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1984 (2) TMI 367
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..... Anthoni Umunnokwe Ikechi, one Mrs. Mary Williams Udondem and one Mr. Azubike Augustine Nwangwa (two males and one female). These three persons arrived from Singapore by, the Air India Flight on that night. They paid for their packages on oral declaration without payment of duty, opting to go through the Green Channel of the Customs Hall, where Mr. Nwangwa was received by the detenu who was waiting with a white-coloured Ambassador car bearing Regn. No. TMR. 4860. Mr. Nwangwa kept his two suit cases in the dicky of the above said car. The other two passengers were about to load their cleared packages into the car. At this stage, the Customs Officers intercepted the three passengers, the detenu and the driver of detailed examination in the presence of witnesses on the basis of some information to the effect that they were carrying wrist watches in large quantities. The detenu gave his name as Ashok Kumar. The examination of the package of Anthoni U. Ikechi resulted in the recovery of 1630 Nos. of "Royal LCD Quartz" wrist watches made in Hong-Kong, 3750 Nos. Of watch batteries and some documents. These contrabands were found concealed inside the false bottom sides of the suit-cases. ....
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....dia Kucha Challam Daryagang, New Delhi -110006, by one of his country-men, Frank alias Kochies, and it was then only Ikechi came to know that the detenu and Frank were business partners in smuggled goods. The detenue had asked for his help in getting wrist watches from Hong-Kong where the detenu's brother Rakesh Kumar was doing business and the detenu told him that he would purchase an air ticket from Delhi to Bangkok, Honk-Kong and back to Bombay and that Anthoni Ikechi would have to bring watches given by the detenu's brother at Hong-Kong by concealing them is his suitcases, for which he would pay him Rs. 10,00. Ikechi would further state that the detenu gave the phone No. J. 721-7793/pf his brother Rakesh Kumar at Hong-Kong and told him that he would phone up his brother in Hong-Kong about Ikechi's arrival and asked Ikechi to leave for Hong-Kong on 29-6-1983 and bring the suitcases with the concealed watches that would be handed over to him by his brother Rakesh Kumar. Accordingly, he left for Hong-Kong on 28-6-1983 and landed in Bombay on 1-7-1983. Once again he went from Delhi to Hong-Kong with his wife with the tickets purchased by the detenu for the to-and fro jo....
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....nd received Augustine and took him to the car and Augustine placed his two followed him to the car and it was at that time the customs officials took all of them and the boxes and examined them, resulting in the recovery of the smuggled watches and the battery cells. After the seizure of the contrabands, the detenu and the three Nigerians were arrested at 4 p.m. on 21-8-1983 and produced at 8 p.m. before the Additional Metropolitan Magistrate (E.O.I.) who directed all the arrested persons to be kept in the customs House over-night and produced in the morning. Accordingly, they were produced before the Magistrate at about 12.05 p.m. on 22-8-1983. The detenu, Anthoni and Augustine complained before the Magistrate that they were beaten by the departmental officials and their statements were recorded by the Court. 4. The department has denied the allegation that they v/ere beaten. The court did not find any visible injury on any one of them. Besides, all the four stated before the court that the statements obtained by the department were not voluntary. Then, all of them were remanded to judicial custody till 3-9-1983. 5. Further investigations are in progress. All the goods seize....
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....by way of meeting the various submissions of the petitioner and ultimately stated that the order does not suffer from any vice or illegality. 8. The Second respondent has filed a formal counter stating that the detenu is detained in the Central Prison at Madras consequent upon the impugned order passed by the first respondent. 9. Mr. G. Ramaswami, learned counsel appearing on behalf of the petitioner, urged the following grounds against the validity of the order of detention:- (1) The non-placing before the detaining authority, of the statement of the driver of the taxi TMR 4860, which is a vital material for consideration while drawing the subjective satisfaction for passing the impugned order, and the non furnishing of the letter of retraction sent by the detenu to the Collector of Customs, Madras, on 1-9-1983, vitiate the order of detention. (2) The impugned order of detention is bad since it does not specify the categories of the offence in respect of which the said order was passed, but merely repeats only clauses (ii), (iii) and (iv) of sub-S (1) of Section 3 of the Act, by using the disjunctive word 'or' which would mean that the detaining aut....
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....nd others were produced for remand, and hence it cannot be contended that the sponsoring authorities have failed to place this document before the detaining authority before be passed the impugned order. 13. Mr. G. Ramaswami would strenuously contend that if the statement of the driver is inculpatory in nature, that statement would exclude the criminal liability of the detenu, that if it is exculpatory in nature it may incriminate the detenu and that therefore that document is a vital document which ought to have been placed before the detaining authority, because, had it been placed before him, it might have influenced the mind of the detaining authority in favour of the detenu in case that statement had been an inculpatory one completely excluding the liability of the detenu. This argument cannot be accepted for the following reasons, viz., (1) there were vital and material documents inclusive of the statements of the three Nigerians incriminating the detenu with the smuggling of the contrabands as well as the statement of the detenu himself, implicating himself with the smuggling activity in question, from which materials-the detaining authority had drawn his subjective satis....
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....than by engaging in transporting or concealing or keeping smuggled goods", has submitted that the satisfaction of the detaining authority was on the disjunctive and not the conjunctive grounds, which means that the detaining authority was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of any one of the specific and particularised acts enumerated in Cls. (ii) to (iv) of S. 3(1) of the Act. He would add that as the order stands, it would add that as the order stands, it would appear either that the detaining authority was not certain whether the alleged activities of the detenu related to any one of the acts falling under the abovesaid clauses or that he did not seriously apply is mind on the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically the language of S. 3(l), clause (ii) to (iv), and that when such equivocal language is used in an order and the detenu is not specifically told whether his alleged activities set out in the grounds of detention fell under one head or the other or all, the order would be bad in law on the ground of n....
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....junctive 'and' and not the disjunctive 'or' would be the appropriate word. There is, therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made". The above conclusion was reached following the observations made in Dr. Lohia v. Slate of Bihar (A.I.R. 1966 S. C. 740) which, according to their Lordships in Kishori Mohan's Case (A.I.R. 1966 S. C. 740), have clearly-brought out the distinction between each of the three concepts and the three imaginary concentric circles helped to delineate the respective areas of the three concepts. It was further held in Kishori Mohan's Case (A.I.R. 1972 S. C. 1749) that the true test is not the kind but the potentiality of the act in question and that one act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community, and added that this does not mean that there can be no overlapping the sense that an act cannot fall under two concepts at the same time. 19. In our view, this decision will not be of much assistance to t....
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....Narendra v. V.B. Gujral (A.I.R. 1979 S. C. 420), and submits that in the impugned order the disjunctive 'or' has been used only with reference to the three activities mentioned in Cl.(iii), but not between one another of clauses, (ii), (iii) and (iv), but on the other hand only the conjunctive 'and' is used while connecting the said clauses. In fact, in ground No. 4 of the grounds of detention, it is specifically stated: "The State Government, therefore consider that it is necessary to detain you under S. 3(l)(ii), (iii) and (iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.........." Therefore, it is clear that a close reading of paragraphs 2 and 4 of the grounds of detention would show that the disjunctive 'or' is used only while connecting the three activities mentioned in CI. (iii) alone but not while connecting the different Cls.(ii), (iii) and (iv), but on the other hand the conjunctive 'and' is used. Therefore, the use of the word 'or' in the order of detention in the lines order of detention. This is the view expressed by the Bench in Askaran Gulecha's Case (W.P. 774/78 of this Cou....
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....hich were carried on in the course of the same transaction. 23. In view of the discussions made above, we are of the view that the use of the disjunctive 'or' will not lead to any inference that the detaining authority, without applying his mind, has passed the impugned order with an element of casual-ness by mechanically, reproducing the language used in the various clauses of S. 3(l) of the Act. Therefore the second contention also has to fail. 24. Contention No. 3 :- Mr. G. Ramaswami, learned counsel for the petitioner, stating that the detenu herein, along with the three foreigners, was produced before the Magistrate on 21-8-1983 at about 8.10 P.M. and thereafter, under the directions of the Court, they all were produced on the next day, i.e., on 22-8-1983 at about 12.05 P.M. on which occasion all the four persons complained that they were beaten by the departmental officials and the statements obtained from them by the said officials were not voluntary, and that the detenu was ordered to be released on conditional bail on 31-8-1983 with the condition that he should report before the Assistant Collector of Customs every day, submits that the fact of the release of....
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.... State of West Bengal (A.I.R., 1975 S. C. 550) thus: "These safeguards cannot be regarded as substantial. They are essentially procedural in character and their efficacy depends on the care and caution and the sense of responsibility with which they are regarded by the detaining authority." Two of these safeguards, which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on arbitrary exercise of power, are to be found in this Article, which introduces two procedural requirements embodying the rule of Audi Alteram Partem to a limited but a crucial and compulsive extent". The constitutional imperatives enacted in this Article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, indicate to the detenu the grounds on which the order of detention has been made; and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preven....
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....aid two reasons, the grounds on which the order of detention is made should be communicated to the detenu and it is obvious that the 'grounds' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention, that is, on which the order of detention is based. 29. In Golam v. Stale of West Bengal (A.I.R. 1976 S. C. 754), the meaning, of the term 'grounds' occurring in Art. 22(5) and in S. 8 of the Maintenance of Internal Security Act, has been given as follows: "'Ground' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of S. 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Art. 22(5) and S. 8 and are required to be communicated to the detenu unl....
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....58), his Lordship Chinnappa Redely, J., in a concurring judgment, dealt with the implication of Art. 22(5) of the Constitution, thus: "The extent and the content of Art. 22(5) have been the subject-matter or repeated pronouncements by this Court. (vide State of Bombay v. Almaram ( A.I.R. 1951 S. C. 157), Dr. Ramkrishnan Bhardwaj v. State of Delhi, (1953 SCR 708) : A.I.R. 1953 SC 318), Shibbanial Saxena v. State of Jammu and Kashmir (1956 SCR 948). The interpretation of Act. 22(5), consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is well settled that a detenu has two rights under Art. 22(5) of the Constitution: (1) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the ground which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him". Mr. G. Ramaswami, learned counsel appea....
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.... making an effective representation. If so, the detention order on that account would be illegal. It may be that the record and bio-data of the detenu may disclose materials, which have no nexus or proximity or are vague or having regard to their nature or magnitude, are not such as would have been considered by the detaining authority as essential for his subjective satisfaction, in which case it will have no effect upon the validity of the detention order." The above judgment of the Supreme Court makes it clear that the materials having any proximity or nexus with the object of the detention in question or having regard to the nature of the activities, should be communicated to the detenu, enabling him to make an effective representation, and the omission to furnish to the detenu the other materials which do not have such proximity or nexus with the object, of the detention will not vitiate the order of detention. 35. In Bablu Das v. State of West Bengal (AIR 1975 S. C. 1513), the copy of the history-sheet of the detenu showing various other circumstances about the criminal antecedents of the detenu, which were placed before the detaining authority, was not communi....
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.... life or personal liberty, except in accordance with the procedure established by law. 37. In S. Gurdip Singh v. Union of India (AIR 1981 S. C. 362), the Supreme Court, after referring to the decision in Icchudevi's case observed that on proper construction Art. 22(5) of the Constitution, a service of the grounds of detention on the detenu can be completed only if they are accompanied by the documents or materials on which the order of detention is based. 38. Having referred to the principles laid down in Khudiram's Case and Icchudevi's case on this question of law, the Supreme Court in Shalini Soni v. Union of India (AIR 1981 S. C. 431), has held: ".........it is clear that 'grounds' in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. Grounds must be self-sufficient and self-explanatory. In our view, the copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the grounds." ' 39. The Supreme Court, reiterating the principles laid down in a series of decisions rendered by it, has observed in M.M. Pat....
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....resentation against the order or detention, and while doing so, the Supreme Court has referred to various decisions touching on this point. Ultimately, referring to the observations made in Khudiram's case ( AIR 1975 S. C. 550 : 1975 (2) SCR 8), the Supreme Court has held as follows: These observations cannot be construed as meaning that the evidence which was collected by the detaining authority must also be furnished to the detenu. As the very same paragraph of the judgment at page 839 of the report shows, what was that the basic facts and the material particulars which formed the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same the detenu cannot possibly make an effective representation." In that case, a contention was raised that the State Government had not supplied to the detenu therein the supporting material on which ground No. 1 of the grounds of detention was based. But, having regard to the facts of the case, the Supreme Court rejected the contention, pointing out that-- "......his right is to receive any material particular w....
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....thereby those which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu) must be communicated to the detenu within the time prescribed under S. 3(3) of the COFEPOSA and that without this the right to make representation cannot be meaningfully exercised." Laying emphasis on the observations with regard to the meaning of the principle, made by the Supreme Court in the above cases, Mr. P. Rajamanickam, the Public Prosecutor, would submit that only the copies of those documents, statements and materials which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain should be communicated. Then reliance was placed by the learned Public Prosecutor on Ummu Saleema's Case wherein the Supreme Court, after having referred to Icchudevi's case and Khudi Ram's case, has made the following observations: "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art. 22(5) fatal to the order of detention. It is only failure....
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....ention order. But, even if there is a possibility that certain materials on record would disclose that the activities of the detenu are having a nexus with the object of the preventive order, the Court would be justified in taking the view that those materials must have influenced the subjective satisfaction of the detaining authority and the omission to furnish those materials to the detenu would prejudice him in making an effective representation and on that account the detention order would e illegal. The burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority, because Art. 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life and personal liberty except in accordance with the procedure established by law. 44. However, the Court cannot lay down any hard and fast rule by listing out the kinds of documents which are essential to be supplied to the detenu, because the question as to whether a particular document is materially essential or relevant or has any nexus or proximity to the object of the order of detention or has been referred to casually or in passi....
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....t made by the department, if any, or at least the copy of the covering letter showing the denial, would definitely invalidate the order, because what the nature of the statement of denial is and by whom made are not known. As rightly pointed out by the learned Public Prosecutor the learned Magistrate has not found any visible injury on the person of any one accused inclusive of the detenu. Leaving apart the question whether the statement of denial was made even before the Magistrate or only before the detaining authority, the fact remains that the detaining authority had taken into consideration the statement of the detenu and other three Nigerians made before the Magistrate. The detaining authority seems to have rejected the plea of the extraction of their earlier statement under torture, not only on the basis of the denial by the department but also on the basis of the endorsement made by the Magistrate that he found no visible injury on their person. Had the detaining authority not taken into consideration this denial of the detenu and others made before the Magistrate, we could see some force in the submission made by Mr. G. Ramaswami. But, in as much as the detaining authority....