TMI Blog1997 (8) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... EPOSA Act. Along with the Order of Detention, the Grounds of Detention dated 11th November, 1996 (Annexure 'B' page 20) were also served on the detenu on 19th February, 1997. Few facts necessary to appreciate the contentions raised before us may be briefly stated. 3. On the 3rd of December, 1995, a ship- M.V. Susak-arrived at the Jawaharlal Nehru Port Trust (for short JNPT ) Nhava-Sheva, New Bombay from Dubai. Amongst the cargo, it carried container IPEL-200057-7 in its voyage 79 of 95 under Bill of Lading No. N.H.A./4839 dated 27th December, 1995 consigned from Dubai in the name of M/s. Fatima International, C-32, Abhinandan 306, L.B.S. Marg, Kuria (West), Bombay 400 070. However, when the said container was unloaded at the J.N.P.T., the Customs authorities found that nobody had come to claim it. The container was, therefore, lying in the customs area of the J.N.P.T. without payment of customs duty. It appears that a conspiracy was entered into between as many as 13 persons including the present detenu Nazir Ahmed Abdul Hamid Tungekar, for smuggling 1,12,267 Russian made ball-bearings and 4770 kgs. of heavy metal scrap, totally valued at ₹ 11,61,145 F.O.B. which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shaikh. The conspirators decided to smuggle the consignment of Russian made ball-bearing from Dubai into India through the J.N.P.T. Statements of the detenu and Zulfikar AN Mohammed, were recorded on 30th December, 1995. Statement of Karnaluddin Kikan Shaikh was recorded on 6th January 1996; that of Bhuvan @ Mohan Pandurang Koli on 6th January, 1996; Pappu @ Jethanand Lakhmichand Tolani on 6th January, 1996 and of R. Gnanesekaran, the C.I.S.F. con stable was recorded on 4th March, 1996. They clearly indicate that the detenu had a series of meetings to finalise the strategy and the conspiracy for smuggling the said goods from Dubai into India. 5. In furtherance of the said conspiracy, on the arrival of M.V. Susak from Dubai at the J.N.P.T. on the 3rd December, 1995, the conspirators finalised their further strategy of unloading the said dutiable goods in contravention of the provisions of sections 33 and 34 of the Customs Act, 1962, as also of removing the said dutiable goods from the customs area without permission of the appropriate officer. Both these acts would attract action for confiscation of the improperly imported goods, in accordance with the provisions of section 111 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause, has already been issued and the adjudication proceedings are pending. Similarly, prosecution under section 135 of the Customs Act is also pending in the Court of Judicial Magistrate, First Class at Uran, District Raigad. On these facts, the Order of Detention has been issued detaining the petitioner. It was brought to our notice that some more orders have been issued and are in the process of being served on the concerned detenues. 8. Ms. Mane, the learned Counsel appearing for the detenu has, firstly, con tended that the Order of Detention issued by the 2nd respondent shows clear non-application of mind, as a result of paragraph 29 being added as the concluding para in the said order. Para 29 reads as under : 29. The Detention Order is signed along with the Grounds of Detention. It should be sent to the Sponsoring Authority for translation and service on the proposed detention (detenu), after all the pages are sealed with the seal of Home Department. This contention has been raised in para 4(v) of the petition. What is alleged is that, mentioning that the detention order is signed along with the Grounds of Detention and that it should be sent to the sponsoring aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, felt that such delay, if unduly long, ought to be explained before the Hon'ble High Court by the Sponsoring Authorities themselves. Accordingly the then Detaining Authority had issued instructions to all the concerned Sponsoring Authorities in that regard by Government Letter No. Misc. 2096/C.R.-74/S.P.L.-3(A) dated 25th October, 1996. It was stated in the said letter inter alia that the Order of Detention, Grounds thereof and accompanying documents would be dated on the day the same were signed and that thereafter the same should be sent to the Sponsoring Authority for carrying out translations. It was further stated that the Sponsoring Authority should, thereafter, get the translations made and serve the same upon the detenu after the said translated documents were stamped with the seal of the Home Department, Mantralaya, Mumbai. I say that the purpose of the issuance of the said letter was to avoid the delay caused in getting translations done. I say that the gist of the said instructions were included in the Grounds of Detention in the instant case with a view to enable the detenu to ensure for himself that he was served with all the documents which were duly signed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Director, Narcotics Control Bureau, Mumbai. and; (vi) Additional Commissioner of Police, Narcotics Cell, Mumbai. The circular refers to the fact that some time there was delay in furnishing information relating to the proposal sent by the sponsoring authority. Attention is invited in the circular to the lapses in the past and instruction have been issued to take care that such lapses did not recur. In para 3 of the circular, it is staled that it was necessary to monitor the receipt of information and to decide if the live link had been snapped due to prolonged delays. Then, in para 4 of the said circular, instructions have been given to ensure that after the Order of Detention was signed by the detaining authority, translations should be effected without delay and the order and grounds be served on the detenu. Time taken in this behalf should be explained by the sponsoring authority in its affidavit before the Court. We may reproduce para 4 of the said circular, which is as under : 4. The Principal Secretary (Preventive Detention) and Detaining Authority desires that the time taken for translations of the Detention Order, Grounds of Detention and documents, before se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Detention has been signed on the 11th November, 1996. Having perused the original file ourselves, we have no hesitation in rejecting the first contention of Ms. Mane. 13. The second contention raised by Ms. Mane is that a portion of a document at page 175 of the compilation of documents is somewhat blurred and hence illegible, affecting the detenu's right to make a representation as guaranteed by Article 22(5) of the Constitution of India read with sub-section (3) of section 3 of the COFEPOSA Act. A perusal of page 175 in the compilation of documents furnished to the detenu along with Grounds of Detention shows that it is a remand application under section 104 of the Customs Act, 1962, praying for remand of the accused to judicial custody till 22nd January, 1996, since the investigation was in progress. The application was made on 7th January, 1996 and out of the five accused-respondents in the said application, the petitioner is respondent No. 2. The application gives the brief history of the incident leading to the arrest of the accused on 15th December, 1995, initially for an offence punishable under section 379 of the Indian Penal Code for theft of the smuggled good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a representation as a result of an insignificant portion of a document being slightly blurred. As stated earlier, the copies of all the statements made by the detenu were furnished to him. 15. That apart, as indicated above though what is contended in para 4(vii) of the petition is that several pages were illegible thus affecting the detenu's right under Article 22(5) of the Constitution, what was pressed before us was only partial blurness or illegibility on page 175 of the compilation of documents. Mr. Kamble, in his affidavit, has stated that copies of all the documents to which reference is made in the Grounds of Detention, have been furnished to the detenu and they are legible. Page 175 is a part of the remand application by the Customs authorities in the Court of Judicial Magistrate, First Class, Uran, praying for remand till 22nd January, 1996. Copies of the statements of the detenu recorded on 6th January, 1996, 16th January, 9th April, 11th April, and 26th April, 1996 have been furnished to the detenu and there is no grievance made before us that any of the said statements is either wholly or even partially blurred or illegible. With the assistance of both the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to a statement of the detenu, copy of which, has also been furnished to the detenu. The copy of the said statement of detenue is wholly legible but a portion of the remand application, which makes a reference to the statement of the detenu is partially blurred. We do not think that this would amount to failure to communicate the Grounds of Detention so as to amount to a breach of the guarantee enshrined under Article 22(5) of the Constitution. 17. In dealing with such matters, we cannot be oblivious to what the Hon'ble Supreme Court has said in Pratesh Chandra v. Commr. Secy., Govt. of Kerala, , dealing with failure to furnish translation of some of the documents to the detenu in a case under the COFEPOSA. In para 81 of the judgment at page 701 of the report, the Court observed that though the power of detention must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people; the procedural safeguards are to ensure that; yet these must be looked at from a pragmatic and commonsense point of view. The Court must construe the procedural safeguards in proper light. In para 81, the Court concluded that we must remember that the observanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Home Department on the same day. Additional information regarding the show cause notice etc. was received on 4-9-1996. Thereafter, the detaining authority discussed the case with the Investigating Authority on 16-10-1996 and additional information/documents were called for and the same was received on 18-10-1996, 28-10-1996 and 29-10-1996. The detaining authority, thereafter, considered the proposal and scrutinised the documents and formulated the Grounds of Detention and issued the Order of Detention contemporaneously on 11-11-1996. Thereafter, the Detention Order, Grounds of Detention, along with sets of documents were forwarded to the Assistant Commissioner of Customs (Preventive), COFEPOSA Cell, Mumbai, for translation and execution of the Detention Order. I say that the entire set of the above documents was served upon the detenu on 19-2-1997. In the circumstances I submit that there was no inordinate delay in issuance of the Order of Detention on the part of the detaining authority. I say that upon reckoning with the gravity of the offence committed, the manner of its commission and other attendant circumstances, the live-link between the said incident and the need to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also referred to the various steps and the dates on which the action was taken. In substance both Mr. Kamble and Mr. Patil contend that the time lag has been properly explained. There was no inaction on their part and this is not a case of unexplained delay which is frowned upon by the courts in detention matters. Mr. Bagwe has also made available to us the original file which support the pleadings in the affidavits of Mr. Kamble and Mr. Patil. After the initial investigation into the incident which involved a conspiracy to smuggled goods from Dubai into India, the proposal was forwarded on 26th August, 1996 by the sponsoring authority to the detaining authority. Additional information was called in the month of September 1996 by the detaining authority. A discussion was held with the investigating agency on 16th October 1996 and further information was called which was received in the month of October 1996; the last date of such receipt of information being 19th October 1996. It is, thereafter, that the detaining authority considered the entire material, scrutinised the documents and formulated the Grounds of Detention. The draft was finalised on 8th November, 1996 and the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must be drawn between delay in making of an Order of Detention under a law relating to preventive detention, like the COFEPOSA Act, and the delay in complying with the procedural safeguards under Article 22(5) of the Constitution. It was stated that rule as to unexplained delay in taking action was not inflexible and the Court should not merely on account of delay in making the Order of Detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. 22. In Gora v. State of West Bengal, the incident was in the night between June 25/26, 1973 and the Order of Detention was issued on 29th December 1973. In Ashok Narain v. Union of India, 1982 C.R.I. L.J. 1729 the last incident was of 25th February, 1981 and the Order of Detention was issued on 14th October, 1981. In both these decisions the Supreme Court took the view that the delay in making the Order of Detention did not result in the live link being snapped nor did such lapse of time indicate that the subjective satisfactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gled goods . It is thus contended in para 4(ii) of the petition that there is a disparity between the Order of Detention and the Grounds oi Detention which are at variance with each other and hence the order shows non-application of mind and, as such, is liable to be set aside. 25. In reply to this contention Mr. Bagwe has invited our attention to the affidavits of the detaining authority and the sponsoring authority. Mr. Kamble, in para 6 of his affidavit, has stated as under : 6 With reference to paragraph No. 4(ii) of the petition, it is denied that the conclusion arrived at by the then detaining authority in the Grounds of Detention and in the Order of Detention are at variance as alleged. I say that from the details set out in the Grounds of Detention regarding the prejudicial activities of the detenu, it becomes manifestly clear that the detenu was involved in the conspiracy to remove the container bearing smuggled goods, with the help of his other smuggler associates. In the circumstances the then detaining authority had rightly come to the conclusion that the detenu was involved in smuggling of goods, as contemplated under the provisions of the Customs Act. I submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. The container loaded was clandestinely removed from the J.N.P. docks, without payment of Customs duty, and was attempted to be unloaded in breach of the provisions of section 33 and section 34 of the Customs Act, 1962 and hence in this case the goods are liable to confiscation under section 111(h) of the Customs Act. By virtue of the definition of smuggling in the Customs Act, this aforesaid attempt for illegal unloading is smuggling. The detenu along-with other co-accused had attempted to unload and contents of the container, in breach of the provisions of section 33 and other provisions of the Customs Act, 1962. In other words, the detenu had attempted to smuggle the goods, which is punishable under the Customs Act. As such the detenu is liable to be prosecuted under the Customs Act, 1962. Further more prosecution of the petitioner under the Customs Act, is independent of his detention under the COFEPOSA Act. Therefore, the claim of the petitioner that the Detaining Authority should not have issued the Detention Order is not tenable. 27. In this behalf, our attention was also invited by Mr. Bagwe to the Grounds of Detention which show how the detenu was directly invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1998 (J. K. Ordinance 1 of 1998). (2) When any Order of Detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of CI. (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be alter 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. 29. The word smuggling or smuggled which appears in each of the 5 clause of subsection (1) has been defined in section 2(e) of the COFEPOSA Act, which reads as under : (e) smuggling has the same meaning as in CI. (39) of section 2 of the Customs Act, 1962 (52 of 1962), and all its grammatical variat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen the seal of the container, they were apprehended by the police. Para 11 of the Grounds of Detention shows the detenu was involved in the smuggling of the goods from the J.N.P.T. without payment of Customs duty. Para 15 of the grounds shows that the role played by the detenu in the matter of the movement of the truck trailer and following the same at Kalamboli. What is more important to note in the light of present contention of this distinction between smuggling goods and engaging in transporting or concealing or keeping smuggled goods is the recital in para 20 of the Grounds of Detention. It shows that the detenu was involved earlier also in smuggling of consumer items like tape-recorders. He knew Pappu Tolani who was smuggling goods through J.N.P.T. with the help of C.I.S.F. guards. The detenu was introduced to Pappu Toloni through his old friend Bhuvan @ Mohan Koli. The detenu was aware of the fact that Kamaluddin Shaikh was having consignment of ball-bearings from Dubai which was to be smuggled into India through J.N.P.T. and meetings were held between six persons at the Ashoka Hotel, Uran to finalise the whole smuggling operation. In the conclusion of second para 20 (w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the different stages of the entire conspiracy, activities of smuggling the Russian made ball-bearings from Dubai into the country. The statements of the detenu recorded on several dates unmistakably show that he was involved in the smuggling activities in the past as also in the present operation of smuggling of Russian made ball-bearings. Similarly the statement of C.I.S.F. Constable R. Gnanesekaran recorded on 4th March, 1996 implicate the detenu in the various stages of the smuggling operation. Relying upon such material, the detaining authority has recorded the satisfaction to the effect that the detenu was engaged in smuggling of goods and with a view to preventing him in future from smuggling goods, it was necessary to make the Order of Detention. 32. In view of the above, we find no merit in the contention raised by Ms. Mane that there is variance between the Order of Detention and the Grounds of Detention, as a result of which the Order of Detention is vitiated. We hold that the Grounds of Detention are not merely confined to the detenu engaging in transporting or concealing or keeping smuggled goods, but the Grounds of Detention unmistakably show that the detenu was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to exercise the power of preventive detention, as late as, on 11th November, 1996. Her contention is that there was no likelihood of the detenu indulging in similar acts and nothing had happened between the 8th January 1996 and 11th November, 1996 so as to justify the exercise of power of preventive detention under section 3(1) of the COFEPOSA Act. Contention in this behalf is taken in para 4(iv) of the petition. Mr. Bagwe has invited our attention to the reply which is to be found in the affidavits of Mr. Kamble and Mr. Patil. In para 8 of Mr. Kamble's affidavit, he has referred to the necessity of passing the Order of Detention on a reasonable prognosis of the future behaviour of the detenu based on his past conduct. He has further stated that the detaining authority had arrived at the subjective satisfaction that passing an Order of Detention was absolutely necessary with a view to preventing the detenu from committing similar prejudicial activities in future. The allegation, that there was no material before the detaining authority for corning to the conclusion, drawn by him, has been denied by Mr. Kamble. Mr. Patil, in para 4 of his affidavit, has referred to the state ..... X X X X Extracts X X X X X X X X Extracts X X X X
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