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TMI Blog1990 (9) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1990, a statement which was not contested on behalf of the petitioners. In fact the submission was not pursued after this fact was disclosed. We also see no merit in it. Lastly, it was said that the authority had failed to take notice of the retraction of the statement recorded under section 108 of the Customs Act, 1962. In fact there is a specific reference to the retraction letter dated 12th October, 1989 and the subsequent letter of 19th October, 1989, wherein the detenus stated that they had signed the letter of 12th October, 1989 without knowing the contents thereof and had in fact not disowned their earlier statement of 5th October, 1989. It is clear from the above that this challenge is also without substance. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... precious stones and also gave the description of Kasim and Rahim. On 12th October, 1989 he wrote a letter retracting his statement made on 5th October, 1989. However, in his further statement recorded on 19th October, 1989 he admitted that his signature was obtained on the letter of 12th October, 1989 without disclosing the contents thereof to him and that his earlier statement of 5th October, 1989 was both voluntary and correct. Inciden- tally the statement of retraction was rejected by the Deputy Director of Revenue Intelligence on 20th October, 1989. The other two persons whose statements were also record- ed on 5th October, 1989 disclosed that they were both work- ing at a Tea shop in Madras and knew Mohideen and Rahim who too were working with them. Rahim had suggested that they would be paid ₹ 2,000 each if they were willing to smuggle foreign currency to Dubai by swallowing capsules containing the same. On their agreeing they too were trained and were then taken to Bombay where they were lodged in Vimi Lodge at Bhindi Bazar. On 4th October, 1989 they were given an tick- ets for travel to Dubai and 100 capsules each containing foreign currency. They swallowed the capsu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso served on the three the same day. Thereafter the Additional Secretary to the Government of India in the Ministry of Finance, Department of Revenue made a declara- tion concerning the three detenus dated 20th December 1989, under sub-section (1) of section 9 of the Act after record- ing a satisfaction that they were likely to smuggle goods out of and through Bombay Airport. an area highly vulnerable to smuggling within the meaning of Explanation 1 to that section. This declaration was served on the detenus within the time allowed by law. Thereupon. the wives of all the three detenus filed separate habeas corpus writ petitions under Article 226 of the Constitution in the High Court of Bombay on 19th January. 1990. These writ petitions were numbered 66, 67 and 68 of 1990. Four contentions were raised before the High Court, namely, (1) since the detenus were in custody their detention was unwarranted; (2) the detaining authority had betrayed nonapplication of mind by describing the offence with which the detenus were charged as 'bail- able'; (3) the representation of the detenus dated 18th December, 1989 had not been disposed of promptly and there was inordinate delay; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not appeal to us because consult- ing the authority which initiated the proposal can never be said to be an unwarranted exercise. After the COFEPOSA Unit received the comments of the sponsoring authority it dealt with the representations and rejected them on 16th January, 1990. The comments were despatched on 9th January, 1990 and were received by the COFEPOSA Unit on 11th January, 1990. The file was promptly submitted to the Finance Minister on the 12th; 13th and 14th being non-working days, he took the decision to reject the representations on 16th January, 1990. The file was received back in the COFEPOSA Unit on 17th January, 1990 and the Memo of rejection was despatched by the post on 18th January, 1990. It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed. It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with-the representations of the detenus. Our attention was drawn to the case law in this behalf but we do not consider it necessary to refer to the same as the question of delay has to be answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enus are charged with a bailable offence. After setting out the fact that two of the detenus had made an application for bail in the Bombay Court and their co-accused Kasim had made a similar application in the Madras Court, the authori- ty proceeds to state as under: "Though you are in judicial custody but can be released on bail any time as the offence with which you have been charged is bailable in which case you may indulge in similar prejudicial activities. It is necessary to bear in mind the context in which the expression bailable' is used. In the counter filed by the Joint Secretary who passed the detention orders and prepared the grounds for detention it is stated that his past experi- ence in such eases was that normally and almost as a matter of rule courts grant bail after the investigation is com- pleted. It was in this background, says the officer, that he used the expression 'bailable'. We may reproduce his exact words from the counter: "It is also submitted that the word bailable which has not been used in the legal sense, it was intended to convey that normally in such cases one gets bail and in that context, the word 'bailable' wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention is, therefore, clearly devoid of merit. Counsel for the detenus, however, vehemently argued that since the detenus were in custody, there was no compelling necessity to pass the detention orders for the obvious reason that while in custody they were not likely to indulge in any prejudicial activity such as smuggling. In support of this contention reliance was placed on a host of decisions 01' this Court beginning with the case of Vijay Narain Singh v. State of Bihar, [1984] 3 SCC 14 and ending with the case of Dharmendra Suganchand Chelawat v. Union of India, [1990] 1 SCC 746. It is necessary to bear in mind the fact that the grounds of detention clearly reveal that the detaining authority was aware of the fact that the detenus were appre- hended while they were about to board the flights to Hongkong and Dubai on 5th October, 1989. He was also aware that the detenu M.M. Shahul Hameed had secreted dia- monds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes. He was also aware of the fact that all the three detenus were produced before the Additional Chief Metropolitan Magistrate, Espaland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore they indulged in the smuggling activity, this was not a solitary effort, they had in fact prepared themselves for a long term programme. The decisions of this Court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at*liberty. We will now consider the case law in brief. In Vijay Narain Singh (supra) this Court stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice; So also in Ramesh Yadav v. District Magis- trate ET, [1985] 4 SCC 232 this Court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail. In such cases the proper course would be to oppose the bail application and if gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the detenu is in custody unless the detaining authority has reason to believe that the subsisting custody of the detenu may soon terminate by his being released on bail and having regard to his recent antecedents he is likely to indulge in similar prejudicial activity unless he is pre- vented from doing so by an appropriate order of preventive detention. In Shashi Aggarwal v. State of Uttar Pradesh, [1988] SCC 436 it was emphasized that the possibility of the court granting bail is not sufficient nor is a bald state- ment that the detenu would repeat his criminal activities enough to pass an order of detention unless there is credi- ble information and cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicial- ly. The same view was reiterated in Anand Prakash v. State of Uttar Pradesh, [1990] 1 SCC 291 and Dharmendra's case (supra). In Sanjay Kurnar Aggarwal v. Union of India, [1990] 3 SCC 309 the detenu who was in jail was served with a detention order as it was apprehended that he would indulge in prejudicial activities on being released on bail. The contention that the bail application could be opposed, if granted, the same could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation by the memorandum of 18th January. 1989 the detenus were informed that the sponsoring authority was requested to supply the copies of search authorisations to the detenus. The petitioners complained that despite this communication the sponsoring authority did not supply copies of the search authorisations whereupon another letter dated 6th February, 1990 was written to the detaining authority asking for the said documents. By the memorandum of 14th February, 1990, the detenus were informed that the Deputy Director of Revenue Intelligence. Bombay, was requested to supply the documents asked for by the deronus. In response to the same the detenus were supplied copies of the search warrants but not copies of the declara- tions made to the customs officers at the airport. It is further complained that this delay had resulted in depriving the detenus of their valuable right to make an effective representation against the impugned detention orders. The High Court while dealing with this contention came to the conclusion that the declarations made by the detenus at the airport were neither relied on nor referred to in the grounds of detention. As regards the search authorisat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of detention to the detenu and documents not relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded. Where documents of the latter category are supplied after the meeting of the Advisory Board is over it was held that that would seriously impair the detenu's right to make an effective and purposeful representation which would vitiate the detention. Counsel for the petitioners, therefore, submitted that in the present case also since the search authorisations were supplied after the meeting of the Advi- sory Board, the detention orders stood vitiated. But in order to succeed it must be shown that the search authorisa- tions had a bearing on the detention orders. If, merely an incidental reference is made to some part' of the investigation concerning a coaccused in the grounds of detention which has no rele- vance to the case set up against the detenu it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation. It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penditure and avoidable duplication. We do not think that we would be justified in quashing the declaration made under section 9(1) of the Act on such a hyper-technical ground. We, therefore, do not see any merit in this contention. There are a few other minor grounds on which the deten- tion orders are challenged. These may stated to be rejected. Firstly, it was contended that under section 3(1) of the Act a detention order can be passed on one or more of the five grounds set out in clauses (i) to (v) thereof. Since the impugned orders make no mention of the clause number on which they are rounded they are bad in law. The detention orders clearly state that the power is being exercised with a view to preventing the smuggling of goods referrable to clause (i) of the subsection. Merely because the number of that clause is not mentioned, it can make no difference whatsoever. So also we see no merit in the contention that the value of goods seized varies in the grounds of detention from that mentioned in the panchnama or appraisal report. How that has prejudiced the detenus is difficult to compre- hend in the absence of any material on record. The submis- sion that the declaration und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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