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TMI Blog1981 (10) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... red nervous and was hasty in clearing her baggage. The Intelligence officer of the Air Customs Unit who had been present at the counter on receipt of secret information kept a close watch on her. When the family reported at the customs counter, the Intelligence officer approached them and asked for their passports. It was found that the detenu, the petitioner and their daughter were all holding Indian passports and were frequent travellers. When asked about the contents of the baggages and for declaration in respect of gold, watches, and other valuable items, the detenu replied in the negative. The wife was asked to present her purse which was kept in a corner of the Customs counter covered with other pieces of baggage. In the said purse, one small tobacco tin marked "Three Nuns" was found. The tin appeared to be unusually heavy and as such the detenu was asked again to declare the contents. The declaration was that the contents were some coins and that the tin was to be delivered to one Torahim in Bombay. Not being satisfied with the reply, two independent panchas were called and in their presence and in presence of the detenu and his wife, the tin was opened and 48 slabs of 'Pall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 3, 1981, thereby causing serious prejudice to the detenu. (II) After his detention, the detenu asked for six particulars to enable him to make the representation; only one particular was furnished and five were refused by the authority by its letter dated July 21, 1981 (Ex. A), thereby depriving the detenu from making a proper representation. (III)The Government had framed guidelines in regard to detention. The authority however did not follow these guidelines in the case of the petitioner; so the order of detention was mala fide and discriminatory. (IV) That the case of the petitioner is peculiarly a case in which the prosecution was the normal remedy; and (V) That the cause of detention arose on January 8, 1981 A in the airport and there was no reason for the unusual delay in passing the order of detention on June 6, 198 1 . 6. We now proceed to examine the contentions one by one. (I) Legal representation before the Advisory Board. Learned counsel for the petitioner has placed before us a copy of the letter dated July 31, 1981, addresed to the Secretary, Advisory Board by the detenu's counsel, Mr. G.L. Ajwani. Mr. Ajwani referred to an earlier letter dated July 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signation of the officer on whose satisfaction the order of detention was made and relevant authority under the rules of business, enabling the said officer to pass detention orders on behalf of the Government. (2) The date on which the proposal to detain was received by the detaining authority. (3) Whether facts mentioned in Para 3 of the grounds of detention have been used against the detenu for making the order of detention. (4) The provision of law under which the import of Palladium is prohibited. (5) Whether the detaining authority has accepted or rejected my client's story about the acquisition of colour T.V., Akai cassete Video recorder, Air conditioner etc. If it has been rejected, then the material on the basis of which this decision was taken, and (6) Whether any inquiries, if any, were made from oman consulate or from consul General Mr. Salim kim.' ' Learned counsel submits that the "information' sought under A item (I) of the letter has been furnished and he has no grievance about it. But none of the remaining five 'informations' were furnished. The submission of learned counsel is that the Government is bound to disclose under which provision of law import of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish the detenu with legal information available from legal literature. The liability of the detaining authority is only to comply with the requirement of Sub-Article (5) of Article 22 of the Constitution. In this case, it appears from Schedule I, Appendix 2 to the Imports (Control) order, 1955 (as amended upto March 31, 1980) that the articles mentioned against item 71.09 as "Platinum and other metals of the platinum group, unwrought or semi-manufactured" appearing under Chapter 71 under which are mentioned 'Pearls, precious and semi-precious Stones, precious Metals, Rolled Precious Metals, and Articles thereof; Imitation Jewellery, Coin.' In the counter affidavit the detaining authority has stated that Palladium is a precious metal belonging to the platinum group. The submission of learned counsel is that the detenu even did not know whether Palladium was a precious metal belonging to the Platinum group and the Government's failure to furnish him with that 'information' prevented him from filing a proper representation. We are unable to accept this submission, inasmuch as the pela is not permissible on the ground of public, policy for, any detenu may plead that he does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the statements and documents annexed to the grounds of detention, 11 statements of the detenu including the statement dated 7th April, 1981 were recorded by the Customs Authorities . .. I therefore say that there is no delay in passing the order of detention as alleged by the petitioner . the present order of detention has been issued after completing the investigation." From the foot of the document containing the grounds of detention, it appears that the eleven statements of the detenu and his wife were recorded on various dates between January 9, 1981 C-: and April 7, 1981. 7. The submission of learned counsel is that his grievance is not so much on the time lag or delay between the date of arrest and the date of detention; his real grievance is in not furnishing with the information as to the cause of the delay so as to enable the detenu to file a proper representation before the Advisory Board for its consideration. In our opinion, the submission is untenable. The detaining authority is in no legal liability to tell or satisfy the detenu as the causes of delay; it is under an obligation to satisfy the court as to the causes of delay to show that there was no infractio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences. What is required is that the detaining authority is to satisfy the Court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully, a murderer or a dacoit, as witnesses do not come forward to depose against him out of fear, or in case of international smuggling, it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt. 10. In the instant case it has been submitted by Mr. Jethmalani that on the facts of this case, the prosecution under the ordinary law would have been sufficient; resort to preventive detention on the face of it was manifestly unreasonable. In the counter affidavit it has been stated by the detaining authority that it was aware that the detenu was being prosecuted under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell the same in Bombay market and earn profit. 12. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of foreign exchange regulations and his smuggling activities are likely to have deleterious effect on the national economy. 13. With regard to the confidential guidelines, the averment of the detaining authority in the counter affidavit is that the guidelines given by the Government were secret and confidential instructions which had no binding force; but yet they were taken into consideration while passing the order of detention. The guidelines were necessarily of a confidential nature and were intended to guide the Customs or Intelligence officers as to how to act and what to do in the detection and apprehension of smugglers. They do not have any force of law; and there cannot be any valid complaint of discrimination? if any, in arr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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