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Taha Abdul Razak Hamadi of Kurbala Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 319 of 1984
Judge
Reported in1985(1)BomCR531; (1984)86BOMLR520
ActsConservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1) and 3(2)
AppellantTaha Abdul Razak Hamadi of Kurbala
RespondentState of Maharashtra and ors.
Appellant AdvocateD.N. Canteenwalla and ;Satish R. Parekh, Advs.
Respondent AdvocateM.R. Kotwal, P.P. for respondent Nos. 1 and 3 and ;V.D. Govilkar, Adv. for respondent No. 2
DispositionPetition allowed
Excerpt:
.....sole discretion of the central government to revoke or modify the order of detention made by the state government. but the central government is under an obligation to consider the report submitted by the state government under section 3(2) of the cofeposa act, 1974.;md. d.a. khan v. state of w.b. [1976] a.i.r. s.c. 734, state of u.p. v. zaved zama khan [1984] a.i.r. s.c. 1095 explained.;mrs. rabia abdul rahim khatri v. state of maharashtra (1984) writ petition no. 98 of 1984 decided on july 4, 1984 by shah and mohta jj. (unrep.) followed.;the discretion of the central government under section 11(1)(b) to revoke or not to revoke the detention order made by the state government is coupled with the duty and that duty is inherent in the very nature of the jurisdiction. the constitution of..........power and that a decision by the central government not to interfere with the decision of the state government after considering the report received under section 3(2) of the said act, does not mean that the central government has failed to determine whether the order of detention need to be revoked or modified under section 11 of the said act.7. i say and submit without prejudice to what i have stated above, that provisions of the said act in general and provisions of sections 3(2) in particular, do not impose any obligation on the central government to invariably communicate to the state government any decision that it may take in respect of the order of detention of a particular detenu which is reported under section 3(2) of the said act or that the report has been received and.....
Judgment:

M.M. Qazi, J.

1. By this petition, the petitioner-detenu has challenged the order of detention dated January 4, 1984 passed by the Assistant Secretary to the Government of Maharashtra, Home Department (Special), detaining the petitioner-detenu under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as 'the Act') with a view to preventing him for engaging in transporting or concealing or keeping smuggled goods. He was taken into custody on the same day, i.e. on January 4, 1984, and the grounds of detention were also formulated and supplied to him on the same day. The incident which gave rise to the impugned order is dated December 7, 1983 when the Customs Officers attached to the Air Intelligence Unit of the Customs (Preventive), Collectorate, Bombay, on suspicion intercepted the petitioner-detenu, who had arrived from Delhi as a domestic passenger by Air-India Flight No. AI-122 with his baggage consisting of one plastic bag and one brown-colored zipper rolling bag with markings as 'SINRICO'. The Customs Officers questioned the petitioner-detenu about the contents of the brown-colored zipper rolling bag and plastic bag. He replied that they were containing used wearing apparels and tin provisions. Not satisfied with this reply, the brown-colored zipper rolling bag was got opened with the help of a screwdriver in the presence of panchas. On opening the bag, the Customs Officers noticed some used wearing apparels underneath which nine bars of gold with foreign markings and weighing 1 Kg. each were found wrapped in a black-colored adhesive tape and tied up with the transparent cellophane paper. All the nine gold bars were placed back in the same brown-colored zipper rolling bag in the presence of panchas. All the aforesaid nine gold bars, totally worth Rs. 16,65,000/- at the local market rate, were seized by the Customs Officers under a panchanama dated December 7, 1983 in the reasonable belief that they were smuggled into India and hence liable to confiscation under the provisions of the Customs Act, 1962.

2. Several challenges have been raised in the petition, but Mr. Canteenwalla pressed Ground No. (H) of para 7 of the petition only, which reads thus :

'Respondent No. 2 has failed to at all consider the report, if any, sent by the respondent No. 1 to respondent No. 2 under section 3(2) of the COFEPOSA Act. In any event, the same has not at all been expeditiously considered by respondent No. 2 with a view to considering whether or not to revoke the detention order under section 11 of the COFEPOSA. In any event, the petitioner has not been informed of the outcome of consideration, if any, of such report. Six months have already elapsed since the time when the report was supposed to have been forwarded. As such, the detention and/or continued detention is illegal, unconstitutional and void.'

3. Two affidavits have been placed on record on behalf of the Central Government, one is by Mr. M. Ram Mohan Rao, working as Senior Technical Officer in the Ministry of Finance (Department of Revenue), New Delhi, and the other is by Mr. K.K. Dwivedi, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. Mr. Govilkar the learned Counsel appearing on behalf of the Central Government i.e. the Union of India, has invited our attention to paras 6 and 7 of the affidavit sworn by Mr. Dwivedi, Joint Secretary, in answer to the ground pressed by Mr. Canteenwalla, which read thus :

'6. I say and submit that the power of revocation is a discretionary power and that a decision by the Central Government not to interfere with the decision of the State Government after considering the report received under section 3(2) of the said Act, does not mean that the Central Government has failed to determine whether the order of detention need to be revoked or modified under section 11 of the said Act.

7. I say and submit without prejudice to what I have stated above, that provisions of the said Act in general and provisions of sections 3(2) in particular, do not impose any obligation on the Central Government to invariably communicate to the State Government any decision that it may take in respect of the order of detention of a particular detenu which is reported under section 3(2) of the said Act or that the report has been received and considered by the Central Government. I say and submit that it is not at all incumbent upon the Central Government to communicate its decision to the detenu pursuant to the receipt of the report under section 3(2) of the said Act from the State Government except when it decides to revoke the order of the State Government. In no other case whatsoever, any such communication is warranted by the provisions of the said Act.'

4. The thrust of the arguments of Mr. Kotwal and Mr. Govilkar is that there is no obligation on the part of the Central Government to consider the report submitted by the State Government under section (2) of section 3 of the Act. For that purpose, they have relied on two decisions of the Supreme Court in the case of Mod D.A. Khan v. State of West Bengal, : 1976CriLJ622 , and State of U.P. v. Zaved Zama Khan, : 1984CriLJ922 . In Md. D.A. Khan's case, the Supreme Court was dealing with the case of a detenu who along with his associates being armed with daggers boarded a third class compartment of a running train and putting passengers of the compartment to fear of death, snatched away a wrist watch and a golden necklace from one Nirmal Chatterjee and his wife and decamped with the booty from the running train. He was detained under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the MISA'), vide detention order dated August 23, 1973, which was passed by the District Magistrate. The report submitted to the Government on August 27, 1973 and the same was duly approved by the State Government on August 30, 1973. On September 10, 1973, the detenu made representation to the Government which was rejected on September 12, 1973. The matter was referred to the Advisory Board and after obtaining its opinion, the order of detention was confirmed by the Government on November 14, 1973. It is also not in dispute that the report to the Central Government was also made immediately after the order of detention was passed. One of the contentions that was raised was that under section 14 of the MISA, it was open to the Central Government to revoke or modify the order of detention after receiving a report from the State Government and, therefore, there must be some material to show that the Government of India applied its mind under section 14 of the MISA. This question has been dealt with by the Supreme Court in para 5 of the judgment. Both Mr. Kotwal, as well as Mr. Govilkar have heavily relied on this para in support of the contention that there was no obligation on the part of the Central Government to consider the report submitted by the State Government under sub-section (2) of section 3 of the Act. Para 5 reads thus :

'5. The fourth contention put forward was that under section 14 of the Maintenance of Internal Security Act it was open to the Central Government to revoke or modify the order of detention after receiving a report from the State Government and, therefore, there must be some material to show that the Government of India applied its mind under section 14. In the first place section 14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government. It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify the order of detention after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind. So far as the State Government is concerned, its duty comes to an end after it has sent a report regarding the detention order to the Central Government. In these circumstances, it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order of detention. There is no material before us to show that the Central Government did not apply its mind at all under section 14 of the Act. The argument on this score is, therefore, rejected.'

We are unable to accept the contention of Mr. Kotwal and Mr. Govilkar that this decision is an authority in support of their contention. At the outset, we may make it clear that these observations of the Supreme Court have to be understood in the background that the Central Government was not a party before it. The Supreme Court observed that the mere fact that the Central Government did not choose to revoke or modify the order of detention without anything more could not necessarily lead to the irresistible inference that the Central Government failed to apply its mind. In the earlier part of this para, the Supreme Court has observed that section 14 of the MISA merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government. It has further observed that it does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify the order of detention after the report is submitted to it. We may make it clear that there is no controversy that it is the sole discretion of the Central Government to revoke or modify the order of detention. The question for consideration before us is as to whether there is any obligation on the part of the Central Government to consider the report under sub-section (2) of section 3 of the Act submitted by the State Government and it is in this context that we have to appreciate the observations of the Supreme Court in para 5 of its judgment referred to supra. In the concluding sentence of this paragraph, the Supreme Court has observed that there is no material to show that the Central Government did not apply its mind at all under section 14 of the MISA. In our view, therefore, this judgment cannot be read as an authority in support of the contention that the Central Government is under no obligation to consider the report submitted by the State Government.

5. The next case relied upon by Mr. Kotwal and Mr. Govilkar is the one reported in the case of State of U.P. v. Zaved Zama Khan, : 1984CriLJ922 . In that case, the Supreme Court was dealing with the case of a detenu who was detained by the District Magistrate, Moradabad, vide order dated November 6, 1982 under sub-section (3) of section 3 of the National Security Act, 1980. The order could not be served on the detenu as he was absconding. As required under sub-section (4) of section 3 of the National Security Act, 1980, the District Magistrate forthwith made a report of the fact to the State Government that he had passed on order for the detention of the detenu under sub-section (3) of section 3 of the National Security Act, 1980, together with the grounds on which the order had been made. The State Government received the order of detention on November 8, 1982 and approved of the same on November 11,1982 and forwarded a report to the Central Government on the next day, i.e. on November 12, 1982. The detenu surrendered to the police on May 24, 1983 and the impugned order of detention was served on him in the District Jail, Moradabad, on June 1, 1983 and the grounds of detention were furnished to him on June 2, 1983. The detenu made a representation on June 18, 1983 through the Superintendent, District Jail, Moradabad, to the District Magistrate. On June 20, 1983, the District Magistrate forwarded the representation to the Advisory Board and the same was received by the Advisory Board on June 21, 1983. The State Government had, in the meantime, on June 13, 1985, made a reference to the Advisory Board under section 10 of the Act within three weeks from the date of detention together with the order of detention and the grounds therefore for its opinion. On June 23, 1983, the representation of the detenu forwarded by the District Magistrate together with his comments was examined by the Joint Secretary, Home Department. The file was place before the Home Secretary on June 27, 1983, who placed it before the Chief Minister. The Chief Minister passed an order rejecting the representation on June 30, 1983. On July 2, 1983, the State Government forwarded the representation made by the detenu together with its comments to the Government of India and the Central Government rejected the same on July 19, 1983.

6. On July 5, the detenu simultaneously addressed two representations for revocation of his detention order under section 14 of the MISA, one addressed to the Prime Minister and the other to the State Government, and the grievance of the detenu was that the Central Government had not dealt with its obligation of revocation of the order of detention under section 14 of the MISA even now. On behalf of the Central Government, it was stated that the Central Government had fully discharged its function by expeditiously taking a decision on the earlier representation directly addressed to it and that it was under no statutory obligation to consider a subsequent representation for revocation of the detention order. The High Court held that the detenu had the right to make an application to the Central Government for revocation of the detention order and the failure on the part of the Central Government to apply its mind to it made the continued detention illegal. In appeal, the Supreme Court set aside the judgement and order of the High Court. The principle and the ratio of that decision are stated in paragraph 13 of the judgement, which reads thus :

'13. The principle that emerges from all these decision is that the power of revocation conferred on the Central Government under section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources, including that supplied by the State Government under sub-section (5) of section 3 or from the detenu in the form of a petition or representation. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation under section 14.'

7. Thus, in our view, this decision is an authority only on the point that there is no obligation on the part of the Central Government to consider a subsequent representation for revocation of the order of the detention under section 14 of the MISA, particularly when it had fully discharged its function by expeditiously taking a decision on the earlier representation. In view of this, we do not think that the decision in that case is at all relevant to the facts of the present case where the grievance of the petitioner detenu is that the report under sub-section (2) of section 3 of the Act is not at all considered by the Central Government.

8. Mr. Canteenwalla has relied on the decision reported in the case of Sabir Ahmed v. Union of India, : [1980]3SCR738 . In that case, it was argued on behalf of the detenu that he had a right to move the Central Government for revocation of the order of detention. For that purpose, he submitted a petition addressed to the Central Government on November 19, 1979, but the Central Government callously ignored it and did not deal with it so far. It was further contended that this delay and inaction on the part of the Central Government for an indefinite period, which exceeded four months, vitiated the detention. While dealing with this contention, the Supreme Court observed as follows :

'It is true that section 3(2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean that the representation made by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention that the Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention, if it simply repeats the same allegations, statement of facts, and arguments which were contained in the representation made to the Detaining Authority. It is common experience that an argument or submission based on certain facts, which does not appeal to a Tribunal or authority of first instance, may find acceptance with a higher Tribunal or supervisory authority. Whether or not the detenu has under section 11 a legal right to make a representation to the Central Government is not the real question. The nub of the matter is whether the power conferred by section 11 on the Central Government, carries with it a duty to consider any representation made by the detenu, expeditiously. The power under section 11 may either be exercised on information received by the Central Government from its own sources including that supplied under section 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the Detaining Authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No, hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protracted procrastination.'

9. The Supreme Court has categorically observed that whether or not the Central Government on such petition or representation revokes the detention order is a matter of discretion but this discretion is coupled with the duty and according to the Supreme Court, that duty is inherent in the very nature of jurisdiction. The Supreme Court has further observed that the report received under section 3 or any communication or any petition received from the detenu must be considered with reasonable expedition. In our view, the contention raised by Mr. Kotwal and Mr. Govilkar runs directly counter to the decision of the Supreme Court. Mr. Kotwal has submitted that these are the passing and casual observations made by the Supreme Court, and therefore, this Court is not bound to follow the same in view of the reported Full Bench decision of this Court in the case of K.P. Doctor v. State of Bombay, : AIR1955Bom220 . We do not think that the observations of the Supreme Court, referred to supra, are merely the passing and casual observations. We have no doubt that the ratio of that decision is that the discretion of the Central Government to revoke or not to revoke its order of detention is coupled with the duty and that duty is inherent in the very nature of the jurisdiction. Mr. Canteenwalla has also invited our attention to the decision reported in the case of Sher Mohammed v. State of West Bengal, : [1975]3SCR154 . It is useful to refer to the relevant portion of para 2 of the said decision, which reads thus :

'2. The scheme of the Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with Article 22 of the Constitution and emphasizes the various stages at which there will be consideration of the need for detention by different authorities, such as the District Magistrate, the State Government and, ultimately, the Central Government. For the effective exercise of this power a scheme has been built into the statute.'

Thus it is apparent that the Constitution emphasises the various stages at which the various authorities should consider the need for detention of the detenu. We may also refer here to one of the latest decisions of this Court pronounced in the case of Mrs. Rabia Abdul Rahim Khatri v. The State of Maharashtra and others, in Writ Petition No. 96 of 1984, decided on July 4, 1984 by Shah and Mohta, JJ. The facts of the case are identical to the facts of our case. This Court relying on the decision in the case of Sabir Ahmed v. Union of India, : [1980]3SCR738 , held that the Central Government was under an obligation to consider the report submitted by the State Government under sub-section (2) of section 3 of the Act.

10. Lastly, it was contended by Mr. Govilkar that the Central Government did consider the report submitted by the State Government under sub-section (2) of section 3 of the Act. In support of his arguments, he has relied on the affidavit of the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, and has invited our attention to paragraphs 6 and 7 of the same which we have already quoted earlier. At the outset, we may point out that both the affidavits placed on behalf of the Central Government on record depict a sorry state of affairs. We have been taken through both the affidavits and we are constrained to observe that they are drafted in a casual way. We have already pointed out above that a specific challenge has been raised in ground (H) of para 7 of the above petition, but no specific reply is given. Both the affidavits are more or less silent on the real controversy. It is only in paragraph 4 of the affidavit of the Joint Secretary to the Government of India that there is some reference to the consideration of the report of the State Government, but that has been done obviously after the decision of this Court in the case of Mrs. Rabia Abdul Rahim Khatri v. The State of Maharashtra and others, Writ Petition No. 98 of 1984, decided on July 4,1984. This was obviously after about seven months. It is needless to say that such reports are to be considered by the authorities expeditiously, and an inordinate delay in considering such report vitiates the order of detention. It does not appear from paras 6 and 7 of the affidavit that report was considered.

11. Lastly Mr. Kotwal invited our attention to the case of Sat Pal v. State of Punjab, : 1981CriLJ1867 . In that case, the representation made by the detenu was forwarded to the Central Government after a lapse of two and half months . Relying on this, Mr. Kotwal has argued that even the delay of two and a half months was not held sufficient to vitiate the order of detention by the Supreme Court. In our view, that decision is quite distinguishable on facts. There was no delay on the part of the Central Government at all in considering the representation which was forwarded to it by the State Government. It is in this context that the Supreme Court has observed that the Central Government acted with great promptitude in dealing with the representation and found no ground to interfere with the order of detention. If further refers to the affidavit of Mr. N.I. Ramanathan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, stating that a copy of the representation endorsed to the Central Government was received in the Ministry of Finance on September 24, 1981 and the said representation was considered by the Central Government and rejected on September 28, 1981. The state of affairs in our case is altogether different. Here, there is no grievance that there was any delay on the part of the State Government in submitting the report under sub-section (2) of section 3 of the Act. On the contrary, it appears that the said report was submitted within the statutory period prescribed under the Act and yet there is no clear indication that the same was ever considered save and except before the decision of this Court in Mrs. Rabia Abdul Rahim Khatri's case on July 4, 1984. In fact, we adjourned this case at the instance of the learned Counsel for the Central Government to enable him to place necessary material before us showing as to how the delay was caused, but even after the grant of the adjournment, all that was shown to us was a telegram from the Joint Secretary to the Government of India which carries us nowhere. Thus, we have no doubt that the report of the State Government was not considered expeditiously by the Central Government and this fact by itself, in our view, is enough to render the continued detention illegal.

12. We, thus allow the petition and set aside the order of detention dated January 4, 1984 passed by the Assistant Secretary to the Government of Maharashtra, Home Department. The petitioner-detenu be released forthwith, unless he is required in any other case. Rule made absolute.

13. At this stage, Mr. Kotwal requested for stay of our order to enable him to go to Supreme Court. We, however, do not see any reason to stay the same. The learned Magistrate is directed to hear both the parties while considering the question of granting bail to the petitioner-detenu. He will pass such orders as he deems fit, according to law, after hearing both the parties.


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