1. By this petition under Art. 226 of the Constitution, the petitioner-detenu who is hereinafter referred to as 'the detenu', seeks to challenge the legality and correctness of the detention order issued by the 1st Respondent under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Hereinafter referred to as 'the Act'. The grounds of detention annexed to this petition at Ex.C. were formulated pari passu along with the impugned order of detention. The impugned order and the grounds of detention were served upon the detenu on May 23, 1983 and since then the detenu is detained in jail.
2. The grounds of detention disclose that on February 9, 1983, officers of Customs Department received information that silver was being attempted to be exported to Gulf countries in the consignments declared to contain cotton powerloom Chaddars and the said informant pointed out the two consignments at Air Cargo Complex, Sahar, Bombay. The two consignments were of 58 cartons and 34 cartons and were booked by Gulf Air to Sharjah and Dubai respectively. Watch was kept over those consignments to prevent their shipment by Gulf Air flight in the morning of February 10, 1983, nevertheless the airline did not uplift the consignments. It is then disclosed in the grounds of detention that the said two consignments were examined on February 10, 1983 and it was found that out of the 92 Cartons which were declared to contain Indian powerloom chaddars only 10 cartons contained 49 chaddars and remaining 82 cartons contained 976 silver slabs weighing 776 kilograms approximately valued at Rs. 25,60,800/-. The contraband goods were thereafter seized in the reasonable belief that they are liable to be confiscated under Customs Act, 1962. The Customs Department then carried out the enquiry with officers of Asiatic Travel and Cargo Service, Chakala, Bombay, through whom the said two consignments were booked. Ezekial Usiel Borgaonkar, who was found near the said office was picked up and upon interrogation it was revealed that he along with one Fernandez was responsible for carting the said two consignments to Cargo Complex for getting the shipping bills processed in Export Department and even for forging the reports and out of charge endorsements and signature thereon. Upon further inquiries it was revealed that the detenu was behind the shipment of the contraband goods. In spite of the detenu's search, he was not traceable for some time. Enquiries with Borgaonkar revealed that one Mr. Fernandez was also connected in smuggling of these contraband goods and, therefore, he was also picked up for interrogation. During the investigation it was revealed that Borgaonkar was working for the detenu and on February 7, 1983 the detenu asked Borgaonkar to arrange for shipment of the said two consignments giving all details of shipment i.e. name of exporter, descriptions of goods, number of cartons and marks thereon, name of the consignee etc. and necessary blank forms, invoices and declarations duly signed. Borgaonkar and Fernandez thereafter got the forms typed. Fernandez arranged for getting the shipping bills passed by Customs. By that time one Yusuf, the brother of the detenu, brought one tempo with 34 cartons and one More assistant of Fernandez took the tempo to cargo complex - One Ebrahim, the associate of the detenu also appeared on the scene. The grounds of detention further disclose that the said Yusuf again brought another tempo with 58 cartons and Fernandez took the goods to the office of Asiatic at Sahar. Fernandez thereafter completed the formalities and after forging examination report and out of charge endorsement he handed over the shipping bills and air way bills to Air India Clerk for shipment of the said two consignments. Gulf Air did not lift the consignments as silver was found at Dubai in an earlier consignment of some exporter. Meanwhile the Department got information and detected the present case. The enquiries in this behalf further revealed that as the consignments were not uplifted by Airlines on February 8, 1983, when they were likely to be uplifted the said Borgaonkar and Fernandez had at the instance of Iqbal Rupani approached one Mr. D'Souza of M/s. Asiatic to persuade for early shipment and that in the process they had come to know about the detection of silver at Dubai in their earlier consignment and that they are still keen in shipment of the said two consignments and that they even intended to bribe the said Mr. D'Souza of M/s. Asiatic for effecting shipment. It is then disclosed in the grounds of detention that upon making further enquiries it was revealed that on around forty-three occasions in the recent past Borgaonkar and Fernandez were instrumental in exporting illegally several consignments of smuggled goods belonging to the detenu by adopting similar modus viz. exporting smuggled goods in the garb of free items and forging of Customs examination Reports and out of charge endorsements. During the enquiries it was also revealed that behind all these activities the detenu was working actively. The detenu had arranged with one Ramesh who used to deliver silver at the room at Mazgaon, Bombay, standing in the name of detenu's younger brother. The detenu's brothers used to pack silver in cartons. They also used to pack cotton chaddars in some cartons. The detenu used to pay for chaddars etc. and also used to pay to Yusufali and Razakali for doing the job of packing etc. Yusufali used to put markings on the cartons and Borgaonkar used to number the cartons under instructions from the detenu. Yusufali used to inform Borgaonkar about numbers of cartons containing only chaddars and cartons containing silver. Yusufali used to hand over the cartons containing silver and Chaddars, loaded in tempo to Borgaonkar and in the recent past around 35 to 40 such consignments were handed over by Yusufali with the help of Razakali to Borgaonkar under detenu's instructions. The last of such consignments was of 92 cartons out of which 10 cartons contained Chaddars and 82 contained silver i.e. the present consignments under seizure.
3. The seizure panchanama was carried out on February 10, 1983 and during the said panchanama 776 Kgs. approximately; of silver slabs valued at Rs. 25,60,800/- were recovered. The panchanama also mentions that only those cartons which were strapped with red plastic straps were found to 'contain cotton Chaddars as declared in the said shipping bills. The detenu's house was searched on February 22, 1983 and during the said search incriminating documents were recovered such as one slip whereon an address was found written which tallied with the address of the consignee on certain shipping bills. The statement of the detenu came to be recorded. He, however, denied to have any connection with these smuggling activities. Various statements of Borgaonkar, Yusufali, Razakali Fernandez came to be recorded from time to time which show the involvement of the detenu in these smuggling activities. After completing the necessary investigation the sponsoring authority i.e. the Customs Department placed the documents as per the list 'Ex. D. before the detaining authority. After considering all these documents, the detaining authority reached a subjective satisfaction that with a view to preventing the detenu from smuggling goods it is necessary to detain him under the Act. The Order of detention thus came to be passed on May 12, 1983. It is this order which is the subject matter of this petition.
4. Shri B. K. Chougule, the Special Secretary to the Government of Maharashtra has filed his affidavit on behalf of the State of Maharashtra, the detaining authority; Shri D. R. Chitre, Desk Officer, Home Department who authenticated the order also filed his own affidavit in reply. Shri S. B. Chadha, Superintendent of Customs, also filed his own affidavit clarifying certain averments in the petition to support the order of detention.
5. Shri Merchant, the learned counsel appearing in support of this petition challenged the impugned order of detention on several grounds. In the first place Shri Merchant relying upon the averments contained in para 7 of the petition urged that the detaining authority has expressly referred to and relied upon the statements of Borgaonkar, Yusufali Hassanali and Razakali Hassanali. But, however, the detaining authority has not at all considered the retractions of Borgaonkar dt. March 9, 1983 as also the retraction of Razakali Hassanali. The retractions of co-accused are relevant and vital factors for arriving at the requisite subjective satisfaction for the purpose of detention. The grounds of detention do not indicate and reflect that the detaining authority has ever considered or taken into account the retractions of these co-accused. Since there is no reference to these retractions in the grounds of detention it must be inferred that the detaining authority has not at all considered the retractions while reaching the subjective satisfaction and passing the order of detention. The subjective satisfaction is therefore vitiated and the order of detention is rendered illegal.
6. In reply to this averment the detaining authority in its return in para 6 has stated as follows :-
'With reference to Para 7 of the petition, I say the retraction letters from E. U. Borgaonkar, Yusufali Hassanali and Razakali Hassanali were considered by me while considering the case of the detenu. I say after considering the entire material very carefully I was subjectively satisfied that Sarvashri Borgaonkar, Yusufali Hassanali and Razakali Hassanali had made true and voluntary statements and their retractions were afterthought. I say it is not necessary to mention the retractions in the grounds of detention. I say the list of documents placed before me will clearly show that the said documents were placed before me. I say while considering the case of the detenu, I have considered all the documents placed before me very carefully before ordering to issue detention order. In view of what is stated by me above the contentions raised in this para are false. I deny all the contentions and allegations.'
7. It is well settled that in the grounds of detention it is not necessary for the detaining authority to mention expressly that he has considered the retractions placed before it. In addition to this we also do not see any merit in this submission because the detaining authority in his affidavit in reply has categorically stated that he has considered the documents as per the list Ex. D. that were placed before him and he has considered all these documents for his subjective satisfaction and thereafter passed the impugned order of detention. We see no reason to discard the sworn statement of the detaining authority. In connection with this ground Shri Merchant urged that if the return filed on behalf of the detaining authority is accepted which states that the retraction of Yusufali Hassanali was also placed before him and the same was considered but, however, the copy of the said retraction was not furnished to the detenu and, therefore, the impugned order of detention must be held bad for non supply of vital and material document. Normally we would have accepted this contention raised on behalf of the detenu but Shri Kotwal, the learned public prosecutor has rightly stated that in the return filed by the detaining authority there is a mis-statement in connection with the retraction of Yusufali Hassanali. In fact Yusufali Hassanali has never given any retracted statement and, therefore, it was not in existence on the day when the impugned order of detention was made. The question of placing the said retraction before the detaining authority was therefore wholly irrelevant. Shri Kotwal then produced before us the draft affidavit corrected by the detaining authority for our perusal. In this draft affidavit, where the reference to the retractions of Borgaonkar, Yusufali Hassanali and Razakali Hassanali is made, the detaining authority has bracketed the name to Yusufali Hassanali. According to learned counsel this was bracketed because the detaining authority was aware that there was no retraction of Yusufali Hassanali and this name was to be deleted from the draft. But, however, the typist who prepared the fair draft unwarily typed out that bracketed portion with the result that this mis-statement crept into the return filed on record. This mistake also went unnoticed bona fide on the part of the detaining authority at the time of declaration of the return. He, therefore, submitted that this is a bona fide mistake on the part of the typist and no prejudice whatsoever has been caused to the detenu. If in fact such a retraction of Yusufali Hasanali was not in existence on the date of the order of detention then the question of placing and considering the same would not arise. We have ourselves seen the draft and we find that the detaining authority has put a bracket to Yusufali's retracted statement and, therefore, obviously there is a mistake and this does not, in our opinion, vitiate the impugned order. Shri Merchant taking advantage of this bona fide mistake urged that the manner in which the detaining authority has sworn the affidavit shows that it has been done in a very cavalier manner and there was no application of mind on the part of the detaining authority and therefore the impugned order of detention as well as the continued detention of the detenu must be held illegal. We do not see any substance in this contention. The first contention of Shri Merchant must fail and the same is rejected.
8. It is then urged by Shri Merchant that paragraph V of the grounds of detention states that the Government shall place the requisite material before the Advisory Board to enable the Board to make report to the Government whether there is sufficient cause for the detention of the petitioner. According to Shri Merchant the said grounds of detention do not at all state as to what is this 'requisite material' which will be placed before the Advisory Board, and since the detenu was not aware of this requisite material his fundamental right to make representation to the Advisory Board is violated. Elaborating this argument he urged that the Advisory Board is a statutory body with consultative jurisdiction and the Government is required to place all necessary material under S. 8(1) of the Act to enable the Board to give its opinion. Since the detenu has fundamental right to make a representation to the Advisory Board and the Government is bound to disclose and mention in the grounds of detention the material that shall be placed before the Advisory Board when the Government makes a reference so as to enable the detenu to know in advance as to what is the actual material forwarded to the Advisory Board to enable him to make proper representations. The use of expression 'requisite material' in ground No. V of the grounds of detention leaves the matter in the realm of doubt and uncertainty and the Government is thereby given the right and power of pick and choose and to decide as to what material should be placed before the Advisory Board and at the same time the detenu is completely left in the dark as to what material is actually forwarded and placed before the Advisory Board. In this State of affairs it is urged by Shri Merchant that the detenu's fundamental right to make representations under Art. 22(5) of the Constitution is violated, rendering the detention illegal.
9. In this behalf we may usefully refer to the relevant provisions contained in S. 8 of the Act, viz. :-
'8. For the purposes of sub-clause (a) of Clause (4), and sub-clause (c) of Clause (7), of Art. 22 of the Constitution, -
(a) xx xx
(b) xx xx
(c) the Advisory Board to which a reference is made under Clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to he heard in person, after hearing him in person, prepare its report specifying in a separate para thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;
(d) xx xx
(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.'
10. If we analyse the scheme of S. 8 and thereby having regard to the provisions mentioned hereinabove it is quite clear that the proceedings before the Advisory Board shall be confidential and if the Legislature in their wisdom thought keeping these proceedings before the Advisory Board as confidential, it is futile exercise on the part of the detenu to contend that he is entitled to know what material has been placed before the Advisory Board.
In connection with this contention we may refer to the averments contained in the affidavit of Shri D. R. Chitre, in para 4 which are as under :-
'With reference to para 10 of the petition, I say that the Government of Maharashtra placed before the Advisory Board the order of detention, the grounds of detention and the copies of all the statements and documents placed before Shri B. K. Chougule. I say all this material has been referred to in para 5 of the grounds of detention as the requisite material .....'
The petitioner's fundamental right to make any representation under Art. 22(5) of the Constitution in our opinion, is not violated and on this ground the order of detention does not become illegal. We therefore do not see any force in the second submission made on behalf of the detenu by Shri Merchant.
11. It is then urged by Shri merchant that the grounds of detention are formulated by Shri B. K. Chougule and, therefore, he alone can explain what is meant by requisite material and Shri Chitre who has only authenticated the impugned order of detention has no knowledge of the requisite material This submission again has no force because Shri Chitre who has been associated with Shri B. K. Chougule, the detaining authority, has specifically averred in para 4 of the affidavit in reply that the Government of Maharashtra has placed before the Advisory Board the material mentioned in the said para. There is therefore, no substance in this submission also.
12. Shri Merchant relying upon the judgment of the Supreme Court in Wasi Uddin Ahmad v. District Magistrate, Aligarh : 1981CriLJ1825 and especially on paragraph 18, urged that the principle laid down by the Supreme Court in connection with Art. 22(5) of the Constitution must be extended by casting a duty upon the Government and detaining authority to apprise the detenu as to what material will be placed before the Advisory Board. In other words according to Shri Merchant the Courts have recognised a right of the detenu under Art. 22(5) of the Constitution to know on what material the impugned order of detention came to be passed. This same principle be extended further to recognise the fundamental right of the detenu to know as to what material will be placed before the Advisory Board when he will be interviewed. In this behalf we may usefully refer to para 18 of the judgment in Wasi Uddin Ahmed's case which reads as under :-
'The words 'and shall afford' in Art. 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must 'apprise' a detenu of his constitutional right under Art. 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Art. 22(5) would be, in many cases, of little avail if the detenu is not 'informed' of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under Art. 22(5) of the Constitution and under S. 8 of the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board.'
The facts of Wasi Uddin Ahmed's case are clearly distinguishable and having regard to the wording used in Art. 22(5) of the Constitution of India it is not possible to extend the ratio of this judgment further logically and to hold that the detenu is entitled to be apprised as to what material will be placed before the Advisory Board. As stated earlier under Clause (e) of the S. 8 of the Act, the Legislature mindfully kept the proceedings before the Advisory Board as confidential and if the principle as urged by Shri Merchant in Wasi Uddin Ahmed's case is further extended making imperative on the part of the Government and the detaining authority to apprise the detenu as to what material will be placed before the Advisory Board will in effect render Clause (e) of S. 8 of the Act nugatory. Such an intention cannot be attributed to the Legislature while drafting the provisions of Clause (e) of S. 8 of the Act. This submission, therefore, again has no substance and has got to be rejected.
13. It is next urged by Shri Merchant that the recitals contained in para I of the grounds of detention are vague and do not convey the necessary and minimum particulars to enable the detenu to make effective representations against the said recitals in this grounds of detention. He submitted that at least the detaining authority ought to have made a reference therein to the name of the informant so that the detenu would have been in a position to make an effective representation against the same. This contention has been taken up by the detenu in para 8 of this petition. In reply to this contention the detaining authority in para 7 of his return has stated as follows :-
'7. With reference to para 8 of the petition I say as a narration of facts I have mentioned the information in para 1 of the grounds of detention. I say the said narration of facts has been mentioned by me from the proposal sent by the Customs Authorities which is also called the history sheet. I say I have not relied on the said information but as a narration of facts, I have referred the said information pursuant to which the Customs Authorities examined the consignment. I say, the detenu is not entitled to have a copy of the proposal or the history sheet and also the secret information. I deny what is stated by me in para 1 of the grounds of detention is vague and is devoid of all particulars. I deny that the detenu is disabled from making an effective representation against his detention or his fundamental rights under Art. 22(5) of the Constitution are violated. I deny all other contentions raised in this para.'
Shri Kotwal relying upon this return filed by the detaining authority urged that the secret information which led to the discovery and seizure of contraband goods was required to be kept secret in order to implement the provisions of the Act, effectively. If this secret information is passed on to the detenu it will lead to disastrous situation and there shall be apprehension in the minds off the informants to come forward and give information in regard to the smuggling activities. In order to serve this purpose the name of the informant is not disclosed. Moreover disclosure of such information to the detenu would be against the public interest and, therefore, the detaining authority was fully justified in taking recourse to the provisions of Art. 22(6) of the Constitution of India. He further submitted that reference to such information is by way of preface and a gist of history sheet which led to the seizure of the contraband goods and this material is irrelevant and not at all relied upon by the detaining authority for its subjective satisfaction. We find much force in the submission of Shri Kotwal. The offences of this nature are seriously affecting the national economy adversely and, therefore, we are of the opinion that the detenu is not entitled to know the particulars about this secret information and, therefore, non-supply of this information does not any way vitiate the order much less affect the fundamental right of the detenu under Art. 22(5) of the Constitution.
14. The last submission urged before us by Shri Merchant in support of this petition is in connection with the infraction of Art. 22(5) of the Constitution. According to Shri Merchant the detenu was not supplied the vital and material documents along with the grounds of detention which has infringed his fundamental right to make effective representations guaranteed under Art. 22(5) of the Constitution. In this behalf Shri Merchant divided his argument in four compartments and we may deal with each of the said contentions.
15. Firstly, Shri Merchant urged that the detaining authority has relied upon and considered around 43 occasions or instances of smuggling activities of the detenu. The said reference we find in sub-para (8) of Para I of the grounds of detention. Relying upon these recitals in the grounds of detention it is urged by Shri Merchant that the detaining authority has furnished only 26 copies of the shipping bills to the detenu but the transactions alleged are around 43 of alleged export of goods having nexus with the smuggling activities. Yet the petitioner has not been furnished with the copies of the other remaining shipping bills as those shipping bills bore the signatures of some other exporters and have nothing to do with any alleged export of contraband goods. According to Shri Merchant the name of the exporter in the remaining bills is some other person and, therefore, if the petitioner was furnished with the copies of the remaining shipping bills, that would have demolished the case of the Customs Department (sponsoring authority) that there was a common exporter for all the shipping bills. Non-supply of 17 shipping bills out of 43 shipping bills which are vital documents and having not been placed before the detaining authority the sponsoring authority has suppressed this vital material. In the absence of these 17 shipping bills, the detenu could not make the effective representations under Art. 22(5) of the Constitution. This submission, in our opinion, proceeds on the erroneous assumption that the detaining authority has relied upon and considered 43 shipping bills. On the contrary on perusal of sub-para (15) of para I of the grounds of detention it is manifestly clear that the detaining authority has not relied upon all the 43 shipping bills but they have only referred to the fact that on the earlier 43 occasions the detenu has smuggled out of India the contraband articles. Sub-para (15) of the Para I of the grounds of detention reads as under :-
'15. In his statement dt. 15-3-1983 E. U. Borgaonkar has provided description of Ebrahim and Yusuf, his accomplice and of More, Fernandez's Assistant. He has confirmed that he along with Fernandez More and Ebrahim had handled the forty-three consignments of M/s. Rushina Trading Corporation and M/s. National Trading Corporation booked through M/s. Asiatic Travel Services and Cargo Private Ltd., during the year 1982-83, and the Examination Reports etc. on the shipping bills covering the said consignments were written and signed by Fernandez with his consent and knowledge. He has also stated that Ebrahim sometimes used to pay directly to Fernandez and sometimes through him for the illegal job done by Fernandez and that you/used to pay him at your residence for the illegal job done by him (Borgaonkar). He has further added that he was aware that address of Exporters given in respect of the said 43 consignments were false and that the addresses were taken out from telephone directory by Iqbal Rupani.'
'II. You are the brain behind the smuggling activities. You attempted to smuggle silver out of India illegally and clandestinely by utilising services of many persons viz., E. U. Borgaonkar, A. N. Fernandez, Yusufali, Razakali etc. by paying monetary consideration to all of them. In the past, as well you appeared to have smuggled snake skins and silver out of India on around 43 occasions.'
16. The detaining authority has filed a detailed reply in this connection. In para 9 of the said return it is stated :-
'9. With reference to para 11 of the petition, I say 26 shipping bills were placed before me when I considered the case of the detenu. I say the copies of the said 26 shipping bills were supplied to the detenu along with the grounds of detention. I say Shri Borgaonkar in his statement dated 15th March 1983 had stated that he along with Fernandez and others had handled 43 consignments of M/s. Rushina Trading Corporation and M/s. National Trading Corporation booked through M/s. Asiatic Travel Services and Cargo Private Limited during the year 1982-83 and that examination reports, 'passed for Shipment' endorsements and the signatures of the Customs Authorities on the shipping bills covering the said 43 consignments were forged by Fernandes ...'
We have also gone through the list of documents placed before the detaining authority at Ex. D. and we find from the said list that what was placed before the detaining authority were the 26 shipping bills and nothing more. After reading these rival pleadings as well as on perusing the grounds of detention and the list of documents at Ex. D, we are satisfied that what was placed before the detaining authority were only 26 shipping bills and the copies of the same were supplied to the detenu. The remaining 17 shipping bills were neither placed nor considered by the detaining authority and, therefore, non supply of copies of these documents to the detenu, in our opinion, does not vitiate the order of detention on any score. In respect of the remaining 17 shipping bills and/or consignments the detaining authority has placed reliance upon the statement of Borgaonkar which finds corroboration from the statements of Fernandez, Yusufali and Razakali. The statements of these witnesses unmistakably show that on the earlier 43 occasions consignments were sent out of India which contained the contraband articles. This material was found sufficient by the detaining authority to reach a subjective satisfaction in connection with the probable smuggling activities of the detenu in future. In view of this material it could not be said that there was no material before the detaining authority in connection with these 43 consignments. The entire approach of Shri Merchant in connection with these shipping bills is erroneous because he erroneously assumed that 43 shipping bills were placed before the detaining authority but only copies of 26 shipping bills were supplied to the detenu. After going through the grounds of detention as well as the return filed by the detaining authority, it is clear that the detaining authority has relied upon and considered only 26 shipping bills out of these 43 instances and for the remaining 17 instances, the detaining authority has placed reliance and considered the statements of Borgaonkar, Fernandez etc. It is well settled that in a petition of habeas corpus sufficiency of material cannot be a ground to strike down the order of detention. Having regard to the facts and circumstances of the case we do not think that non supply of 17 shipping bills which were not relied on or considered by the detaining authority has any way affected the fundamental right of the detenu under Art. 22(5) of the Constitution.
17. In this connection Shri Merchant feebly argued that there is no material to show the nexus between the detenu and the National Trading Corporation which booked the 43 consignments through M/s. Asiatic Travel Services and Cargo Private Ltd., during the year 1982-83. According to the learned counsel since the copies of remaining 17 shipping bills were not, supplied to the detenu he was unable to know how these bills got connection with the petitioner and the National Trading Corporation. This argument is again devoid of any merits. In para 15 of the grounds of detention it is recited that E. U. Borgaonkar has confirmed that he along with Fernandez, More and Ebrahim had handled the forty three consignments of M/s. Rushina Trading Corporation and M/s. National Trading Corporation booked through M/s. Asiatic Travel Services and Cargo Private Ltd., during the year 1982-83. He also further admitted that Fernandez used to do the illegal job and for that purpose the detenu used to pay him at his residence. There is therefore enough material on the record to show the nexus between the detenu and the National Trading Corporation and it is futile exercise on the part of the detenu to contend that he had no connection with the National Trading Corporation.
18. The second compartment in connection with this last ground of non supply of documents is with reference to G.R.I. forms. The allegations in this connection are found in para 11 of the petition, which are as follows :-
'.... The petitioner further submits that he has not been furnished with any copies of G.R.I. forms in respect of the consignment under seizure or copies of G.R.I. forms of other shipping bills which are mentioned from serial Nos. 78 to 103 in Ex. D. The Petitioner says that G.R.I. forms are most important and vital documents which show that the goods have been actually taken inside the Air Cargo Complex for the purposes of export and the said G.R.I. forms contained all details about the consignment and the exporter and the consignee. The petitioner submits that copies of G.R.I. forms were also not placed before the detaining authority and such forms have been not considered by the detaining authority and on account of non-consideration of such vital and material facts, the subjective satisfaction of the detaining authority is vitiated and the order is rendered illegal The petitioner further says that on account of non-supply of copies of G.R.I. forms, he is disabled from making an effective representation against his detention and his fundamental rights under Art. 22(5) of the Constitution are violated and the order of detention is rendered illegal.'
19. The detaining authority while replying to these allegations in its return has stated that the G.R.I. forms relating to 26 shipping bills were not placed before it and the said G.R.I. forms would not have affected its subjective satisfaction adversely but on the contrary they would have strengthened subjective satisfaction. The detaining authority further stated that G.R.I. forms were neither material nor vital documents. These documents were not considered by it while passing the order of detention and, therefore, the copies were not supplied. In addition to the affidavit of the detaining authority, one Shri S. S. Chadha, Superintendent of Customs, also filed the affidavit explaining the nature of the G.R.I. forms. Shri Chadha in his affidavit has stated as under :-
'I say in respect of the said two consignments, two G.R.I. forms and two Gate Passes were also recovered by the Customs. I say, the said two G.R.I. forms and Gate Passes corroborate the Customs case. I say the said two G.R.I. forms or the Gate Passes were not sent to the Detaining Authority along with the other material. I say as the said two G.R.I. forms and the two Gate Passes corroborate the Customs Case, the said documents would not have affected the subjective satisfaction of the Detaining Authority adversely, but on the contrary they would have strengthened the subjective satisfaction.'
The Detaining Authority (Shri B. K. Chougule) in his affidavit has further stated that for the purpose of air bills, G.R.I. forms he adopts the affidavit of Shri S. S. Chadha. Since a very serious argument is advanced before us that G.R.I. forms were the vital documents and they ought to have been placed and considered by the detaining authority and since they have not been placed before the detaining authority the impugned order is vitiated, in order to determine as to whether G.R.I. forms were really vital and material documents and because of not placing the same before the detaining authority whether the impugned order of detention is rendered illegal for want of subjective satisfaction, we have ourselves looked into these G.R.I. forms. Shri Merchant also inspected the G.R.I. forms in the Court and after perusal of the said forms he was unable to demonstrate as to how these G.R.I. forms were vital and material. In this behalf it is also material to note that it is not the recital in the grounds of detention that these G.R.I. forms were forged by the detenu or by his associates. G.R.I. forms, therefore, in our opinion, are formal documents to be submitted to the Customs along with the duplicate and triplicate copies with necessary details of the goods. Since we have come to the conclusion that G.R.I. forms are neither vital nor material documents and they are just formal documents non placement of the same before the detaining authority would not vitiate the subjective satisfaction of the detaining authority.
20. It is then submitted by Shri Merchant that G.R.I. form is an integral and inseparable document from the Shipping bill, the gate pass and the air bill. According to Shri Merchant all these documents were required to be handed over to the Customs Department before the goods or consignments enter the air cargo complex and unless and until the Customs Authorities clear off all these formalities the goods and/or consignments cannot reach the air cargo complex. It appears that factually it is true that all these documents were required to be handed over to the customs authorities and after necessary checking and inspection carried out by the customs authorities the goods and/or consignments can reach the air cargo complex. The G.R.I. form is an independent document and cannot be said to be an inseparable document. Merely because the consignor is required to submit all these four documents together to the customs authorities is does not necessarily follow that these documents are not separable. It is true that they have got some connection with each other but that is only with reference to the identity of the goods and some other particulars. We will point out at a little later stage as to how the other documents viz. gate passes, air bills and shipping bills were forged in the present case and in the light of the said forgery, G.R.I. forms will have to be viewed in their proper perspective. At this stage we may only conclude that G.R.I. forms were not at all vital and/or material documents. In fact the detaining authority has not relied upon and considered these G.R.I. forms and, therefore, in our opinion, the impugned order of detention cannot be struck down on the grounds of non-placement of the G.R.I. forms before the detaining authority and non-consideration of the same has vitiated its subjective satisfaction.
21. Coming to the third compartment viz. the Gate passes, it is alleged in para 13 of the petition that whenever the goods are taken for customs examination and presented at the counter along with the shipping bills they are examined and then gate passes are issued for taking the goods inside the customs area for export purposes. The gate passes are issued in duplicate and are signed by the same officer who examined the goods and the party is required to hand over one copy of the gate pass along with the goods and the shipping bills. When the goods are examined, the officer makes an endorsement on the duplicate and the triplicate copy of G.R.I. forms in token of having passed the consignment. The detenu then averred that the procedure for export of goods necessarily requires G.R.I. forms in triplicate and gate passes are issued in duplicate. The detenu then stated that he has not been furnished with copies of either the gate passes or the G.R.I. forms and on account of non supply of these documents he was disabled from making an effective representation and his fundamental rights under Art. 22(5) of the Constitution are violated and thus the order of detention is rendered illegal.
22. The detaining authority in this behalf in its return has stated that the gate passes were not placed before it and they were not relied upon and considered by it. Shri Chadha, the Superintendent of Customs in his affidavit has stated that the gate passes were recovered later on. He further stated that the gate passes corroborate the customs case and the said documents would not have affected the subjective satisfaction of the detaining authority. In this behalf in the grounds of detention the detaining authority has relied upon the statement of Shri Borgaonkar who has stated that Fernandez used to arrange for getting the shipping bills passed by the customs and he used to forge the relevant documents viz. shipping bills, gate passes, air bills etc. Borgaonkar has also further stated that detenu used to pay to Fernandez for doing this illegal job. Fernandez in his statement at page 104, of the compilation has stated as follows :-
'...... I used to never present the shipping bills to the said staff or the cargo to them for examination by customs. In respect of all these 43 shipments, I had forged the examination reports on the reverse of the duplicate shipping bills and had myself signed below the forged examination report. I had also made the 'passed for shipment' endorsements on the face of all these 43 shipping bills and forged the signature of the examiner. Thereafter I used to show the airway bill to the customs sepoys in the exports shed and they used to put the statement 'passed' on the packings which were not opened and to stencil 'Examined' On the packings which I had assessed (sic) the carpenter to open in rest-cropped (sic). I may add that I was also forging the examiner's signature on all the gate passes. After these formalities are completed I used to hand over the shipping bills with the Airway bill copy and the gate pass to the Air India Staff in the Export shed for making arrangements for the shipment of the goods for Comelier (sic) all these forgeries as stated above I was paid by Shri Borgaonkar a compensation of Rs. 200/- 3000/- per shipping bill.'
23. The question therefore is, although the gate passes, were not placed and considered by the detaining authority (whether that) would vitiate the impugned order. This argument could have certainly assumed importance if there would have been no material before the detaining authority to come to the conclusion that the gate passes, shipping bills and the airway bills were forged and on the basis of these forged documents the goods and/or consignments were taken to the air cargo complex. It is not averred in the petition that there was material before the detaining authority to show that gate passes were forged and on the basis of these forged gate passes the goods and/or consignments were taken to the Air Cargo Complex. The gate passes, in our opinion, although not placed before the detaining authority would not vitiate the order of detention. In fact the detaining authority has stated that the gate passes were not relied upon and considered by him for his subjective satisfaction and he has only relied upon the statements of Fernandez and Borgaonkar to reach a subjective satisfaction that these gate passes were forged and on the basis of these forged documents the goods and/or consignments appear to have been taken to the Air Cargo Complex. In our opinion, therefore, the argument of Shri Merchant that not placing the gate passes before the detaining authority for its consideration would vitiate the order does not appeal to us at all.
24. The fourth compartment in connection with the non supply of documents is with reference to airway bills. The said averment is found in para 12 of the petition. The allegation more or less is the same as in connection with the gate passes and, therefore, we do not think it necessary to reproduce the same. The detaining authority in his affidavit has stated that the airway bills were not placed before him and he has not considered the same. He has relied upon the statements of Fernandez and Borgaonkar to reach a subjective satisfaction that these documents were forged and to this forgery the detenu was actively associated and this inference, in our opinion, cannot be said to be without any material before him. This submission, therefore, again has no substance and has got to be rejected.
25. Shri Kotwal, appearing on behalf of the detaining authority urged that this Court can see itself the documents to determine as to whether these documents are vital or not and in support of this submission, Shri Kotwal relied upon the unreported judgment of this Court in Criminal Application No. 1269 of 1981 with Criminal Application Nos. 1521, 1561 and 1562 of 1981 decided on October 4, 1981 by Dharmadhikari and Puranik, JJ. The facts of the unreported judgment show that the diary or the note book was not placed before the detaining authority nor the same has reflected in the grounds of detention. But a grievance was made before the Division Bench that these documents were vital and, therefore, the copies of these documents should have been supplied to the detenu. Relying upon several judgments of the Supreme Court the Division Bench observed as follows :-
'Unless it is indicated or shown that the entries made in the note book or diary were contrary to the statements made by the detenu or could have affected its veracity, it cannot even be said that the said material was vital and non-consideration of it has therefore resulted in vitiating the order of detention. If on the contrary as stated by Shri Karnik in his affidavit the said note book or the diary would have strengthened the satisfaction arrived at by the detaining authority, then in our opinion it cannot be said that non-consideration of the said documents or non-placing them before the detaining authority has in any way vitiated the satisfaction arrived at by the detaining authority.'
The ratio laid down by this Court in the aforesaid judgment fairly and squarely covers the contention raised by Shri Merchant in connection with non-supply of the documents. As stated earlier Shri Merchant was unable to point out any inconsistency in these documents and the statements of Borgaonkar and Fernandez.
26. These are the only submissions made before us and having heard Shri Merchant at length we do not find any substance in any of the contentions raised before us challenging the impugned order of detention. The petition has no force and the same is therefore liable to be dismissed. The petition accordingly fails and the same is dismissed. Rule is discharged. No order as to costs.
27. Petition dismissed.