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TMI Blog1981 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... which the detenu Jahaubar Moulana was travelling was intercepted by Customs Officers near Perumber-Kandigal diversion road on Tiruchirappalli-Madras G.S.T. Road. On a search of the car, 768 Wrist watches of foreign origin and 1560 semi-precious stones were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank. The goods which were valued at Rs. 2,95,188 were seized by the Customs Officers alongwith the car. On 7.8.80 the detenu, Jahaubar Moulana, was interrogated and a statement was recorded which incriminated himself and others. He was taken before the Magistrate on 8.8.80 and was remanded to custody. He was granted interim bail on 12.8.80 and the bail was finally confirmed on 16.8.80. On 14.8.80 the detenu claims to have sent a communication addressed to the Assistant Collector of Customs, Cuddalore, in which, according to him, he retracted from the statement made by him on 7.8.80 and claimed that the earlier statement had been obtained from him by torturing him. According to the case of the detenu this communication was sent by him under Certificate of posting. Subsequently, on 31.10.80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in making the order of detention. The reference in the grounds of detention to the petrol put into Jeep No. TMC 1850 was made in the following circumstances. Paragraph 5 of the grounds of detention refers to a statement made by the detenu's brother Shamsuddin on 20.9.80 in which he stated that his Jeep No. TMC 1850 has not been used during the previous years and that it was kept locked up in a garage. Paragraph 5 then recites that the investigation showed that during the period between 1.6.80 and 5.8.80, on as many as 36 occasions petrol had been put into the jeep at various petrol pumps. Here again we are unable to say, on a perusal of the grounds of detention, that the record of investigation relating to the petrol put into the jeep was in any manner relied upon by the detaining authority in making the order of detention. Shri Jethmalani's submission was that the detaining authority was under an obligation to supply along with the grounds, copies of all documents to which reference was made in the grounds irrespective of whether such documents were or were not relied upon in making the order of detention. He submitted that the very fact that the documents were mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution. The next submission of the learned counsel for the detenu was that although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority before making the order of detention. The plain and simple answer of the respondents was that there was no such retraction as claimed by the detenu. According to the detenu as soon as he was released on bail, on 14.8.80, he addressed a letter to the Assistant Collector of Customs, Cuddalore, retracting from his former statement. This communication was sent under Certificate of Posting, a photostat copy of which was produced before us. In support of the claim that he had retracted from his former statement and had communicated the retraction under Certificate of Posting, the detenu invited our attention to the reply sent by him to the show cause notice issued by Collector of Customs under the Customs Act, and to the representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu. Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India Others and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Francis Coralie Mullin v. W.C. Khambra. "The time imperative can never be absolute or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was posted. In the circumstances we are unable to hold that there was non-application of mind by the detaining authority. Shri Jethmalani then submitted that the detaining authority had failed to consider the question whether a prosecution under the ordinary criminal law would not suffice to prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances of the case. Reliance was placed upon the observations made by this Court in Kanchantal Maneklal Chokshi v. The State of Gujurat Ors. In the counter affidavit filed by the detaining authority, Shri B.B. Gujaral, it has been stated: "Having regard to the nature of the activities in which the detenu was engaged and after having applied my mind very carefully to all the facts and circumstances of the case and the material placed before me, I arrived at the subjective satisfaction that it was necessary to detain Shri Jahaubar Moulana for preventing him from engaging in transporting smuggled goods. The adjudication of the case under the Customs Act and prosecution of the detenu are entirely on a different footing. I say that the detention order was passed by me wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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