9911796707
TMI Blog1992 (4) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... nge worth ₹ 5 crores with the help of some fake import documents presented to Union Bank of India. It is alleged that the business which was used as a cover was import of chemicals and besides some genuine transactions with the help of one Ram living in Hongkong a conspiracy was hatched and Ram was helping to prepare the said documents and send them to India. Four persons namely, Tushar Shah, who is said to be the King-pin ; Kirit L. Shah; Pankaj Valia and Ramesh Khushalani came to be detained by separate orders passed by Shri Mahendra Prasad, Joint Secretary to the Government of India on 5th of September, 1991 under section 3(1) of the COFEPOSA Act, 1974. All the four detenues had challenged the detention orders and out of them, Writ Petition No. 1375/1991 challenging the detention order of Kirti Shah came to be allowed by Division Bench of this Court and he was directed to be released. Whereas, Writ Petition No. 1408/1991 challenging the detention of Uday T. Valia came to be dismissed and his detention was confirmed by this Court on 4th March, 1992. The detentions of rest two detenues are the subject matters of the present writ petitions before us. 3. Shri Madhu Patel, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Criminal Writ Petition No. 1412/1991, submitted only two points. Firstly he adopted the same arguments which Shri Patel has advanced about the non-supply of four bills of entry along with the customs endorsement thereon and the only other point urged by him was about the non-application of mind. He submitted that paragraph 13 of the grounds of detention supplied to Rajesh R. Khushlani contains a statement that You and also S/Shri Ramesh Bhushlani, Kirit L. Shah, Tushar Shah retracted respective statements . This indicates that the sentence is taken out from the grounds which were framed and supplied to Pankaj Valia, a co-detenu and indicates that the Detaining Authority has not taken care to consider the grounds against this particular detenu afresh and has barely copied them down from the grounds framed and supplied to the other detenu and thereby this is the case of non-application of mind. These submissions were replied by Shri R.M. Agarwal for the Union of India and Shri S.C. Page appearing for the State and they supported the impugned order of detention Mrs. R.P. Desai appearing for State in W.P. No. 1412 of 1991 also made submissions in defence of the detention orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many other grounds on which the order of detention could be sustained in the present case. Referring to the judgment of another Division Bench in a co-detenu's case i.e. Criminal Writ Petition No. 1375/1991, the Division Bench noticed that the Division Bench hearing Writ Petition No. 1375/1991 was told that Harish Shah was a co-detenu which was contrary to the facts. The release of Kirit Shah was ordered by the Division Bench solely on the basis that the retraction of co-detenu was not considered by the Detaining Authority along with the statement earlier recorded under section 40 of the Foreign Exchange Regulation Act, 1973. The Division Bench hearing Writ Petition No. 1408/1991 relied on the decision of the Supreme Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, 1986CriLJ786 . In this case, retraction of the detenu was not considered by the Detaining Authority. Noticing that apart from the confessional statement there were also other grounds on which the order of detention could be sustained, Supreme Court was pleased to hold that the order of detention would not be vitiated merely because the retraction was not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, if it is established that document was relied and is not supplied or copy is illegible. If the document is a basic fact and it is not supplied then Shri Patel's submission would be valid one. But if the document is only an evidence of basic fact and the contents of the document are communicated in another accompanying document and it is legible, the submission would loss importance. Shri patel has also relied on Bhupindersingh v. Union of India, : (1987)2SCC234 in support of his submission about consequence of illegible documents. In the instant case, document at page No. 127 is a list about the bills in respect of Royal Plastic Corporation. It appears to be a part of the communication from the Union Bank of India to the Royal Plastic Corporation, Pydhoni, Bombay- 400 003 though other entries in the document are legible, entries in respect of the part of this compilation is not legible and hence not translated. Documents at page Nos. 130 and 141 are both memos of costs by the Union Bank of India, Khand Bazar Branch and are addressed to M/s. Shah Enterprises and M/s. Aum Enterprises respectively. This document accompanies a covering memo by the Bank of India, 11, Canton Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned shipping agents by Union of India, Bombay, it has been found that some of the bills of lading relating to import transaction of the firm floated by him were not genuine. Similarly, a number of bills of entry obtained from the Bank were also referred to Customs Authorities at Bombay and Madras for verification. However, it has been reported by the Bombay customs that the following bills of entry do not tally with their record. After this statement, a list of 11 bills of entry is given. It is true that neither in the English version nor in the Hindi translation supplied, bills of entry at serial Nos. 8, 9, 10, and 11 contained the endorsement of the Bombay Customs, that these bill do not tally with their record though certain endorsement is there in the original. Presently, the detenu was not supplied with the material about the opinion expressed by the Bombay Customs that these documents do not tally with the entries in their record. It is the submission of Shri. Madhu Patel that transactions which are evidenced by entries 1 to 11 in this paragraph do constitute a single transaction and since the material in respect of all or part of it is not supplied, the whole ground mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd i.e. the indulging in activities prejudicial to the conservation or augmentation of foreign exchange, is also without any foundation. This argument was considered by the Supreme Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni, 1981CriLJ1042 . The learned Judges rejected the contention that the basic ground would be smuggling and the instances given would be subsidiary grounds. It observed thus: What the Act provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. 13. Shri Patel further submitted that the constitutional requirement of Article 22(5) cannot be given a goby by resorting to section 5-A. According to him, the words invalid for any other reason whatsoever appearing in clause (v) of sub-section (a) of section 5-A cannot be read to mean anything more what is illustrated in clauses (i), (ii), (iii) and (iv) by application of rule of ejusdem generis. Even this argument has also been repelled by Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah, Tushar Shah retracted respective statements. Since the grounds are addressed to Ramesh Khushlani, He is mentioned by pronoun You and further mention of Ramesh Khushlani indicates that the whole sentence is taken out from the grounds supplied to another detenu i.e. Pankaj Valia. Though the sentence appears to be incorrect, we do not think that much capital can be made out of it. In the very paragraph, the first sentence addresses detenu Ramesh Khushlani as You and mentions rest of the three collaborators as Tushar M. Shah, Kirit L. Shah and Pankaj Valia. At all other places detenu has been referred as pronoun You and there is no mistake about it. Merely because one of the sentence is incorrectly drafted, no inference of non-application of mind can be there and, therefore, this contention raised by Shri Gupte will have to be rejected. 16. This takes us to the last point urged by Shri Patel about the delay in executing the order of detention Shri Patel relied on Shafiq Ahmad v. District Magistrate, Meerut, , T.A. Abdul Rahman v. State of Kerala, 1990CriLJ578 and K.P.M. Basheer v. State of Karnataka, 1991(1) Crimes 996. In all these cases, delay was unexplained and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
