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TMI Blog1978 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked. W.P.dismissed. - Criminal Appeal No. 451 of 1978. - - - Dated:- 17-11-1978 - SEN A.P. (J), SARKARIA RANJIT SINGH AND TULZAPURKAR V.D., JJ. Ram Jethmalani Ashok Desai, S. J. Thakore, K. R. Krishnamurthy, Sri Narain for M/s J. B. Dadachanji and Co. for the Appellants. H. R. Khanna and M. N. Shroff, P. N. Lekhi, Girish Chandra and Miss A. Subhashini for the Respondent. JUDGMENT: The judgment of the Court was delivered by SEN, J.-This appeal by special leave directed against a judgment of the Bombay High Court dated 5th June, 1978, dismissing a petition filed by the appellant under Article 226 of the Constitution, by which he prayed for the issue of a writ of habeas corpus, and the connected petition under Article 32 of the Constitution by his wife for the issuance of a writ of habeas corpus for his release raise a common question and therefore they are disposed of by this common judgment. A vessel known as Jamnaprasad BL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meanwhile addressed a letter dated 21st of February, 1978, to the Government intimating that the case would be taken up on the 13th March, asking that the detenu be produced at the hearing and the Government should also forward the representation, if any, made by the appellant, together with the comments/decision of the Government, if any. On the 13th of March, the appellant was accordingly produced before the Advisory Board. The Government placed before the Board the two representations made by the appellant together with its comments. The appellant was heard in person; the Government s point of view was placed before the Advisory Board by the Deputy Secretary to the Government, Ministry of Finance, Department of Revenue, who was accompanied by the Assistant Collector. Customs, Bulsar. On the 16th of March, 1978, the appellant sent a telegram to the Advisory Board supplementing his oral submissions. The detaining authority rejected the representations made by the appellant on 1 8th of March, 1978. On 10th of April, 1978 the Advisory Board submitted its report giving its opinion that there was sufficient cause for the detention. The Government accordingly confirmed the order B, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. In Abdul Karim ors. v. State of West Bengal([1969] 3 SCR 479) this Court interpreted the language of Article 22(5) and observed: Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Art. 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. It was further observed: In our opinion, the constitutional right to make a representation guaranteed by Art. 22(5) must be taken to in elude by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to enable it to form its opinion and to obtain such opinion. The nature of the dual obligation of the Government and the corresponding dual right in favour of the detenu under Art. 22(5) was reiterated by this Court in Khairul Haque v. The State of West Bengal(W.P. No. 246 of 1969, decided on September 10, 1969) in these words: It is implicit in the language of Art. 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioner s representation until it had received the report of the Advisory Board. As laid down in Sk. Abdul Karim ors. v.. State of West Bengal (supra), the obligation of the appropriate Government under Art. 22(5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board. The fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliest opportunity of making representation against the order, These procedural safeguards are ingrained in our system by judicial interpretation. The power of preventive detention by the Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is necessarily subject to the limitations enjoined on the exercise of such power by Art 22(5) of the Constitution. as constructed by this Court. Thus, this Court in Khudiram Das v. The State of West Bengal ors (AIR 1975 SC 550) observed: The constitutional imperatives enacted in this article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be abserved before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. This has always been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it less euphemistically, the alternative is the renunciation of judicial review itself, and acceptance of the intolerable principle that the Government is the judge of its own powers. So, this Court observed in Prabhu Dayal Deorah v. District Magistrate, Kamrup: [1974] 2 S.C.R. 12 at 22-23 We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading, the personal liberty of a citizen, except in accordance with the procedure established by the constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be overemphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case. Here, similarly the Board by its report dated the 10th April, 1978 independently arrived at its opinion that there was sufficient cause for detention . Learned counsel for the appellant next strenuously contends that there was non-application of mind on the part of the detaining authority. It was submitted that though the order for detention was made with a view to preventing the appellant from smuggling goods, i.e., under cl. (i) of subs. (1) of s. 3 of the Act, his case on the facts revealed in the grounds for detention clearly fell under cl.(ii) of subs.( 1) of s. 3, as he could not, by any stretch of imagination, be treated to be a smuggler but he was only an abettor. May be, he instigated, organised and facilitated the act of smuggling, but it is said, the actual smuggling of the contraband goods, was by others. His act, there fore, constituted abetment of smuggling for which there is a separate clause under s. 3(i)(ii). The order of detention cannot, therefore, be justified under s.3(1) (i). Applying a wrong clause, it is urged, shows non-application of mind. We are afraid, the learned counsel is stretching the argument too fine. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accepted before us that the appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of the appellant. It is clear that Kunji Mohmed, in whose name the vessel Jamnaprasad BLS-61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of ₹ 40,000/-. It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellant s office telephone No. 395279 in Bombay with P. P. Babubhai. Obviously, the over-stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at ₹ 15,44,400/- . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling pro pensities of the appellant. It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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