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TMI Blog1985 (2) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in Sub-clause (a) of clause (4) of article 22 of the Constitution." 2. Article 22(4) of the Constitution reads as follows:- No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)." 3. It is not the case of the petitioners that the constitutions of the Advisory Board under Section 8 of the COFEPOSA is not in accordance with the above provision in Article 22(4) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) , the word, brackets and figure clause (4) shall be substituted." However, section 1(2) of the Constitution (Forty-Fourth Amendment) Act provided that the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act. 4. As may be seen from the original clause (4) of the Article 22 of the Constitution and the provisions of Section 3 of the Constitution (Forty-Fourth Amendment) Act, the provision requiring the Advisory Board to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court and that the Chairman shall be a serving Judge of the High Court and the other members shall be the serving or retired Judges of any High Court, is absent in the existing clause (4) of Article 22. Under the existing provisions, persons who are qualified to be appointed as Judges of a High Court are eligible to be appointed as members of the Advisory Board. The need for a recommendation of the Chief Justice of the appropriate High Court in the matter of appointment of members of the Advisory Board, is also not present i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present Board in this State under the COFEPOSA Act, but generally as it should be looked at as a binding law and unless the law itself authorises the composition of such Board, the provision would be illegal. Almost identical contentions were raised in the decision reported in A.K. Roy v. Union of India (AIR 1982 S.C. 710). That was a case relating to preventive detention under the National Security Ordinance. At the time when the case came up for consideration before the Supreme Court, almost about 2 1/2 years was over since the passing of the Constitution (Forty-Fourth Amendment) Act. The Constitution (Forty-Fourth Amendment) Act received the assent of the President, as already stated, on the 30th April, 1977. Most of the provisions of the 44th Amendment were brought into force with effect from June 20, 1979 by a notification issued by the Central Government of June 19, 1979. The rest of the provisions of the Amendment were brought into force with effect from August 1, 1979 except Section 3 whereby Article 22 was amended, which has not been brought into force. After upholding the validity of Section 1(2) of the 44th Amendment on the ground that the expression of legislative or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible to the Court to prevent the Government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force. We quite see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing into force the provisions of S. 3 of the 44th Amendment, after the passage of two and half years. But the remedy, according to us, is not the writ of mandamus. If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment, it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon the standard or test prescribed by the Parliament. But, the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether S. 3 of the Amendment Act should be brought into force. This is particularly so when the failure of the Central Government to bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred upon the Central Government the power to bring the provisions of the 44th Amendment Act into force. The Parliament could not have visualised that, without any acceptable reason, the Central Government may fail to implement its constituent. We hope that the Central Government will, without further delay, bring S. 3 of the 44th Amendment Act into force. That Section, be it remembered, affords to the detenu an assurance that his case will be considered fairly and objectively by an impartial tribunal. 5. The learned Councel for the petitioners referring to this portion of the Judgment contended that inspite of the hope expressed by the Supreme Court, the provision had not been brought into force. Even so, nothing can be done by the Courts. It is for the Parliament, if at all, to take note of that fact, and bring into force the provisions. We are, therefore, unable to accept the contention of the learned Counsel that either Section 8 relating to the constitution of the Advisory Board is in any way ultra vires or that we can issue any Writ of mandamus directing the Central Government to bring into force the provision in Section 3 of the 44th Amendment Act. 6. The next argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be arbitrary, unfair or unreasonable. Since we do not think that we called upon to refer to those judgments in detail, we will merely give reference to those authorities. They are:- Haroom Haji v. State of Maharashtra (AIR 1968 S.C. 832); H.H. Advani v. State of Maharashtra (AIR 1971 S.C. 44); Maneka Gandhi v. Union of India (AIR 1978 S.C. 597); Sevantilal v. State of Maharashtra (AIR 1979 S.C. 705); Nandini Satpathy v. P.L. Dani (AIR 1978 S.C. 1025). However, we may note the decision in Ramesh Chandra v. State of W.B. (AIR 1970, S.C. 940) which related to an enquiry under Section 171A of the Sea Customs Act, 1878, corresponding to Section 108 of the Customs Act, 1962. On the scope and limits of interrogation under Section 171A of the Sea Customs Act, the Supreme Court held:- The remaining contention that a person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself, and the evidence if any collected by examining him under Section 171A of the Sea Customs Act is inadmissible has, also no substance. By Article 20(3) of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before Magistrate. In Maqbool Hussain v. State of Bombay 1953 S.C.R 780 = (AIR 1953 S.C. 325), the court held that a person against whom an order for confiscation of goods had been made in proceedings taken by Customs Officer under Section 167 of the Sea Customs Act and was subsequently prosecuted before a Magistrate for offence under the Foreign Exchange Regulation Act, 1947, could not plead the protection of Article 20(2), since he was not prosecuted before the Customs authorities, and the order for confiscation was not a punishment inflicted by a Court or judicial tribunal within the meaning of Article 20(2) of the Constitution and the prosecution was not barred." The Supreme Court further held that a Customs Officer while exercising the powers under the Customs Act, 1962 also is not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained for prolonged periods exceeding more than 24 hours and were kept in closed doors as captive prisoners surrounded by officials and their statements were obtained and, therefore, those statements could not be relied on. We are not satisfied that there is any factual basis for such statement. We find that each of the detenus were examined on number of days and not on any one particular day alone. It is not even the case of the petitioners that the detenus were detained by the customs officials during night or any interrogation was done during night except in the case of detenus concerned in W.P. 12377 of 1984. We have carefully looked into the records relating to the detenu in W.P. 12377 of 1984 who complained that on the 26th night, he was kept in custody of the customs officials. We are satisfied that he was examined on the 25th July, 1984 during day time and he went home agreeing to appear on the 26th and he did appear on the 26th. There is also a statement to the effect that he went home and returned on the next day and gave evidence for a few minutes on the 27th and only thereafter he was arrested and produced for remand before a Magistrate. In the circumstances, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch matters, we also do not think that any big enquiry is needed or called for, since it is in the same office the enquiry is done. The Assistant Director is the immediate superior in that office. In the circumstances, therefore, there is no substance in the contention of the learned Councel that there is any violation of the principles of natural justice in denying the allegation of force or coercion during interrogation or taking of statement. 10. It is then contended by the learned Councel that the order of detention relied as part of the material the identification by various witnesses or persons who were examined by the customs authorities during investigation. According to the learned Councel, the procedure adopted in identifying the detenus in these cases were all contrary to law, unreasonable and unfair and that, therefore, that would vitiate the order of detention. The detenus were produced before the various persons whose statements were recorded and those persons were asked to state whether they know the detenus and when they mentioned about their names, they were asked as to how they came to know of them. At that stage of enquiry, the customs officials were naturally i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writings marked as Ql, Q2, Q3, Q5 to Qll and Q15 to Q31. The writings marked as S. 1 to S. 92 as also the writings, marked as Ql, Q2, Q3, Q5 to Qll and Q15 to Q31 were all furnished marking them with reference to S series or Q series, to each one of the detenus. Therefore, it could not be stated that they do not know what S series or Q series relate to. But what is contended by the learned Councel is that they should have been furnishing with zerox copies or photostat copies of those documents so that they could compare whether the writings are the same. We are unable to agree with this contention. We must point out that S series are documents which were in the possession of the various detenus and recovered during investigation. Those are bills, cheques, cheque-leaves and other documents. Q series are various writings of the detenus made to the dictation of the customs officials. When the typed copies of those were given to them, they know that they are the statements written and signed by the detenus. If for any reason they wanted to compare, they should have called for the originals or the photostat copies of those documents in order to make any representation. They have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Supreme Court that interrogation is to be stopped, the said Srinivasan, was interrogated extensively on 10th, llth, 13th, 14th, 17th, 18th, 21st, 23rd, 24th, 25th and 27th August and 18th, 21st and 24th September 1984 and that statement was relied on and that vitiated the order. The correctness of this contention was disputed by the learned Councel for the respondents. He pointed out that the interrogation in August 1984 and September 1984, related to a different seizure and not with reference to the seizure that was the subject matter of the S.L.P. Petition. As we have already noted the Writ petition specifically stated that the mandamus prayed for was with reference to the proceedings arising out of the seizure of some or all of the 44 cases effected on 13-5-1983. The enquiry held in August and September 1984 related to the seizure effected in April 1984. It is true that in the course of such statement, the said Srinivasan has referred to some of his earlier activities of which one of them related to the 44 cases which were the subject matter of the earlier writ petition. But that was only a passing reference about his earlier involvement and not in any way relevant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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