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Smt. Sushila Bhoormal JaIn Vs. State of Maharashtra and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petn. No. 519 of 1983
Judge
Reported in1984(2)BomCR145
Acts Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3 and 11; Customs Act, 1962 - Sections 108
AppellantSmt. Sushila Bhoormal Jain
RespondentState of Maharashtra and Others
Excerpt:
.....of detention - substance and form have given correct indication to detenue - grounds supplied to detenue - held, detention in accordance with law. - - union of india, 1981crilj606 .the decision was given on 9-3-1981. a representation dated 24-10-1980 was rejected on 25-11-1980. it was held that the detention was bad as there was no explanation for the delay. , the detaining authority, as well as of the right of making a representation to the central government for revocation of the order of detention under s. he, therefore, contended that there was unexplained delay on account of this negligence and that it would render the detention bad. in our opinion it will not be possible for the petitioner to contend that such a mistake would render the detention bad. from 15-4-1983 to..........the detenu has made a representation to the central government. however, the superintendent or the state government did not at all send the said representation to the central government. thus the valuable right of the detenu to make representation was violated and it is in this background that the detention order was quashed. in our opinion this decision will not be of any use as in that case on account of laches on the part of the concerned authorities the representation was not at all considered. shri karmali laid much stress on another decision of the supreme court in the case of harish pahwa v. state of u.p., : 1981crilj750 . in that case the representation was made on 3-6-1980. it was considered and rejected on 24-6-1980. shri karmali drew our attention to, the fact that the supreme.....
Judgment:

B.C. Gadgil, J.

1. The petitioner who is the wife of detenu Bhoormal Jain is challenging the detention order issued under S. 3, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The allegations against the detenu on the basis of which the detention order was passed are :

The detenu is a dealer in silver. On receipt of the information that the detenu was dealing or smuggling silver out of India, a watch was kept on the premises of the detenu viz. Sameer Jewellers. On 22-2-1983 a motor-car No. MMB 2703 driven by the driver Iqbalcame to the said premises. Silver ingots were loaded and Iqbal started taking away the said silver. He started driving the car, however, the Customs Officials intercepted. Iqbal attempted to escape. It was not possible. He, therefore, abandoned the car and started running away, however, he was caught. Seven ingots of silver were found in the dicky while there were three ingots under the left side of the front seat. The total weight of the silver was over 301 kgs. and the value was Rs. 9,85,775/-. The said silver was not accompanied by any transfer voucher. The said silver was attached. Enquiries were made and it was found that the silver was purchased from one Prakash Premchand and that the markings on the silver ingots were obliterated to some extent in an attempt to suppress the fact that these ingots were so purchased. According to the detenu he gave that silver to a refinery known as M/s. Balkrishna Vilesh & Co. for making small pieces popularly known as chorsas and thereafter he delivered those chorsas and that thereafter he delivered those chorsas to one Pratapram of Bhavani Traders. It is alleged that this version of the detenu was false and that in fact he has not given the silver (purchased from Prakash Premchand) to the refinery for preparing chorsas, on the contrary he wanted to smuggle the silver out of India and in that process he put the silver in the motor-car with a view to make the necessary transport. During the investigation by the Customs Officials the materialwas collected to show that only paper entries were made and formal challans were prepared showing the delivery of the silver by the detenu to the refinery known as M/s. Balkrishna Vilesh & Co. and that there were also similar paper entries and preparation of formal challans showing the delivery of the chorsas to the detenu.

2. With these allegations the impugned order dt. 27-6-1983 for the detention of the detenu was passed by the Government. Along with the order the grounds of detention were formulated vide annexure 'C'. It is not disputed that these grounds in English as also the material that was placed before the detaining authority was supplied to the detenu. In addition, the necessary translation in Hindi of all these documents was also supplied.

3. In this petition a number of contentions have been raised for challenging the detention order. However, all those contentions have not been urged before us. Only some of the contentions have been pressed before us and hence we would consider those contentions or grounds that are urged by Shri Karmali on behalf of the petitioner. The first contention of Shri Karmali is that the detention became vitiated on account of the delay on the part of the concerned authority in considering the representation made by the detenu. For understanding this contention it will be necessary to make a mention of a few facts. The detention order was served on 7-7-1983. The detenu made a representation on 3-8-1983 and the representation has been considered and rejected on 6-9-1983. Thus the decision on the representation was taken after about 34 days. Shri Karmali relied upon a few decisions of the Supreme Court. For example, he drew our attention to the decision of the Supreme Court in case of Kamla v. State of Maharashtra, : 1981CriLJ353 . This case was decided on 6-1-1981. In this case the representation of the detenu was decided after about a month. In para 2 of the judgment the Supreme Court observed as follows :

'This Court has held in numerous cases that the representations of the detenus should be disposed of as soon as possible and even an unexplained delay of 12 to 14 days has been held to be fatal to the order of detention ......'.

In para 8, the Supreme Court found that the decision on the representation was taken after about 25 days and that this delay was fatal.

4. Another decision on which Shri Karmali relies is in the case of Khatoon Begum v. Union of India, : 1981CriLJ606 . The decision was given on 9-3-1981. A representation dated 24-10-1980 was rejected on 25-11-1980. It was held that the detention was bad as there was no explanation for the delay. There is another decision of the Supreme Court in the case of Rattan Singh v. State of Punjab, reported in : 1982CriLJ146 . This decision is dt. 22-10-1981. In that case the detenu has made a representation to the Central Government. However, the Superintendent or the State Government did not at all send the said representation to the Central Government. Thus the valuable right of the detenu to make representation was violated and it is in this background that the detention order was quashed. In our opinion this decision will not be of any use as in that case on account of laches on the part of the concerned authorities the representation was not at all considered. Shri Karmali laid much stress on another decision of the Supreme Court in the case of Harish Pahwa v. State of U.P., : 1981CriLJ750 . In that case the representation was made on 3-6-1980. It was considered and rejected on 24-6-1980. Shri Karmali drew our attention to, the fact that the Supreme Court has taken into account as to whether at various stages of the consideration of the representation there was delay or not. He also contended that the detention was set aside even though the representation was decided within about 23 days. According to him this decision would indicate that the delay in consideration of the representation would vitiate the detention. There is another unreported decision in the case of Shankar Raju (Writ Petn. No. 640 of 1980 decided on 26-6-1980). In that case the representation was made on 4-3-1979 and it was rejected on 25-3-1979. It was found that there was no explanation for the delay of 12 days.

5. Shri Kotwal, for the respondents, contended that all the abovementioned decisions would not be of any use to the petitioner particularly when in the subsequent decision of the Supreme Court in the case of Sat Pal v. State of Punjab, : 1981CriLJ1867 , a different view about the delay and its effect has been taken. This decision has been given on 10-10-1981. There, the detenu made two representations dt. 6-7-1981. One was addressed to the State Government and the other to the Central Government. These representations were sent through the Jail Superintendent who in his turn sent them to the State Government on 7-7-1981 with a request that the representation meant for the Central Government may be forwarded ahead to that Government. The State Government received both the representations on 8-7-1981. The representation addressed to the State Government was rejected on 24-7-1981. However, there was delay in sending the second representation to the Central Government. That representation was actually sent to the Central Government on 23-9-1981. It was received by the Central Government on 24-9-1981 and it was rejected on 28-9-1981. The contention on behalf of the detenu was that the detention is vitiated as the State Government has delayed the sending of the representation to the Central Government by about two months. Shri Kotwal relied upon the following observations in para 12 of the judgment :

'In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under S. 11 of the Act, unlike in Rattan Singh's case : 1982CriLJ146 . There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under S. 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality'.

It is thus clear that mere unexplained delay would not always be decisive. This question has been again considered in the case of Raisuddin v. State of U.P., : 1983CriLJ1785 . The relevant head-note reads as follows :

'The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case. If on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, it will undoubtedly be treated as a factor vitiating the continued detention of the detenu ......'.

Shri Kotwal also relied upon the earlier decision of the Supreme Court in the case of D. S. Roy v. State of W.B., : 1973CriLJ446 . However, it is not necessary to consider that decision in detail inasmuch as the facts were quite different. There, the only lacuna was that the communication about the rejection of the detention was not made within the reasonable time. The Supreme Court observed that the effect of such non-communication would be an irregularity but it would not make the detention illegal.

6. It is thus clear that it would be too broad a proposition to say that in every case unexplained delay would vitiate the detention. Secondly it is also necessary to find out as to whether the concerned authority has given some reasonable explanation about the delay. The respondents in the affidavit-in-reply (vide para 4) have given the details as to how the representation has been processed. Those details are : On 3-8-1983 the representation was made. On 4-8-1983 the representation was forwarded to the Government. On 9-8-1983 it was received by the State Government. On 9-8-1983 it was sent to the Assistant Collector of Customs, Pune, for his remarks though it ought to have been sent to the Assistant Collector of Customs, Bombay. On 12-8-1983 the Assistant Collector of Customs, Pune, sent back the representation to Bombay. On 20-8-1983 it was received by the State Government and was forwarded to the Assistant Collector of Customs, Bombay. On 30-8-1983 Bombay Office forwarded the remarks. On 1-9-1983 those remarks were received by the Government. On 2-9-1983 the representation was rejected. On 6-9-1983 the detenu was informed about the rejection. The grievance of Shri Karmali is that there was gross negligence on the part of the detaining authority to send the representation to the Assistant Collector of Customs, Pune, instead of sending to the Assistant Collector of Customs, Bombay. He, therefore, contended that there was unexplained delay on account of this negligence and that it would render the detention bad. In our opinion such an approach would be too technical to be accepted. At the time of the arguments of this writ petition Shri Kotwal showed us the representation which runs into 19 pages and in that background it will not be possible for Shri Karmali to contend that the representation need not have been sent to the Customs Officials for their remarks. The remarks were necessary and the representation was, therefore, sent, however, by mistake to Pune. In our opinion it will not be possible for the petitioner to contend that such a mistake would render the detention bad. This is more so when it is not even alleged that there were any mala fides on the part of the State Government in sending the representation to Pune instead of sending it to the Customs Officials, Bombay. As a matter of fact, sending such representation to the Customs Officials for remarks is an indication that the detaining authority intended to process the representation in an expeditious manner. It is not the case of the petitioner that the representation was purposely sent to a wrong address to avoid or evade expeditious consideration of the representation. The decision to send the representation for remarks on the day next after it was received is an indication that the detaining authority intended to have expeditious consideration of the representation. To err is human and an error of the above type would not vitiate the detention unless it is alleged and proved that the said error was committed with mala fides, recklessness or was a ruse to delay the matter. We do not think that any such contingency exists here. It would, therefore, be difficult for Shri Karmali to contend that a mistake in sending the representation to Pune should be utilised by us for the purpose of quashing the detention order.

7. The next contention of Shri Karmali is that the detention order itself has not been issued expeditiously and that delay in that respect was prejudicial. For that purpose he relied upon the following facts : On 22-2-1983 the incident in question took place. On 11-4-1983 the investigation was completed. On 15-4-1983 a proposal for the detention was received at the Secretariate. On 27-6-1983 the order of detention was issued. Thus the detention was issued within about 4 1/2 months. Shri Karmali frankly stated before us that this period cannot be treated as the one which snapped the live line between the incident and the detention. He, however, urged that there was an inaction on the part of the State Government for about two months i.e. from 15-4-1983 to 27-6-1983 and as such the detention would be bad for this reason. He relied upon the decision of the Supreme Court in the case of Rabindra Kumar v. State of W.B. : 1975CriLJ1235 . In that case the detention order was issued three months after the receipt of the proposal, and the Supreme Court had held that the chain of communication between the dangerous activities and the detention order is snapped by this long and unexplained delay. However, we have already stated that the entire matter has been processed within about 4 1/2 months and in the affidavit-in-reply (vide page 139) the delay is explained by saying that along with the proposal of the detenu there were four other proposals to be considered by the State Government. Thus the State Government was to take decisions in about 5 matters and consequently it will not be possible to hold that there was any delay. Shri Kotwal submitted that in the present case the concerned authority has actually taken a decision on 19-4-1983 to issue detention order and that the grounds were also formulated on that day. According to Shri Kotwal it was necessary to translate various documents in Hindi and after getting those documents translated a formal order has been issued on 27-6-1983. Shri Kotwal has showed us the concerned file wherein we find that the detaining authority has taken a decision on 19-4-1983 to pass detention order and formal order was actually issued at a later stage as mentioned above. It would, therefore, not be possible for Shri Karmali to contend that there was any delay between 15-4-1983 to 27-6-1983. We may passingly refer to the decision of the Supreme Court in the case of Gora v. State of W.B. : 1975CriLJ429 . The relevant head-note reads as follows :

'The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu are such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it'.

8. In view of the facts mentioned above and particularly in view of the abovementioned decision of the Supreme Court : 1975CriLJ429 there is no substance in the contention of Shri Karmali that there was any inordinate delay or inaction on the part of the State Government from 15-4-1983 to 27-6-1983.

9. While narrating the incident dt. 22-2-1983 we have mentioned about the fact that the markings on the silver ingots were obliterated at the instance of the detenu. In para 4 of the grounds of detention. There is a statement as follows :

'The statements of S/Shri Iqbal Abdulla Patel, Gopal Manaji Parab, Pratapram B. Mali and Mahadeo Babaji Rewali revealed that after purchasing the said 10 silver ingots you obliterated the markings on them to avoid detection'.

Shri Karmali contended that a cursory reference to the statement of Iqbal, Gopal and Pratapram would show that these witnesses have not made any mention about such obliteration. It was, therefore, submitted that an averment in the grounds that these witnesses have so stated would be an indication of the non-application of mind by the detaining authority. Shri Karmali relied upon the decision of the Supreme Court in the case of Dwarika Prasad v. State of Bihar, : 1975CriLJ221 . In that case the grounds of detention have mentioned that the cash memo No. 70996 dated 14-2-1974 showed sale of 1200 litres of high speed diesel but factually there were two cash memos, one for 200 litres and the other for 1000 litres. It was held that this would indicate non-application of mind. In our opinion, the question as to whether there was any non-application of mind will have to be decided on the facts of each case. There cannot be any generalisation that in a particular set of circumstances the non-application of mind should be presumed. Everything will depend upon the nature of the allegations made. Secondly it cannot be said that the law does not ignore a mistake here or a mistake there. Thus a mere mistake would not be a proof of non-application of mind. In the present case it is true that the grounds of detention do make a mention that along with Mahadeo three others have also stated about the obliteration of the markings on the silver ingots. However, in that very ground, it is stated immediately thereafter that this obliteration has been witnessed by Mahadeo Rewale. Statements of all those four persons have been supplied to the detenu along with the grounds of detention. The fact that in the grounds there is a statement that the obliteration has been witnessed by Mahadeo Rewale would show that the earlier statements of three more persons having deposed about it is a mistake and such an obvious mistake cannot be interpreted as non-application of mind.

10. Shri Karmali has a grievance about the ground No. 11. That ground mentions as to what the driver Iqbal Abdulla Patel, has stated. The relevant portion reads as follows :

'Shri Iqbal Abdulla Patel stated that on 22-2-1983 his friend by name Shri G. Chintaman asked him to go to M/s. Sameer Jewellers and bring 10 silver ingots for which he was paid Rs. 200/- by Shri Chintaman. Shri Chintaman gave his car No. MMB 2703 for this purpose and asked him to bring the car after loading to Victoria Garden, Byculla. He came to M/s. Sameer Jewellers where your servants were present'.

If a reference is made to the statement of Iqbal it can be seen that Iqbal has stated that he drove the car along with Chintaman to Kalbadevi. Silver ingots were loaded in that car and thereafter Chintaman asked Iqbal to bring the car to Victoria Garden. It is true that this very wording has not been reproduced in the ground No. 11. However, a general reading of the statement vis a vis the said ground would show that the detaining authority intended to convey that Iqbal was ordered to bring the car (after it was loaded with silver ingots) to Victoria Garden. The most that can be said in favour of the detenu is that there was some defect in the drafting of the grounds. However, the substance and the form have given correct indication to the detenu. There was simply an inaccuracy of inconsequential nature while reproducing the statement of Iqbal in ground No. 11. Such inaccuracy would be of no consequence particularly when the copy of the statement of Iqbal was also supplied to the detenu along with the grounds of detention.

11. In para 9 of the grounds of detention it is stated as follows :

'Shri Mahadeo Rewale in his statements recorded under S. 108, Customs Act, 1962, on 23-2-1983 and 9-3-1983 stated that he was called by you on 22-2-1983 in the late evening at your shop i.e. M/s. Sameer Jewellers, where he observed that silver ingots were being hammered with a hammer by you and two other persons ......'.

Shri Karmali drew our attention to the fact that such an averment appears in the statement dt. 9-3-1983 and that the statement dt. 23-2-1983 is silent about it. His grievance is that while formulating the grounds as mentioned above the detaining authority should not have alleged that the statement dt. 23-2-1983 mentions about the hammering of the silver ingots. He, therefore, urged that such a mention of a statement dt. 23-2-1983 would be a non-application of mind. Here again this would be nothing but a mistake of an inconsequential nature.

12. It was lastly urged by Shri Karmali that voucher No. 5307 prepared by the refinery owner as also the extracts from his silver register showing the delivery of chorsas to the detenu should have been placed before the detaining authority and the copies thereof should have been supplied to the detenu. The detaining authority in the affidavit-in-reply on page 145 has stated that the preparation of such voucher and the making of the entries in the silver register has been mentioned by Gopal Parab and that he has relied upon this statement of Parab, the owner of refinery. It is this Parab who has arranged the preparation of the challans and the making of entries in the silver register. Once he has stated about this in his statement it was not necessary to have these challans and entries before the detaining authority as such material would be nothing more than a redundant material and it was not necessary to be placed before the detaining authority.

13. These are the only points urged before us by Shri Karmali and as stated above none of the points can be said to be substantial so as to vitiate the detention order.

14. The petition, therefore, fails, the rule is discharged.

15. Petition dismissed.

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