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Ladhaji Mavaji JaIn Vs. the Union of India and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petn. No. 5 of 1983
Judge
Reported in1983(2)BomCR90; (1983)85BOMLR339
Acts Constitution of India - Article 22(5); Conservation of Foreign Exchange and Prevention of Smuggling (Activities) Act -Sections 3(1)
AppellantLadhaji Mavaji Jain
RespondentThe Union of India and Others
Excerpt:
.....to him -- communication of order whether not in compliance with article 22(5) -- time taken by detaining authority for examining material for detention -- delay in passing order whether impairs detention.;in every case of detention, a copy of the order of detention must necessarily be served upon the detenu before he is taken into custody.;in the case of a detenu who is not acquainted with the english language, the grounds of detention must be supplied to him in the language understood by him.;in the case of a detenu not acquainted with the english language, if the order is in substance incorporated in the grounds which are supplied to the detenu in the language known to him at the time of the service of the order of detention itself then there is compliance with the requirements of..........the detention order against him he was relied upon the panchanama dated 15th june 1982, the detenu's statements dated 15th june 1982 and 2nd july 1982 and shri pyarelal walimohammed lakhani's statements dated 15th june 1982, and 28th june 1982 and also the letters dated 23rd june 1982 addressed by both the detenu and the said pyarelal lakhani to the deputy director of enforcement, bombay. the last para of annexure 'b' proceeds to mention the documents on which reliance has been placed by the detaining authority and also states that their hindi translations have been given to the detenu along with the grounds of detention and the detention order. it may be statement straightway at this stage, because some argument has been advanced before us on this point, that the order of.....
Judgment:

Jahagirdar, J.

1. This petition seeks to challenge an order of detention passed by the Additional Secretary to the Government of India under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as 'the COFEPOSA Act', against one Babulal Ladhaji Jain, who is the son of the present petitioner and who will hereinafter be referred to as 'the detenu'. That order is 25th November 1982 and recites to state with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange it was necessary to detain him under the provisions of the said Act. By a communication of the same date, namely 25th November 1982, the detenu was supplied with the grounds of detention and this communication is annexed an Annexure 'B' to this petition. In order to appreciate the various lines of attack made by Mr. Karmali, the learned Advocate appearing in support of the petition, against the order of detention it would be necessary to briefly refer to the material disclosed in the grounds of detention.

2. Annexure 'B' mentions that on 14th June, 1982 information was received by the Bombay Zonal Office of the Directorate of Enforcement that the detenu was indulging in unauthorised purchase and sale of foreign exchange on a large scale and that he was acting as a sort of wholesale purchaser/seller on behalf of small scale foreign exchange racketeers. Para 2 of the said Annexure 'B' mentions that in pursuer of the information so received, the business-cum-residential premises of the detenu were searched on 15th June, 1982. This search yielded U.S. $ 12,560, Pakistan Rs. 5,000/- and Indian currency of Rs. 1,46,500/-. Certain documents were also seized from the said premises under a panchanama. During the course of the search, a person described in the annexure as Pyarelal Walimohammed Lakhani was seen entering the premises and no search of his person the Enforcement Officers recovered U.S. $ 1,625, Canadian dollars 20 and U.A.E. Dirhams 50. This fact is mentioned in Annexure 'B'.

3. Thereafter Annexure 'B' proceeds to mention the fact of a statement having been made by the detenu before the Enforcement Officers and the contents of that statement have been broadly summarised. Para 4 of Annexure 'B' summarises the contents of a statement made by Pyarelal Walimohammed Lakhani on 15th June 1982. In paragraph 5 it is mentioned that the detenu was arrested under S. 35 of the Foreign Exchange Regulations Act 1973 and after he was produced before the Chief Metropolitan Magistrate on 16th June 1982 he was released on bail on 23rd June 1982.

4. The detenu has addressed a letter dated 23rd June 1982 to the Deputy Director of Enforcement in Bombay complaining that he was detained on 15th June 1982 till he was produced in the Court on the next day and during this period of detention the Officer forced him to write a confessional statement and that the said statement was not true. This fact has been recorded in paragraph 6 of Annexure 'B'. Proceeding further, the said paragraph records that in another statement made by the detenu before the Enforcement Officers on 2nd July, 1982, the detenu had confirmed that he had purchased an amount of U.S. $ 1,500 from Pyarelal Walimohammed Lakhani and that U.S. $ 3,800 and Pakistan Rs. 5,000/- were also purchased by him, namely the detenu, from one Shri Usman Pakistanwala. The detaining authority has dismissed the allegations contained in the letter dated 23rd June, 1982 addressed by the detenu to the Deputy Director of Enforcement, Bombay, as baseless.

5. Annexure 'B' in para 7 proceeds to state that in a letter dated 23rd June 1982 addressed by Pyarelal Walimohammed Lakhani to the Deputy Director of Enforcement he has stated that his statement dated 15th June, 1982 was obtained by the Enforcement Officers by force and that the said statement was neither true for voluntary. The detaining authority has, however, dismissed this allegation any noticing another statement made by the said Pyarelal Walimohammed Lakhani on 28th June, 1982. In other words, the detaining authority has refused to accept the retraction made by the said Pyarelal Walimohammed Lakhani of his earlier statement. Thereafter, in para 8 of Annexure 'B', the detaining authority proceeds to mention that :

'From the facts and materials mentioned hereinabove, I have no hesitation in arriving at the conclusion that you have been indulging in activities prejudicial to the augmentation of the country's foreign exchange resources.'

6. The part of Annexure 'B' extracted by us above shows that the detenu was informed the precise reason why he was going to be detained. Thereafter the detaining authority has shown that it has borne in mind that though adjudication proceedings under the Foreign Exchange Regulation Act were likely to be launched against the detenu, the detaining authority was convinced that in view of the materials referred to earlier it was necessary to detain the detenu under the COFEPOSA Act with a view to preventing him from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources. The detaining authority has also informed the detenu that while passing the detention order against him he was relied upon the panchanama dated 15th June 1982, the detenu's statements dated 15th June 1982 and 2nd July 1982 and Shri Pyarelal Walimohammed Lakhani's statements dated 15th June 1982, and 28th June 1982 and also the letters dated 23rd June 1982 addressed by both the detenu and the said Pyarelal Lakhani to the Deputy Director of Enforcement, Bombay. The last para of Annexure 'B' proceeds to mention the documents on which reliance has been placed by the detaining authority and also states that their Hindi translations have been given to the detenu along with the grounds of detention and the detention order. It may be statement straightway at this stage, because some argument has been advanced before us on this point, that the order of detention was served upon the detenu only in English language while the grounds of detention were given to him both in English and Hindi.

7. A return to the petition has been filed and we will be returning to the contents of he return as and when necessary. Mr. Karmali has contended that the detention of the present detenu is illegal inasmuch as the order of detention, which is admittedly in English, was served upon the detenu and its translation in Hindi, a language known to the detenu, was not made available to him at the time when the detention order was served. He is of course, aware of the face that the Hindi translation of the grounds of detention has been supplied to the detenu. However, it is his say that the law requires that not only the grounds of detention but the order of detention also must be supplied to the detenu in a language known to the detenu and it will not be proper compliance with the requirements of law if the order of detention is served in a language which the detenu admittedly does not understand. In support of this contention, Mr. Karmali has relied upon a judgment of a Division Bench of this Court in Magalin Austin Marcos v. State of Maharashtra 1982 M LJ 50. It is not necessary for us to refer in great details to this judgment. It will be sufficient for us to mention that this judgment, after referring to several earlier judgments of the Supreme Court, proceeded to lay down that where the detenu was served with an order of detention in the language not known to him and the translated copy of the said order was not served on the detenu, there is no communication to the detenu of the order of detention within the contemplation of Art. 22(5) of the Constitution. From the facts of Magalin's case it is not clear as to whether in the grounds of detention which were given in the language understood by the detenu, the order of detention was also mentioned. Admittedly in Magalin's case the grounds of detention were translated in the language known to the detenu. If the order of detention had been incorporated in the grounds of detention then, in our opinion, the ruling of the Division Bench would have been other wise.

8. We are emboldened to say this because in a recent judgment of the Supreme Court in Devji Vallabhbhai v. Administrator, Goa, : 1982CriLJ799 this point has been considered in great details and it has been held that if the order of detention which is originally in English is incorporated in the grounds of detention and thereafter the grounds of detention themselves are translated into a language known to the detenu and are supplied to the detenu, then there would not be a non-compliance with the legal requirements. In that case, admittedly, the order of detention was in English. Enclosure, namely Annexure 'B', which contained the grounds of detention together with the materials on which the grounds were based, was in Gujarati. From the material placed before the Court it was found that the petitioner before the Supreme Court knew Gujarati and the grounds of detention contained a reproduction of the order of detention. Therefore, the translated order of detention found its place in the translated grounds of detention. On these facts the Supreme Court that so far as the non-supply of the Gujarati version of the order of detention was concerned there was no violation of Article 22(5) of the Constitution or of any other law because the order was a mere formal recital of Section 3(1) of the COFEPOSA Act showing the provision of law under which the order of detention had been passed. In view of this the detenu was posted with the full knowledge of the contents of the order of detention because it had been translated into Gujarati and had been incorporated into the Gujarati version of the grounds of detention. In our opinion, therefore, it is thus clear that if the order of detention is served upon the detenu and if the grounds of detention as translated in a language known to the detenu contained the translated version of the order of detention, then it cannot be said that merely because the order of detention is not served upon the detenu inn a language known to him there is no compliance with Article 22(5) of the Constitution or of any other law.

9. Indeed, Dharmadhikari J., who delivered the judgment of the Division Bench in Magalin's case, 1982 Mah LJ 50 (with Puranik J.) has in a later judgment in Lalsing v. M. S. Kasbekar, (Criminal Appln. No. 1998 of 1981, decided on 15th March 1982), explained the ratio of Magalin's case as follows :-

'It is the case of the petitioner in the petition itself that he known Hindi language. Therefore, this is one of those cases where the order of detention along with grounds, statements and documents were served on the detenu. The contents of the order were explained to the detenu in Hindi by the Jailor of the Prison and the substance of the order as well as the reasons of detention were substantially reproduced in the grounds of detention. Therefore, in our opinion, to such a case, the observations made by this Court in Magalin v. State of Maharashtra 1982 M LJ 50 will not apply. In that case this Court did not accept the case of the detaining authority that the contents of the order of detention were explained to the detenu in his own language and in those circumstances it was observed by this Court that there was no communication of the order of detention within contemplation of Art. 22(5) of the Constitution of India.'

10. After a proper reading of the judgment of this Court in Magalin's case 1982 M LJ 50 and all the Supreme Court judgments referred to in that case, after reading the Supreme Court judgment in Devji Vallabhbhai's case : 1982CriLJ799 and also the judgment of this Court in Lalsing v. M. S. Kasbekar, we are of the opinion that the following propositions represent the correct law on the subject :-

(1) In every case of detention, a copy of the order of the detention must necessarily be served upon the detenu before he is taken into custody.

(2) In the case of a detenu who is not acquainted with the English language, the grounds of detention must be supplied to him in the language understood by him.

(3) In the case of a detenu not acquainted with the English language, if the order is in substance incorporated in the grounds which are supplied to the detenu in the language known to him at the time of the service of the order of detention itself then there is compliance with the requirements of law. In such a case it is immaterial if the order of detention is not served upon the detenu in the language understood by him.

(4) In the case of a detenu not acquainted with the English language it would be substantial compliance with the requirement to law if the order of detention is explained to the detenu in the language with which he is familiar even though the order is not in substance incorporated in the grounds of detention. This is so even if the order of detention and the grounds of detention are served upon the detenu at different times. However, the fact that the order has been explained must be established by proper material placed before the Court by the detaining authority.

The challenge made by Mr. Karmali to the order of detention, therefore, must necessarily fail.

11. The next ground of attack against the order of detention or at least the continued detention of the detenu made by Mr. Karmali is based upon what he calls the non-supply of a necessary document to the detenu along with the grounds of detention. According to him, the detaining authority has relied upon the documents mentioned in Paragraph 8 of the grounds of detention which included a telephone index which is said to have been seized from the premises of the detenu and which contained the telephone numbers of the persons who were connected with the detenu in the business of foreign exchange. Reference to this telephone index can be found in the detenu's statement dated 15th June 1982. The relevant portion of the statement may be reproduced :

'Today the telephone index that you have seized from me contains the telephone numbers of persons who are connected with me in the business of Foreign Exchange. Some of them are Doctors, Lawyers and friends also.'

Mr. Karmali contends that it was inevitable that the telephone index which had been seized by the Enforcement Officers from the detenu was relied upon by the detaining authority. In order that the detenu should make a proper representation in exercise of his right of representation it was necessary that the telephone index should have been supplied to the detenu. If this is not done, his right to make a representation is considerably impaired. In support of this contention Mr. Karmali relied upon a judgment of the in Mulchandani v. Asst. Secy., Govt. of Maharashtra, : 1982CriLJ1730 . The facts of Mulchandani's case disclose that the detenu had admitted in his statement that he had brought some foreign currency for being handed over to one Naresh an that he was taking the account given by the said Naresh for being handed over to one Vishnu at Dubai. From this the Supreme Court thought that until the actual account which was seized from Gulab Gopaldas and was attested by two witnesses was supplied to the detenu it was not possible for the detenu to make an effective representation against the order of detention to the detaining authority. The contention that the detaining authority merely relied upon the recital in statement and not actually on the account was rejected by the Supreme Court. It was found that in one of the grounds of detention it was clearly stated that a summary made by detenu Gulab Gopaldas of the accounts in respect of the articles smuggled was recovered from him and was admitted by him before the Customs Officers during adjudication proceedings. From the recital in the grounds of detention it was seen by the Court that reliance had been placed upon the account given by Naresh to the detenu for being handed over to Vishnu at Dubai. In those circumstances, the contention of the learned counsel for the detenu that the slip containing the account was a material document which was undoubtedly referred to and relied upon by the detaining authority was accepted and, therefore, it was held that it should have been supplied to the detenu pari passu the grounds of detention.

12. We are unable to find any support from this judgment to the contention of Mr. Karmali in the present case. From the material which is before us it is clear that the detaining authority in the present case has not at all relied upon the telephone index that had been seized from the detenu. On the other hand it is clear to us by reading the grounds of detention and the return filed on behalf of the detaining authority that the latter has relied upon the bare statements made by the detenu that the telephone index seized from him contained the telephone numbers of several persons. Indeed, if they reliance had been placed by the detaining authority he would have looked into the names of the persons and the actual telephone numbers against those persons. Nothing of the kind has been done in the matter. Moreover, the grounds of detention do not disclose that the detaining authority has at any stage relied upon the telephone index.

13. Delay as vitiating the subjective satisfaction of the detaining authority then been taken up by Mr. Karmali while assailing the grounds of detention. He points out that the seizure in question took place on 15th June 1982. The last lap of the investigation into the case was 2nd July 1982. The order of detention has been passed on 25th November 1982. According to Mr. Karmali, this delay has not been properly explained on behalf of the detaining authority. In any case the delay is so gross that one must proceed on the basis that the authorities were not serious at all while passing the order of detention. The facts which have been brought on record in the reply filed on behalf of the detaining authority have convicted us that there is no undue delay or at any rate there is no such delay as to affect the subjective satisfaction of the detaining authority. It has been mentioned on behalf of the detaining authority that the materials relating to the activities of the detenu were forwarded to the Ministry of Finance towards the end of August 1982 through the headquarters of the Enforcement Directorate. Thereafter the materials had to be examined for taking a decision as to whether an order of detention should be made or not. All that time Mr. B. B. Gujral, who was the Additional Secretary authorised under Section 3(1) of the COFEPOSA Act to take action, was transferred to another post. Unfortunately, his successor who has passed the impugned order did not take charge till November 1982. In our opinion, this explanation is satisfactory. One must not proceed on the basis that whenever material is sent to the concerned authorities a mechanical order would be passed as soon as such material is received. If time is taken for examining the material or for that matter for awaiting the necessary functionary to take charge of this office before he passed the order, it cannot be said that there is delay which would impair the efficacy of the order or the subjective satisfaction forming the basis of that order. Despite this delay we are of the opinion that the impugned order is not punitive as contented by Mr. Karmali, but is necessarily preventive.

14. On 27th September 1982, according to Mr. Karmali, show cause notice was issued in respect of the proceedings under the Foreign Exchange Regulation Act. It was thus clear that some punitive action was necessarily to follow against the detenu in those proceedings. If this was so, was it necessary for the authorities under the COFEPOSA Act to take preventive action against the detenu This question he not been properly posed before himself and answered by the detaining authority. This is the criticism of Mr. Karmali. We are unable to find substance in this criticism. While summarising the grounds of detention we have already mentioned that the detaining authority was fully aware that proceedings under the Foreign Exchange Regulation Act were likely to be launched against the detenu. Despite that, the detaining authority recorded his conviction that in view of the material which was placed before him it was necessary to detain the detenu under the COFEPOSA Act. The detaining authority was fully conscious that action against the detenu was going to be taken under the Foreign Exchange Regulation Act. One cannot quarrel with the conviction which was arrived at by the detaining authority that in view of the material which was before him it was still necessary to detain the detenu.

15. One mistake, which can be called a typographical error, has been made the subject of much argument by Mr. Karmali. We have mentioned while summarising the ground of detention that one Pyarelal Walimohammed Lakhani entered the premises of the detenu when the search was going on. The word 'Pyarelal' has been repeated in the grounds of detention. Ultimately it has turned out that the said person is not Pyarelal but Pyarelal Walimohammed. This is clear according to Mr. Karmali for the statement made by the said Pyarelal and also by his further statement by which the said Pyarelal retracted from his earlier statement. While passing the detention order, the detaining authority has consistently referred to the said Pyarelal as Pyarelal. This shows, according of Mr. Karmali, the casual manner inn which the detaining authority has approached his task. This must necessarily impair the strength of the subjective satisfaction arrived at by the detaining authority. It may be noted at this stage that the detenu's own statement throughout mention the name of the person concerned as Pyarelal Valimohammed Lakhani. The words 'Pyarelal' and 'Pyarelal' are phonetically so similar that it is impossible not to make some confusion between the two, especially when one of the concerned persons himself refers to him as 'Pyarelal'. In our opinion, there is no casualness involved in this mistake, if at all it can be called a mistake, made by the detaining authority.

16. Similarly we must also reject Mr. Karmali's criticism of the order of detention based upon some misquoting of the dates. For example, it has been contended in the petition that the detaining authority failed to appreciate that the said Pyarelal in his statement dated 15th June 1982 had stated that on 14th June 1982 he had sold 1500 U.S. Dollars to the detenu whereas in his second statement dated 28th of June 1982 the date had been mentioned as 13th June 1982. The detaining authority inn Paragraph 4 of the grounds of detention while referring to the alleged statement of the said Pyarelal recorded on 15th June 1982 has referred to that statement as of 14th June 1982. Similar apparent discrepancy has been shown in the same paragraph on page 18 of the petition. The affidavit in reply mentions that the alleged discrepancy in dates is not a mistake committed by the detaining authority. It is submitted that Pyarelal in his statement of 15th June 1982 has stated that he sold the foreign exchange 'yesterday' thereby meaning that on 14th June 1982 he had sold the said foreign exchange. The discrepancy is more apparent than real and not much importance can be attached to the same. The challenge made by the detenu's father, who is the petitioner before us, to the order of detention must, therefore, fail.

17. In the result, this petition fails. Rule is discharged.

18. Rule discharged.


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