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TMI Blog1987 (9) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... heir office at Indira nagar along with some witnesses. In the office of the DRI at Indira nagar, the detenu was searched and 8 gold biscuits with foreign markings kept in the pant pockets were recovered. The detenu did not have any evidence to show his licit possession of the said gold biscuits. A certified goldsmith testified, after applying the touch-stone method, that the gold biscuits were of foreign origin, having purity of 24 cts. These are also reflected in the mahazar drawn, duly attested by the witnesses and the said goldsmith. Thereafter the detenu was questioned under S. 108 of the Customs Act and he made his statement. 3. The detenu has stated inter alia that his elder brother Suryaprakash and himself started a shop in the Temple Street and in the said shop both of them were doing business. He stated that they did not have any gold dealer's licence. The ostensible business was in old silver and silver ornaments. The detenu admitted again, having possessed of the gold biscuits seized from him. According to him his brother gave him the said 8 gold biscuits with foreign markings and asked him to sell the same among the local gold dealers. After enquiring the prices in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the complainant (DRI) and that all his statements were not given by him voluntarily and the same were obtained by duress and coercion. This bail application is not included in the documents annexed to the grounds of detention, but a reference to this bail application is found in the order-sheet of the Special Court for Economic Offences. The order-sheet states that the accused complains ill-treatment by the DRI stating that the Officers tied his leg and assaulted him and on account of this he sustained bleeding injuries sustained by him, he submitted that he bled from the nose only and stated that he has not sustained any bleeding injury on the body. Sri J. Jeshtmal files memo of appearance for the accused and also the bail application . The order-sheet further states that in view of the allegations made, the complainant agreed for the examination of the detenu by a Medical Officer. Accordingly the accused (detenu) was remanded to judicial custody with a direction to get the accused examined by a Medical Officer. To this, counsel for the accused, had also no objection. The medical report of the same date, viz. 18-11-1986, does not disclose anything. It simply says that the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally detained and he was tortured and assaulted by the Officers causing severe injuries on his person. The notice further states that the signatures of the detenu were obtained on a number of documents without furnishing copies thereof. The notice also refers to the production of the detenu before the Court and the complaint made by him about torture etc. It further states that the detenu did not make any confessional statement before the Officers of DRI and that any statement recorded implicating the detenu in the commission of an offence will not be binding on him. Thereafter a demand was made to furnish the copies of the mahazar and the statements immediately. 11. The Asstt. Director, DRI, sent a reply to this letter of the counsel on 25-11-1986 denying the allegations made against the Officers of the Department. It was also pointed out that the detenu himself made a statement before the Special Court and he had stated that he was not making any written complaint against the Officers. On 25-11-1986 the detenu sent a telegram to the Dy. Director, DRI, stating that on the said day he was harassed and tortured by the DRI officials. He says in this, that office contents not explai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed thereon will have to be characterised as the result of relying on irrelevant material. (vi) The opinion of the goldsmith was irrelevant as to the purity and origin of the gold, since it is not based on any scientific data . 13. In the course of his arguments, the learned counsel very fairly did not develop the last two grounds and therefore it is unnecessary to deal with the same. Re. Ground No. 1 :- 14. Admittedly the bail application dated 18-11-1986 was not placed before the detaining authority. This contention is found at paras 11 and 20 of the writ petition. In the statement of objection of the Special Secretary to the Government, Home Department, the same has been traversed in paras 17 to 19. The counter-affidavit of the State Government above points out that the detaining authority was aware of the factum of detenu having filed the bail application. The factum of filing bail application was referred in the order-sheet of the Court, which has been relied upon by the detaining authority. The order-sheet clearly brings out the complaint of the detenu about the ill-treatment as well as the medical report of the Doctor obtained by the Court. It is further stated that the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail was refused and he was remanded to judicial custody. After 2 days he was in custody, at that time of interrogation by the customs Officers, the detenu refused to sign the documents and made an endorsement that his earlier statements were not correct. Thus the reaction from the confessional statement was for the first time made on the said date while in judicial custody. There is nothing to show that there was any other retraction of confessional statements. In the circumstances, the Supreme Court held that : (i) the denial of permission for the presence of the Advocate was based on misconception of the legal position and the said fact, that such a request was made and refused, was not intimated to the detaining authority. Therefore, the detaining authority had no occasion to consider this aspect of the case. (ii) The detaining authority based its decision on the confessional statement but the retraction of the said statement was not known to the detaining authority because it was also not placed before it. It is in this background the Supreme Court observed at page 451 (of AIR) : (at p. 207 of Cri LJ) thus : Questions whether the confessional statements recorded on Dec 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basic facts and materials which have been taken into account by the detaining authority and therefore all of them should be furnished to the detenu. Thereafter the scope of the Court's power to interfere with the detention order was elaborately discussed and we have already summarised the points in our recent decision in Shivaji v. State of Karnataka ILR 1987 Kar 2011 : 1987 Cri LJ 1754. The question before us is, whether any of the principles stated therein can be invoked by the petitioner to challenge the present detention order and we find the answer to be in the negative. 20. In Suresh Mahato case 1975CriLJ607 it was held that the pendency of criminal cases against the detenu was a very material circumstance to be considered by the detaining authority. The said decision also states that if the criminal cases were dropped and the petitioner was discharged before making the order of detention, it was not a material fact which ought to have been placed before the District Magistrate. It is not understandable as to how this decision helps any of the contentions of the petitioner in this case. 21. The next decision is of Bablu Das, 1975CriLJ1327 . It was help that while detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining authority, which according to the Supreme Court, was a very relevant material before passing the order of detention. When the Supreme Court itself had permitted him free movement, normally the detaining authority would have thought it fit not to apply the law of preventive detention once again, was the ratio of the decision of the Supreme Court. Therefore, failure to consider this vital and relevant material vitiated the order of detention. 23A. There is no doubt that the detaining authority has to consider the material or vital facts before making an order of detention. The documents by themselves are not the vital facts. They evidence the existence of such materials or vital facts. Therefore, failure to consider a particular document cannot be equated to the failure to consider a vital fact, if such a fact was considered by other means. This aspect is clear from the decision in Bhawarlal Ganeshmalji v. State of Tamil Nadu, 1979CriLJ462 . In the said case, in the course of investigation, apart from the detenu, four other persons made statements incriminating the detenu. However, the said four persons retracted from their statements, thus in effect the statements implicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant material regarding the retraction by the petitioner was very much before the detaining authority, which has been referred to by it in its grounds of detention and considered. Hence there is no merit in this contention. The proposition that failure to place before the detaining authority relevant and material facts which may influence the mind of such authority in one way or the other will vitiate the order of detention, is unexceptionable. But a perusal of the grounds of detention shows that the detaining authority took into consideration all the circumstances including the retraction of the voluntary statement before forming its subjective satisfaction regarding the necessity to detain the petitioner under the COFEPOSA Act . 26. An examination of the facts of the present case clearly shows that the detaining authority had before it the fact that the detenu had resiled from his confessional statement. In fact, the documents placed before the detaining authority brings out the basis of retraction more emphatically than the one stated in the bail application. A copy of the bail application placed before us shows the averment therein, in this regard, is too general. The ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been 'and' and not a disjunctive 'or'. The decision, is thus, based on the facts of the said case, as is clearly brought out by the aforesaid relevant sentence in the order of detention. 29. The position is almost the same in Akshoy Konai case (SC). Here also two alternative positive acts were alternatively attributed to the detenu. 30. In Krishnaveni's case (Kant) the order of detention was under the then Maintenance of Internal Security Act, 1971. Here again the order stated that it was necessary to prevent the detenu from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him smuggling goods or abetting other persons to smuggle goods or dealing in smuggled goods . Thus the order of detention did not particularise the activity against which the preventive action was taken. It is in this circumstance, the Court struck down the order of detention. Whether all the acts were taken cumulatively or each of them alone was to be the basis of the order, cannot be discovered in such a case. Each activity by itself is a distinct ground of detention. 31. Meeting this contention of the petitioner, the learned Advocate Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out of such sale or exchange. Section 3(1)(iv) is so worded as to make the ambit of the dealing narrower than the ordinary meaning of the word 'dealing . 32. In fact in a decision of this Court rendered on 19-12-1984 in Anand Ganpati Yadav alias Jadhav v. State of Karnataka (W.P. No. 131/1984) the order of detention made under S. 3(1)(iv), used the conjunctive word 'and'. This rendered the order of detention invalid. 33. The contention of the learned counsel for the petitioner, according to us, is opposed to the English grammar. When words of exclusion are used from the main clause of a sentence it is natural to use the disjunctive word 'or'. All the various subjects referred independently after the word 'or' get excluded from the main clause. The attack of vagueness and uncertainty, has thus to be repelled. Accordingly this contention of the learned counsel also is rejected. 34. Before going to the third point, since we are dealing with the language of S. 3(1)(iv) the 4th point may be dealt with immediately hereafter. 35. The contention of the learned counsel for the petitioner is that the concept of dealing involves some transaction such as a retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , amongst others, the ambit of the works 'in any way concerned in any manner dealing with any goods with respect to the importation of which any prohibition or restriction is for the time being in force as aforesaid' as referred to in S. 167(8) of the Sea Customs Act, 1878 (old Act). The Supreme Court held that the works 'in any way concerned in any manner dealing with prohibited goods', are very wide import and that it is neither desirable nor necessary to define all manner of connections with the prohibited goods which might come within the meaning of these words. It was observed that it would depend on the facts in each case whether it can be said that any person is concerned in dealing with such goods . 37. One of the meanings given to the word 'dealing' in Webster's Collegiate Dictionary is to engage in bargaining to sell or distribute something as a business . 38. The word used by the parliament will have to be understood in the context of the legislation, the purpose for which the law is enacted and the mischief sought to be eradicated by the legislation. The preamble to the Act highlights the grate mischief that is sought to be remedied by the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed the detaining authority of this fact of the detenu being already in jail. 42. In Binod Singh case referred above, the proceedings arose out of the detention made under the provisions of the National Security Act. In view of the criminality of the detenu disclosed from several cases, an order of detention was made. The detenu was originally absconding. He had surrendered for being kept in Jail in another criminal case arising out of a 'murder' charge against him. While he was in jail, the impugned order of detention was served. There was a statement in the order stating that the person was already in jail and was likely to be enlarged on bail and therefore the detention order was served on him. The Supreme Court help than there was no application of mind by the detaining authority on the enlarged on bail. It was observed as follows (at p. 2093) (of AIR) : (at p. 1962 Cri LJ) : From the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and espe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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