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TMI Blog1986 (6) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... muggled gold of foreign origin, entered Railway Bogie No.9337 in which were travelling and attempted to apprehend and arrest them. But, then Selvaraj attempted to escape and run away in which he failed, as the C B officers caught him before he reached one end of the platform of the railway station. In the meanwhile, the train had left Wadi railway station with Ganesh and a few C E Officers that followed him, who caught him at the next railway station, called Nalwar and then brought him to Wadi. At the Wadi railway station the C E officers searched the bodies of the detenus and recovered from them 15 and 14 pellets of gold respectively. On the same day the C and E officers arrested the detenus for the alleged violations of the Gold Control Act of 1968, Customs Act of 1962 and Foreign Exchange Regulation Act of 1973 and commenced their investigation under the said Acts. 4. On 20-8-1985 the Judicial Magistrate First Class, Gulbarga enlarged the detenus on bail on the terms and conditions set out in his orders of that date. 5. After the C E officers completed their investigation under the said Acts, the Collector of Customs and Central Excise, Bangalore (Collector) on 22-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation Act, 1973, except with general or special permission from the Reserve Bank of India. Since neither yourself nor Shri K. Ganesh has produced any such permission or any other documents in support of the licit importation at the time of seizure, the gold under seizure are deemed to be smuggled gold within the meaning of Section 2(e) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, read with Section 2(39) of the Customs Act, 1962". In Paragraph 6 of the petitions, the petitioner has reiterated this contention. 11. In answer to the aforesaid plea of the petitioner Sri Ghoshai in his counter affidavit had stated thus: "6. RE-Para 6: The averments in this para are not tenable. It is well settled that the detaining authority is entitled to invoke the provisions of Section 123 of the Customs Act while passing an order under Section 3(l)(iii) of the Cofeposa Act. Para 14 of the grounds of detention is specific and clear and there is no substance in the allegation of the petitioner that it is vague. As already stated the detaining authority has independently applied its mind and formed the subjective satisfaction, bona fide, on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under the Customs Act, the Customs authorities were free and competent to invoke Section 123 of the Customs Act if the terms and conditions provided in that section are satisfied and its validity had also been upheld by the Supreme Court are not rightly disputed by Sri Kumar. 18. When the Customs authorities are free and competent to draw their presumptions or cast the burden of proof against the person from whom the goods are seized, we cannot place any fetter on those authorities or on Government to rely on the same and act also under the Act. In Baba Saheb's case this very contention has been examined and rejected by this Court. We see no merit in this contention of Sri Kumar and we reject the same. 19. Sri Kumar contends that Government was bound to furnish the documents demanded by the detenus and on its failure to furnish the documents demanded by them for making their effective representations against the order of detention necessarily results in violation of Article 22(5) of the Constitution as ruled by the High Courts of Bombay, Delhi and Madras in Mohd. Hussain v. Secretary, Government of Maharashtra (1982-Cr. L.3. 1848), Vinod Kumar Arora v. The Administrator, Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion and hence the question of supplying copies of these documents to you does not arise. 3. I am also to clarify that the detention order was made against you by the Government of Karnataka as is clear from the detention order No. HD 175 SCF 85 (A), dated 3-3-1986. 4. Therefore, the request for your release from detention under the Cofeposa Act, 1974, it is regretted, cannot be granted and the representation dated 8-5-1986, referred to above, is rejected". Whether this non-supply vitiates the detention orders is the controvertial question that calls for our examination. 22. The term 'grounds' occurring in sub-article (5) of Article 22 of the Constitution and its two requirements has been explained by the Supreme Court in a large number of cases and it is unnecessary to notice all of them. 23. In Khudiram Das' case Bhagwati, J. (as His Lordship then was) speaking for the Bench explained the true meaning of them 'grounds' occurring in Article 22(5) of the Constitution in these words: "....... 'grounds' mean all the basic facts and material which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a detention under the Act. An order of detention is not made in a vacuum, but is made on the 'grounds'. The order and grounds are not two separate and isolated documents. The order is made on the 'grounds'. The representation made by the detenu against the order is really against the 'grounds' appended to the order or later furnished to the detenu. 29. When the detaining authority itself states that it was not relying on certain documents placed by the Collector and was excluding them as a ground for the detention of the person against whom the proposal is made before it, we fail to see any logic or sound reason for the detenu to insist on their supply to him. The supply of documents is not a mere ritual to be performed for its own sake. Without any doubt the supply of documents has a purpose and object to serve. If that is so, then we find it difficult to uphold the contention of the detenus. 30. With this we now turn to the authorities relied on by both sides. 31. In Ummu Saleema's case, Ummu Saleema challenged an order of detention made by Government of India (GOI) against one Jahaubar Moulana under the Act before the Supreme Court under Article 32 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art. 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of the Fundamental Rights guaranteed by Art. 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution". Sri Hegde contends that this enunciation is a complete answer to the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases at some places, the Court had used the term 'documents' referred to must also be supplied. But, a careful reading of those rulings in the context clearly shows that the Court was referring to the documents relied on by the detaining authority and not to the documents 'referred to' but not relied on. We are of the view that these rulings cannot be read in the manner suggested by Sri Raghavan. We are of the view that the ruling of the Supreme court in Ibrahim Ahamad Batti v. State of Gujarat and Others (AIR 1982 Supreme Court 1500) at para 7 militates, against the contention urged by Sri Raghavan and supports the contention urged by the learned Advocate General. 36. We are of the view that the firm legal principle enunciated by the Supreme Court in Ummu Saleema's case is that the detaining authority was not bound to supply documents that were merely 'referred to' but not relied on in the 'grounds' furnished to the detenu. We are also of the view that that principle equally governs cases of demands made by the detenus also. We are of the view that the fact that there was a demand by the detenu to the documents referred to in the grounds makes no difference for the application o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) of the Constitution". What is expressed here is only a re-statement of what is expressed in Mohd. Hussain's case and does not contain any independent or additional reasons for accepting the same. For the very reasons on which we have dissented with the views expressed by the High Court of Bombay in Mohd. Hussain's case with respect we must dissent with the views expressed by their Lordships of the Delhi High Court in Vinod Kumar Arora's case. In Govindaram's case another Division Bench of the Delhi High Court consisting of Prakash Narain, CJ. and another learned Judge speaking through Prakash Narain, CJ. without reference to the earlier ruling in Vinod Kumar Arora's case had also expressed the same view. For the very reasons on which we have dissented with the views expressed in Vinod Kumar Arora's case, we dissent with the views expressed by their Lordships in Govinda Ram's case. 40. In Sakthivel's and Thayalla Vass' cases the High Court of Madras had fallen in line with the views expressed by the High Courts of Bombay and Delhi. For the very reasons on which we have dissented with the views expressed by the High Courts of Bombay and Delhi, with respect, we dissent with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner in challenging the detention of Selvaraj had asserted that Government had not furnished assayers certificate of gold seized from Ganesh and the same vitiates the order of detention made against Selvaraj. Sri Kumar contends that the same vitiates the order of detention made against Selvaraj. 49. We are of the view that this contention has only to be stated to be rejected. We are of the view that the assayer's certificate furnished to Sri Ganesh had no relevance for making the order against Sri Selvaraj and the failure, if any, to supply the same to him does not vitiate the order against Selvaraj. 50. As all the contentions urged for the petitioner fail, these writ petitions are liable to be dismissed. We therefore, dismiss these writ petitions and discharge the rule issued in these cases. But, in the circumstances of the cases, we direct the parties to bear their own costs. 51. Immediately after we completed our dictation dismissing these writ petitions, Sri Raghavan makes an oral application under Article 133 and 134A of the Constitution for a certificate of fitness to appeal from our order on the ground that the questions raised and decided are substantial questions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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