TMI Blog1985 (4) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied with as far as practicable. There are no merits in the fancied grievances of the detenus. Appeal dismissed. - Writ petition (Criminal) Nos. 1721 , 1722 and 1724 of 1984 - - - Dated:- 12-4-1985 - MUKHARJI, SABYASACHI, FAZALALI, SYED MURTAZA AND VARADARAJAN, A., JJ. P. Govindan Nair , G.L. Sanghi , Farook M. Razaak and H.K. Puri for the Petitioner T.S. Krishnamurthy Iyer and E.M.S. Anam, N.C. Talukdar and , R.N. Poddar for the Respondent SABYASACHI MUKHARJI , J. One allegedly Venilal D. Mehta is the father. Miss Pragna Mehta is the daughter and Bharat Mehta is the son. They all have been detained under the Pro visions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 (hereinafter referred to as the 'Act') , by virtue of an order dated 19th June , 1984. Their detentions are challenged in three writ petitions under Article 32 of the Constitution, filed by Prakash Chandra Mehta , another son of Venilal D. Mehta and brother of Miss Pragna Mehta and Bharat Mehta. The facts of these cases basically more or less are the same with certain minor variations which would be noticed. On the 2nd May , 1984 , the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as his sister. Upon such identification , Miss Pragna Mehta wrote down a third statement-one on behalf of her father and one on her own behalf. It is alleged that such statements were dictated by the officers of the Central Excise. Bharat Mehta also wrote down a statement on his behalf which is similarly alleged to have been written as dictated by the officers. Then all the three aforesaid persons Venilal D. Mehta , Miss Pragna Mehta and Bharat Mehta were produced before the Acting Chief Judicial Magistrate on 5th May , 1984 at 8. 30 P.M. at his residence at Vanala and were reminded to jail custody. So far as Bharat Mehta is concerned , on 2nd May , 1984 , he was in Calcutta and he was informed by his brother from Bombay that his father Venilal Mehta and his sister Pragna Mehta had been arrested and upon hearing that he left for Bombay and arrived in Bombay by the evening flight. On the following day i. e. On 3rd May. 1984 , Bharat Mehta left on the morning flight for Cochin for arranging bail for his father and sister. At the Cochin Airport , he was apprehended by the officers of the Central Excise who desired to interrogate him and was thereupon brought to the office of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kottayam for treatment. On 20th June 1984 , the father and the son while in custody and undergoing treatment in Medical College Hospital were served with the detention orders under the said Act. Thereafter they were transferred to the Central Prison , Trivandrum. On 25th June , 1984 , the grounds were served on all three of them. It is alleged that the said grounds were served nearly at midnight and said grounds served were written in English while some of the accompanying documents about six in number were In Malayalam. On 25th July , 1984 Miss Pragna Mehta made an application praying , inter alia that the order of detention by revoked and she may be set at liberty. On 4th August , 1984 , she wrote a letter to the Chairman , Advisory Board seeking the assistance of a legal practitioner or a friend during the Advisory Board proceedings. It is alleged that on or about 6th August , 1984 , she was informed at 9.00 A.M. for the first time that she had to appear before the Advisory Board at 10.00 A.M. It is her case that she appeared without being given an opportunity of being assisted by any friend. She further alleges that she being the only lady detenu in solitary confinemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to read , write either English or Hindi or Malayalam and the grounds of detention may be given to him duly translated in Gujrati. On 5th August , 1984 , he was informed by a letter dated 4th August , 1984 that his representation could only be examined after the same was translated into English. On 5th August , 1984 he made a representation to the detaining authority praying that his detention order may be revoked. He was informed on 6th August , 1984 at 9. 15 A. M. that he would have to appear before the Advisory Board at 10.00 A.M. He appeared before the Advisory Board and the Advisory Board had confirmed his order of detention on 13th August , 1984. He received a letter on 25th August , 1984 that his request for supply of grounds of detention and connected documents was not considered necessary by the Government. The representation dated 9th August , 1984 was rejected and the same was communicated to him by a letter dated 28th August , 1984 , and he was informed on 31st August , 1984 that the Advisory Board was of the opinion that there was sufficient ground for detention. He was also informed by a letter dated 10th August , 1984 that his representation dated 5th August , 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured suitcase marked Aristocrat and vanity bag as hers. The two suitcases claimed to be of the father were examined by the Superintendent. There were no gold or incriminating documents in the suitcases. The Superintendent asked the daughter to open her suitcase and accordingly she opened the suitcase by taking a key from her vanity bag. When she opened , the suitcase was found to contain one inflated air pillow and certain personal clothings- Beneath the air pillow and the personal clothings , there was some thing warped in a Turkish towel. When the Turkish towel was removed three paper packets with abnormal weight were found. The Superintendent enquired Or the daughter about the contents of the three packets and she had remained silent. Immediately the father disclosed that the packets contained gold biscuits of foreign origin. When the Superintendent asked about the quantity , the father informed that the three packets totally contained 60 gold biscuits , with 25 gold biscuits each in two bigger packets and 10 gold biscuits in the small packet. All the three packets were covered with paper bearing printed English letters. The three packets were opened and examined and found to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azar was also given to B.V. Shah alias Venilal Mehta and his acknowledgement was obtained on the original. Ground I (b) stated about the search on intelligence report of Hotel Airlines at M.G. Road , Ernakulam. It is not necessary to set out in detail the documents and the currency notes seized , particulars whereof were stated in the said show cause. In Ground I (c) , the search and seizure of Swastic Society , Bombay have been set out. Certain telephone numbers are noted. The documents seized from this place included telephone bills installed at the residence of Venilal Mehta and two other telephone numbers noted in the paper. Other details of the ground and facts of the search need not be set out in detail. In Ground I (d) , it was stated that the Superintendent of Customs searched premises of R.D. Mehta Co. and certain particulars of telephone numbers and other documents recovered were stated therein. In Ground I (e) , it was stated that the Superintendent searched the silver refinery controlled by Shri Partap Sait. Certain diaries and documents are seized. The telephone of the refinery is 37144. In the documents and diaries seized from the silver refinery , phone nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harat Mehta , Venilal Mehta and Rashmi Mehta. They used to come to the refinery. They used to meet the younger brother of Pratap Sait , Shri Suresh. They were doing some secret business. Suresh used to entrust him with certain bundles of notes to be handed over to Venilal Mehta or his sons. This he used to do. The documents seized from the refinery contained the accounts of agriculture and grapes were written by Pratap Sait. Some times Venilal Mehta , Bharat Mehta and Rashmi Mehta used to stay at Hotel Blue Diamond and he had 1 met them while they were there. The telephone number of the refinery , he stated , was 37144. His statement was read over to him and admitted to be correct. This statement was not retracted. In Ground V (3) , it was stated that one Shri Suresh Mahadeva Salunkhe S/o Mahadev Dari Salunkhe was examined under section 108 of the Customs Act. He has also given certain facts about the business of Pratap Sait and others. He said that Pratap was looking after Blue Diamond Hotel. He also knew Venilal Mehta , Bharat Mehta and Rashmi Mehta. He further stated that Venilal Mehta came to the refinery some time ago and thereafter as per the telephonic direction of his brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is annexed to the affidavit in opposition of the respondents is a mercy petition which is annexure R-1 dated 30th June , 1984 addressed to the Secretary and Commissioner , Home Vigilance , Home Department , Government of Kerala , Trivandrum through the Superintendent , Central Jail , Trivandrum. In that he stated as follows:- I , Venilal M Mehta , beg to request you to give kindly and sympathetic attention to the following few lines and render mercy to me. I am an old man of 60 years. I had my peaceful life as a business man and commanded respect in the business circle and friends. I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold. My financial and social status was unblemished during all these years of my life. I would not say it was a greed it was only the destiny that played this part. Looking to my old-age and unstinted career up till now , I beg you to show mercy on me and t o revoke the order of detention under COFEPOSA. I assure you that never in my life to come , I will indulge in any such activity there are detrimental to the nation as a whole and me in particular. Thanking you in anticipation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984 , there was search of the house of Pratap Sait at Ernakulam. On the same day , Shalimar Jewellery Fixed Deposit Door No. 37/8 , Broadway , Cochin was searched , The statements of B.V. Shah or Venilal Mehta , Pragna Mehta and Bharat Mehta under section 108 even if these are ignored , there were searches and statement by one Shri S. Kumar and there was also search on 14th May , 1984 of the residential quarters of Venilal Mehta at Bombay where telephone having No 625768 was installed. This telephone number tallied with certain papers of Pratap Sait and other houses mentioned here in before. There was search of the premises of Venilal Mehta in the name of R.D. Mehta Co. Bombay. There also the telephone numbers 339774 and 338286 were found installed. These tallied with the telephone numbers found in the papers in other houses The documents recovered from R.D. Mehta included telephone bills of phone No. 625768 installed at the house of Venilal Mehta which showed that from the said phone trunk calls were booked to Cochin telephone Nos. 37144 and 33221 Ernakulam , 37144 is the telephone number of Silver Refinery and 33221 is the telephone number of Blue Diamond Hotel controlled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts , detailed show cause notice was issued. It is true that in the said show cause , the statements of Venilal Mehta on 2nd May , 1984 , 3rd May , 1984 and 4th May , 1984 were also taken into account but Annexure 'C' to letter to the Collector retracting the statement was not taken into account. It has therefore to be examined that in view of the fact that the whole statement had been retracted , these statements should have been considered along with the retraction. The fact of not doing so will require examination. It may , however , be mentioned that in the counter-affidavit , it has been stated that the basis of the detention order was not only the statement by the detenus but also other materials which were supplied to the detenus. In support of these applications , the following main grounds were urged namely: (1) The grounds were not communicated to the detenus in a language understood by them. (2) The retraction of the confessions or statements made under section 108 of the Customs Act had not been taken into consideration. (3) There was delay in serving the grounds upon the detenus. (4) The detenus were not allowed to be represented properly befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood. According to the petitioner , Venilal Mehta understood nothing except Gujrati. He did not understand English or Hindi or Malayalam. The grounds of detention were initially supplied to Venilal Mehta in English on 25th June , 1984 i.e. within five days of his arrest or detention. But certain accompanying documents in Malayalam language were supplied to him namely , item Nos. 1 , 6 , 8 , 27 , 38 and 47. Sub-section (3) of section 3 of the s lid Act provides as follows:- For the purposes of clause (5) of Article 22 of the Constitution , the communication to a person detained in 1 pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention , but ordinarily not later than five days , and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days , from the date of detention. In the instant case it was submitted that assuming 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 circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest , his room had been searched , gold biscuits had been recovered from him. Court is not the place where one can sell all tales. The detaining authority came to the conclusion that he knew both Hindi and English. It has been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu Venilal Mehta was merely feigning ignorance of English. We may here notice the first decision upon which reliance was placed a decision in the case of Harikisan v. The State of Maharashtra Others ([1982] 2 Supp. S.C.R. 918) This Court reiterated that the provisions of Article 22 (5) of the Constitution required that the grounds should be communicated to the detenu as soon as may be and that he should be afforded the earliest opportunity of making a representation against the order. This 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 satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds were given on 25th June , 1984 following the search and seizure of gold biscuits from his room in the hotel in his presence and in the background of the mercy petition as we have indicated and he was in constant touch with his daughter and sons and there is no evidence that these people did not know Hindi or English. Indeed they knew English as well as Hindi. It is difficult to accept the position that in the peculiar facts of this case the grounds were not communicated in the sense the grounds of detention were not conveyed to the detenu Venilal. Whether grounds were communicated or not depends upon the facts and circumstances of each case. As early as in 1968 , in the case of Hadibandhu Dase v. District Magistrate , Cuttack Anr.([1969] 1 S.C.R. 227) this Court was concerned with a case where on December 15 , 1967 , the District Magistrate , Cuttack had served an order made in exercise of power 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the detenus had retracted the alleged statements by letters dated 5th May and 6th May , 1984 addressed to the Collector , Central Excise and Customs. While the statements made in the confession or statements before the Collector under section 108 had been noted in the grounds of detention , the retraction had not been noted. It was submitted that the said retraction was bound to influence the mind of the detaining authority one way or the other whether to make or not to make the detention order and therefore not taking this fact into consideration on or about 19th/20th June , 1984 , there was no application of mind. It is true that retraction was not taken into consideration as it is evident from the order of detention , thought the retraction as noted here in before , was considered before confirming the order of detention subsequently after the opinion of the Advisory Board. Section 5A 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in tune with the contemporary notions of the realities of the society and the purpose of the Act in question in the light of concepts of liberty and fundamental freedoms guaranteed by Article 19 (1) , 21 and 22 of the Constitution. Reviewing several decisions in the case of Hasmukh S/o Bhagwanti M. Patel v. The State of Gujarat Others. , ([1981] 1 S.C.R. 353) this Court held that a democratic Constitution is not to be interpreted merely from a lexicographer's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people. The concept of 'grounds' used in the context of detention in Article 22(5) of the Constitution and in sub-section (3) of section 3 of COFFPOSA , therefore , has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions. While the expression 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This contention , therefore , cannot be accepted. If that is the position then in view of section 5A of the Act there was sufficient material to sustain this ground of detention. In the case of State of Gujarat v. Chamanlal Manjibhai Soni, ([l981] 2 S.C.R. 500) this Court maintained the order of the High Court quashing the detention. This Court observed that detention under section 3 of the Act was only for the purpose of preventing smuggling and all the grounds , whether there are one or more , would be relatable Only to various activities of smuggling and no other separate ground which could deal with matters other than smuggling could be conceived of because the Act of smuggling covered several activities each forming a separate ground of detention and the Act dealt with no other act except smuggling. Whenever allegations of the custody of the Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The detenu was detained on 20th June , 1984. As required under section 8(3) of the Act , the case of the detenu was referred to the Advisory Board in Government letter dated 18th July. 1984. The representations submitted by the detenu were also forwarded to the Advisory Board for its consideration. The services of the two persons mentioned here in before were utilised by the Board in understanding the statement of the detenu and deciphreing the representation in Gujarati submitted by the detenu , Venilal Mehta to the State Government which was also forwarded to the Board. Therefore , it has cannot be said that detenus have not been given proper facility to be represented before the Advisory Board. The contention that the fact that there was retraction of the confession not having been taken into consideration had vitiated orders has been dealt with. The 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 gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m pragmatic commonsense point of view. We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self preservation and protection of the country and national security may claim in certain circumstances higher priority. As has bean said by Thomas Jefferson To lose our country by a scrupulous adherence to written law , would be to lose itself , with life , liberty , property and all those who are enjoying them with us , thus absurdly sacrificing the end to the means (Thomas Jefferson , Writings (Washington ed) , V. 542-545 and The Constitution Between friends by Loutis Fisher 47). By the aforesaid approach both justice and power can by brought together and whatever is just may be powerful and whatever may by powerful may be just In the background of the facts and circumstances of this case the procedural safeguards have been complied with as far as practicable. There are no merits in the fancied grievances of the detenus. In that view of the matter, these petitions fail and are accordingly dismissed. Petitions dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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