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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 ..... 5,188 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, Shri B.B. Gujral, Additional Secretary to the Govt. of India, Ministry of Finance made an order of preventive detention against the detenu Jahaubar Moulana under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The order of detention and the grounds of detention were served on Jahaubar Moulana on 2.2.81. According to the respondent they could not be served earlier as Jahaubar Moulana was not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation 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 the grounds established that the documents were relied upon in making the order of detention. We are unable to agree with the submission of Shri Jethmalani. True, it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt. Shalini Soni v. Union of India & Ors. But these observations must be read in the context in which they were made. In Shali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 made by him to the detaining authority, in both of which he made a reference to the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority alongwith his representation a photostat copy of the Certificate of Posting but carefully refrained from sending a copy of the letter of retraction itself. This is indeed extraordinary. If the detenu was serious in his request that his retraction shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obsessive". The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced 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 with due care and after careful consideration of all the materials placed before me". The deponent may not have stated in express words that when he made the order of detention he also considered the question whether a prosecution under the ordinary criminal law would not meet the situation and would not be sufficient to prevent Jahaubar Moulana from engaging himself in the objectionable activities. But a reading of the entire counter affidavit makes it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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