had foreign markings and the certified gold-smith after testing them by touch-stone-method opined the said five gold biscuits, of 24 ct. purity and of foreign origin. Accordingly the said gold biscuits were seized, valued at ₹ 1,80,000/- on the reasonable belief that they were smuggled into India. It is further stated that the said Praveen Kumar Shetty made a statement according to which the detenu supplied him the aforesaid gold biscuits to handover them to another person near Hotel Sreenivas. It was also stated in the said statement that during the last one year that Praveen Kumar Shetty had delivered gold biscuits many times at the Instance of the detenu. Consequently, the next day, i.e., on 10th September 1988 the statement of the detenu was recorded under Section 108 of the Customs Act in which the detenu stated that he was looking after his father's business in the textile shop at Mangalore; that last year when he was coming from Bombay the detenu came into contact with one Noorul Amine in the bus and during the course of conversation with him the said Noorul Amine offered to supply gold biscuits of foreign origin to th....
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....ment, result of follow up actions as detailed above and after duly considering the retractions made by you, I am satisfied that you were engaged in dealing in smuggled goods." 4. In answer to the Writ Petition, an affidavit in opposition was filed by the Director, Directorate of Enforcement, New Delhi, who as the Joint Secretary to the Government of India, had signed the order of detention. There is also a counter-affidavit filed by the Senior Superintendent, Central Prison, Bangalore, to traverse certain allegations made in the Writ Petition pertaining to him. 5. The learned Counsel for the petitioner urged three contentions, viz. - (i) The Detaining Authority wrongly invoked the provisions of Section 123 of the Customs Act against the detenu and this has vitiated the order of detention; (ii) The detenu was denied the assistance of a Counsel in spite of repeated requests and hence the order of detention contravenes the provisions of Articles 21 and 22 of the Constitution of India (vide Para-13 of the Writ Petition). (iii) The Detaining Authority has derived two different satisfactions as could be seen from para-10 of the grounds of detention (vide para-17 of the Writ Pet....
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....n of fastening the burden of proof on him under Section 123 will not arise. Further, the gold had already been seized, according to the authorities on 9-9-1988 from Praveen Kumar Shetty, and the detenu was not present at that time, at the place of seizure. The act of seizure was already over. In spite of this admitted position, para-9 states that the detenu failed to produce the general or special permission of the Reserve Bank of India for the importation of the said gold. Therefore, it has to be held that the entire para-9 is patently erroneous and that the Detaining Authority has not applied his mind to the relevant facts at all. 8. The question is, how far this statement found in para-9 of the grounds of detention would vitiate the order of detention. According to the learned Counsel for the first respondent, para-9 is an Independent ground and even if the said ground is bad, the detention can be sustained on other grounds referred in the grounds of detention. Strong reliance was placed on the decision of the Supreme Court in PRAKASH CHANDRA MEHTA v. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA AND ORS wherein Section 5A of the Act was interpreted. In addition to this, the....
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....ion of the mind and therefore each ground could have sustained the detention order. But in this case the test is whether there was an application of the mind to the vital facts of the case and in case there was no application of the mind to the vital facts of the case, can it be said that the subjective satisfaction was the real satisfaction? At para-71 It was stated in Prakash Chandra Mehta's case that -- "Article 22(5) of the Constitution has two elements: (i) communication of the grounds on which the order of detention has been made; (ii) opportunity of making a representation against the order of detention. Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the Detaining Authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism." Therefore no detention can be valid unless the Detaining Authority had applied his mind to the pertinent and proximate matters and in this case the said pertinent and proximate matters was the alleged se....