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TMI Blog2008 (9) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... irming Authority. Therefore, non-placement of this document in issue has not caused any prejudice to the detenu and the said document cannot be said to be a vital and material document, non-placement of which has or could have affected either the report of the Advisory Board or the decision of Confirming Authority in confirming the detention of the detenu. W.P. dismissed. - 468 of 2008 - - - Dated:- 11-9-2008 - Bilal Nazki and A.A. Kumbhakoni, JJ. REPRESENTED BY : Mrs. A.M.Z. Ansari, for the Petitioner. Shri D.S. Mhaispurkar, APP, for the Respondent. [Judgment per : A.A. Kumbhakoni, J.]. This Habeas Corpus petition is filed by Smt. Madhu Kamal Gyanchandani, the wife of detenu : Mr. Kamal Shankarlal Gyanchandani who has been detained in pursuance of detention order dated 28th January, 2008 issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act for short). The order of detention was served on the detenu on the same day i.e. 28th November, 2008 along with grounds of detention and the documents relied by the detaining authority for issuing such a detention order. 2. The case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detenu. Accordingly, a seizure Panchanama was drawn up on 7th July, 2007. In the preliminary statement recorded on 7th July, 2007 u/s 108 of the Customs Act, the detenu admitted the knowledge, possession, concealment, non-declaration, carriage, recovery and seizure of the aforesaid Indian and foreign currency totally valued in Indian rupees at 8,26,631/-. The detenu disclosed further that the said currency was given to him by one Mr. Harchandani Choith Nanikram who used to finance the trips of the detenu abroad. The detenu further admitted to have taken currency given by aforesaid Mr. Harchandani in similar manner by concealing in his baggage and/or his person on his earlier trips abroad also. The detenu was arrested on 7th July, 2007 and was released on bail on 21st July, 2007. The detenu moved an application before the Additional Chief Metropolitan Magistrate on 7th July, 2007 retracting the statements naming the aforesaid Mr. Harchandani as the master mind. The rebuttal application to counter the retraction of the detenu was made by the department on 1st August, 2007. However, a show cause notice dated 22nd November, 2007 was issued to the detenu and the aforesaid Mr. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - The proposal was scrutinized by the Assistant, Under Secretary from the office of detaining authority; 8-12-2007 - The proposal was scrutinized by the Deputy Secretary; 28-12-2007 - The detaining authority approved the proposal and directed to issue detention order as also personally formulated the draft grounds of detention; 7th January to 9th January 2008 - These grounds of detention formulated by the detaining authority were typed and endorsed by the Assistant, Under Secretary and Deputy Secretary 10-1-2008 - The detaining authority approved the order of detention and grounds; 23-1-2008 - The draft detention order, approved grounds, annextures etc. were submitted for signature of the detaining authority; 28-1-2008 - The detaining authority signed the order of detention and issued the same; 28-1-2008 - The detention order was served on the detenu along with grounds of detention etc. - On the same day, report u/s 32 of the said Act was forwarded to the Central Government; 27-2-2008 - The case of detenu was referred to the Advisory Board u/s 8(b) of the said Act; - The Advisory Board interviewed the detenu and after considering the case of the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Customs Act, 1962 vide case F.NoAir/Cus-49/MIII/73/2007 dated 23-5-2007 and fine and penalty was imposed by the Assistant Commissioner of Customs, CSI Airport, Mumbai vide Order dated 23-5-2007. The detenu s further statement was recorded on 14-11-2007 and the show cause notice was issued to the detenu on 22-11-2007. 9. In our view, the sponsoring authority has properly explained the time of two months and odd days that it took in preparation of the proposal for being forwarded to the Screening Committee. The affidavits shows that the sponsoring authority was very much working on the case in the meantime. It appears that the Screening Committee met on 7th November, 2007 when this proposal was placed before it for approval. It is stated in the affidavit of the sponsoring authority that the sponsoring authority received the approval of the Screening Committee on 23rd November, 2007. The Screening Committee has approved the proposal on the very same day and forwarded it to the detaining authority, which the detaining authority has received on 26th November, 2007. 10. In this regard it cannot be overlooked that the detenu was arrested on 7th July, 2007 and was in the custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gendra Murari v. State of U.P. - it is held that : (SCC p. 563, para 6) ... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay.... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not. That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the court should not normally strike down the detention on that around. In Hemlata Kantilal Shah v. State of Maharashtra it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary, 2008, to the show cause notice issued to the detenu by the Department. This reply was sent to the Joint Commissioner of Customs, Mumbai. It is the contention of the petitioner that this reply was not placed before the Advisory Board when the matter of the detenu was referred to the Advisory Board, as required under Section 8(b) of the said Act. It is contended that this document was vital and that it would have influenced the Advisory Board as also the Confirming Authority in taking an action of confirmation of the detention. On this ground, it is submitted that on account of such a non- placement of a vital document, the right of the detenu u/s 8 of the said Act has been infringed and that in any event, it has led to a non-application of mind, both, by the Advisory Board as also by the Confirming Authority in confirming the detention. This ground was not initially raised by the petitioner and, therefore, the petition was sought to amend the present petition, which amendment was permitted by us. 16. In reply the fact that the aforesaid document in issue was not placed before both the authorities is not disputed. On the contrary it is contended on behalf of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, and implicated Harchandani Chaitu Nanikram. In fact, he has nothing to do with the seized currency belongs to accused. So the accused retract his statement and ..............(two words are not legible) the same as not voluntered. Bombay 7-7-07 Sd/- Kamal S. Accused 19. It is pertinent to note that by this retraction statement what the detenu has really retracted from his statement given u/s 108 of the Customs Act, is that the co-accused of the detenu, aforesaid Mr. Harchandani, is not concerned with the offence that the detenu has committed. By this retraction the detenu has retracted the statements initially made by the detenu for roping in Mr. Harchandani. By this retraction the detenu has not at all retracted the statements that were made by the detenu about his own personal involvement in the alleged offence. We are, therefore, of the view that this retraction by the detenu, in any event, was not of any help to the detenu. At the highest, it would help the aforesaid Mr. Harchandani, the co-accused of detenu. In any case, admittedly this retraction was placed before the Advisory Board as also the Confirming Authority. 20. A perusal of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts delivered in the case of Sharifa Abubakar Zariwala (supra) wherein in paragraph 13 it has been held that an enquiry was necessary to be held by the Court as to whether the material which has not been placed for consideration is vital from the point of view of recording of satisfaction. In this judgment, further in paragraph 15, by placing reliance on various Supreme Court decisions, it is concluded as under :- .......It does become clear from all the judgements of Supreme Court relied on by the petitioner that in all the judgements an area has been carved out for an enquiry by the Court in each case to find out as to whether the material that has been withheld from the detaining authority and not considered by the detaining authority, is vital and material for recording the subjective satisfaction...... As set out hereinabove, we have conducted this exercise and have concluded that the document that was not placed before the Advisory Board and the Confirming Authority, was not at all a vital document. 24. In the case of Prakashchandra Mehra (supra), the Supreme Court in this regard in paragraph 77 has observed thus :- ......but in this case the confessional statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confer right to arrest within the limitations prescribed therein. Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3) by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State. 35. ................... 36. Thus courts must first find, the extent of the individual right deciphering with the degree of trespass it makes on the public right, on which there is embargo. Where an individual acts clandestinely for his personal gain against the national interest deleteriously affecting the national economy or security the drastic curtailment of his right should be kept in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away one s liberty it should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes. 37. In this backdrop of the constitutional scheme, the Preamble as also the Objects a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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