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Balchand Choraria Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 37 of 1977
Judge
Reported in13(1977)DLT348
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1) and 5A; Constitution of India - Article 22(5)
AppellantBalchand Choraria
RespondentUnion of India and ors.
Advocates: Ram Jethmalani,; Harjinder Singh,; M.M. Lodha,;
Cases ReferredSouza v. The State of Bombay
Excerpt:
(i) conservation of foreign exchange and prevention of smuggling activities act (1974) - section 3(1)--arrest and detention under--counter-affidavit in writ pennon--by whom to be filed--order of detention--by whom to be made as per rules for allocation of business.; petition for a writ of 'habeas corpus', praying that the petitioner who has been ordered to be detained under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (cofeposa) be set at liberty.; the first contention was that the counter-affidavit on behalf of the union of india, which had not been sworn by the minister of finance who was the detaining authority or by !be official who had processed the case, was invalid:; that as the then minister of finance was no longer in the.....rajindar sachar, j.(1) this is a petition for a writ of habeas corpus praying that the petitioner who has been ordered to be detained under section 3(1) of conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter to be called cofeposa) and is at present lodged in tihar jail, delhi should be set at liberty.(2) earlier the petitioner had been arrested under section 3(1) of cofeposa in pursuance of a detention order dated 19-12-1974 issued by the government of maharashtra. the said detention was challenged by the petitioner's wife by means of c.a. 320 of 1975 in the high court of bombay and the same was quashed by the judgment of 1-7-1975. on 30-7-1975 the central government passed an order stating that whereas with a view to prevent the petitioner from.....
Judgment:

Rajindar Sachar, J.

(1) This is a petition for a writ of habeas Corpus praying that the petitioner who has been ordered to be detained under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be called COFEPOSA) and is at present lodged in Tihar Jail, Delhi should be set at liberty.

(2) Earlier the petitioner had been arrested under Section 3(1) of Cofeposa in pursuance of a detention order dated 19-12-1974 issued by the Government of Maharashtra. The said detention was challenged by the petitioner's wife by means of C.A. 320 of 1975 in the High Court of Bombay and the same was quashed by the judgment of 1-7-1975. On 30-7-1975 the Central Government passed an order stating that whereas with a view to prevent the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange, it was necessary to make an order under Section 3 of Cofeposa and it directed that the petitioner be detained and kept in custody in Central prison, Bombay. It appears that the petitioner after his release by the Bombay High Court had left the country and this order was consequently not served on him. According to the petitioner he came back to India in May, 1977. It is thus that the Central Government in exer cise of the powers conferred by Section 5 of Cofeposa directed by its order of 12-5-1977 that the petitioner be detained under detention order F. No. 673/106/75 Cus Viii dated 30-7-1975 and be kept in custody in the Central Jail Tihar, New Delhi. On 16-5-1977 the petitioner was supplied the grounds on which the detention order dated 30-7-1975 under Section 3(1) of Cofeposa had been made against him.

(3) It would be proper at this stage to reproduce the grounds in extenso. The grounds are as follows :

1.On the basis of an information, the premises of M]/s. Bhuramal Manikchand of 4 Doyhatta Street, Calcutta, in which you are one of the partners, were searched by the officers of the Directorate of Enforcement on 9-9-1961 which resulted in seizure of several incriminating documents. The scrutiny of the seized documents revealed that M/s. Bhuramal Manikchand and its partners including yourself were indulging in foreign exchange violation on a large scale. It revealed that you were acquiring huge amounts of foreign exchange illegally and were selling the foreign exchange in the black market and were also making compensatory payments to persons in India on instructions of persons resident outside India. The following show cause notices have been issued on 21-8-1974 to M/s. Bhuramal Manikchand as well as its partners including yourself :

(1)For making payment on behalf of persons resident outside India without the permission of the Reserve Bank of India to the extent of Rs. 57,03,031 in contravention of Section 5(l)(c) of Fera 1947 in the year 1961.

(2)For buying foreign exchange to wit 9,17,975.4.5 Us $ 2,00,677.78 H. K. $ 1,71,77,184.01 and other foreign exchange equivalent to India rupees 1,58,30,414.13 without the permission of the Reserve Bank of India in contravention of Section 4(1) of Fera 1947.

(3)For selling foreign exchange amounting to 6,73,854.8.8, H. K. $ 1.70,70,556.62 and Pk Rs. 10,000 and other foreign exchange equivalent to Rs. 3,01,39,346.86 without the permission of the Reserve Bank of India in contravention of Section 4(1) of Fera, 1947.

(4)For making payments to persons resident outside India - without the permission of the Reserve Bank of India amounting to Pak. Rs. 34,845 in contravention of Section 5(1)(a) of Fera, 1947 in the year 1961.

THESEcases are pending adjudication.

2.On 2nd July, 1975, the Deputy Director, Directorate of Enforcement, Bombay received an intelligence from the reliable source that you maintained a bank account in the name of A. Samir with the Standard Bank, 10 Clement Street, London. The intelligence further revealed another account in the name of B. Kumar with the same Bank which was being operated by Laxmipat and Kundanmal Chouradias. It was further learnt that you and your brothers have acquired vast 'property in London. It further revealed that you were indulging in illegal foreign exchange transactions for which one Hazarimal and his brother-in-law Mehtabchand Chouradia were agents.

THEefforts made by the officers of the Directorate of Enforcement lo contact you for making further investigations proved futile as you were not found at your known address.

3.On the basis of the information received by the officers of the Directorate of Enforcement, Bombay, that one Dhirubhai of M/s. Panachand Manordas Shah and Company, 305 Yousuf Meherally Road, Bombay, 3 Telephone No. 328760, and resident of flat No. 7 Vipul Cooperative Housing Society B. G. Kher Marg, Bombay-6, Telephone No. 368186 was indulging in unauthorised transfer of foreign exchange and that you had illegally acquired foreign exchange from the said Dhirubhai, the premises of M/s Panachand Manordas Shah and Company, 305 Yusuf Meherally Road, Bombay 3, and the residence of the said Dhirubhai at the aforesaid flat in the Vipul Cooperative Housing Society, Bombay-6 were searched by the officers of the Directorate of Enforcement on 16-7-1975. During the course of the investigations, the statement of Panachand Manordas Shah, father of the said Dhirubhai was recorded on 19-7-1975, in which he stated that you had a foreign bank account in the code name of 'Horse' from which the following amounts were credited to Panachand Manordas Shah's Bank account with the Banque Populaire Swiss in Geneva on the dates mentioned :

Date Amount in Swiss francs 26-5-71 49,975 6-8-73 99,950 8-8-73 30,000 8-8-73 55,000 6-9-73 50,000 6-9-73 50,000

IT is thus evident that you had maintained and operated a bank account abroad without the special or general permission of the Reserve Bank of India.

THEabove grounds are communicated to you in pursuance of clause (5) of Article 22 of the Constitution of India.

THEdetaining authority viz. the Central Govt. considers it to be against the public interest to disclose the source of intellingence referred to in the grounds above.

IFyou wish to make any representation against the order of detention to the Government of India you may do so and address the same to the undersigned and forward 'through the officer-in-charge of the Central Prison, Tihar, New Delhi.

SD/-B. B. Gujral,

ADDITIONALSecretary to the Govt. of India

(4) At the outset Mr. Jethamalani, the learned counsel for the petitioner urged that no proper affidavit has been filed in return to the Rule Nisi with the consequence that the only alternative left is to relase the petitioner as his allegations must be deemed to be accepted, namely that there is no valid order of detention. Now a counter affidavit on behalf of the Union of India has been filed by Shri B. B. Gujral, Additional Secretary to the Government of India Department of Revenue, Ministry of Finance, New Delhi, who has sworn that his affidavit is true to the best of his knowledge derived from the official record. The order of detention dated 30-7-1975 was authenticated in the name of the President by Shri C. T. A. Pillai, Joint Secretary, Govt. of India. The contention of Mr. Jethamalani is that as the detention order had to be passed by the Finance Minister of the Central Government an affidavit in return should have been filed by the Minister concerned or failing him by a person who might have personally dealt with and processed the case and submitted it to the Minister who in the present case can only be Mr. Pillai, Mr. Gujral not having dealt with the file in 1975 his affidavit must be ruled out. As to whether the order of detention was to be passed by the Finance Minister as urged by Mr. Jethamalani or by the Minister for Revenue as urged by M. Lokur, the learned counsel for the Union of India, will be dealt by me separately, there is however no dispute that the order of detention was to be passed by the Minister. It is not disputed by Mr. Jethamalani that neither the then Minister for Finance nor the Minister of Revenue is any longer in the Central Government. Though Mr. Jethamalani at one time suggested that it should have been possible to obtain their affidavit, the same has to be ruled out as a serious contention both on the ground of practicability and on the principle of sound administration. It is apparent that if the Minister who has passed an order of detention is no longer in the government it would be putting too great a strain on the respondent to ask them to obtain an affidavit from a person who is an outsider and to mate available to him the secret government files without which obviously no affidavit could be filed. Such a procedure in contrary to any well known recognised method of running administration. It is true that Mr. Pillai the Joint Secretary is still in service though he is no longer dealing with the matters of detention under COFEPOSA. It is correct that Mr. Pillai was Joint Secretary in charge at the time of passing of the order of detention of the petitioner and Mr. Gujral was not in charge of the subject. But the real fact remains that as per the affidavit of Mr. Gujral, he is a person who is at present dealing with the subject of detention under the Cofeposa and that his affidavit is on the basis of his knowledge derived from the material obtained from the record. It is correct that in Shaik Hani and others V. State of West Bengal : 1974CriLJ606 it was emphasised that normally in response to the Rule Nisi counter affidavit should be sworn in by the authority on whose subjective satisfaction the detention order was passed or if that authority is not available the counter affidavit should be sworn by some responsible officer who dealt with it personally or processed the case in the government secretariat or submitted to the Minister. But this authority has not however held as was contended by Mr. Jetbamalani that if the affidavit was sworn to by a person other than the detaining authority or the officer who dealt and processed it, the counter affidavit filed by another officer has to be ruled out or that the detention has to be held invalid just on this account. No doubt omission to furnish the counter affidavit of the detaining authority may in a few cases where the allegation of mala fide or extraneous circumstances or attributed to the detaining authority lead to serious infirmity. The Supreme Court itself has recognised that where the government considers it convenient that an officer even though not the detaining officer makes an affidavit in return because the whole of the material is available to that concerned officer as the entire work relating to detention order has been given to one officer, the objection by the detenue that such an affidavit does not satisfactorily explain the circumstance leading to the detention cannot be accepted : Vide Janendra Nath Roy v. The State of West Bengal : AIR1972SC2143 . In the present case also the affidavit of Mr. Gujral specifically avers that he is dealing with the subject of detention under COFEPOSA. Mr. Pillai is no longer dealing with it. The Minister who passed the order is not in government. There is no definite allegation of mala fide which had to be answered personally by Mr. Pillai or by the concerned Minister. Apart from the bald allegation that the detention was mala fide or extraneous there is no specific allegation with reference to which it may be said that the same could have been answered specifically only by the person concerned who has dealt with the matter. The allegations made in the petition relate to the invalidity of the dentenion order on various grounds of fact and law. Reply to these allegations can obviously be given by any responsible officer who is dealing with the matter of detention under Cofeposa and who would necessarily have the full record available to him. His affidavit sworn to on the basis of information contained in the official record cannot be brushed aside or held defective or not in accordance with law, merely because he was not the officer dealing with detention at the time of passing of the detention order. It is, not thereforee possible to rule out the affidavit filed by Mr. Gujral and this plea of the petitioner fails.

(5) The connected limb of above argument was that the order of detention was not passed by the Minister of Finance, who alone was competent to pass an order under Section 3 of COFEPOSA. I may note that this argument as such was not put in the petition. The only reference to the detaining authority being the Minister of Finance was a mere narration in para Xlll(m) of the petition. There was, however, no allegation that the authority who is actually the detaining authority never passed the order of detention. As a matter of fact in the petition it has been stated at a number of times that the order was passed by the detaining authority though a grievance was made that the satisfaction of the detaining authority has been arrived at on inadequate and false material and there has been superession of material from the detaining authority, vide ground No. XXVII. Actually it is specifically mentioned in ground No. Xxx that the detention order dated 30-7-1975 was issued by the detaining authority within 30 days of his release by taking shelter of the Emergency provisions under COFEPOSA. Thus the fact of the detention order having not been passed by the then detaining authority was not put into issue and apparently it is for this reason that the counter affidavit is silent on this point. In the rejoinder also no such grievance was specifically made that the order of detention was not passed by the detaining authority. In fact this argument was put forth after Mr. Lokur had stated at the bar that the order of detention was passed by the Minister for Revenue, in the Ministry of Finance as per Busi- ness Rules of the Government. Mr. Jethamalani however insists that the detention order could only be passed by Minister for Finance himself.

INexercise of powers confered by clause (3) of Article 77 of lfie Constitution the President of India has made rules known as the Government of India (Allocation of Business) Rules, 1961. Rule 2 provides that the business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and offices specified in the First Schedule to these Rules. Ministry of Finance figures in item No. 6 of the First Schedule, and clause (iv) of this item is Department of Revenue and Insurance. Rule 3 provides that the distribution of subjects among the departments shall be as specified in the Second Schedule. The said schedule contains under the Ministry of Finance the Department of Revenue at item 'D' at page 38 of the book published by the Cabinet Secretariat (Department of Cabinet Affairs) Government of India (Allocation of Business) Rules, 1961 (Amendment up to October Ii, 1974). Clause No. 17 of item D deals with preventive detention for reasons connected with the conservation of foreign exchange or prevention of smuggling; persons subjected to such detention.

MR.Lokur has filed a compilation giving office order of 5-5-1971 by which the Finance Minister had made arrangement for work in the Ministry. This allocation of work amongst the Minister was continued in 1975 by office order of 11th October, 1974 and continued to be the same in, July, 1975. The said papers have been marked as A & B by me with red ink. A reference to para 3 of Order 5-5-1971 (marked A) shows that the Minister of Revenue and Expenditure was to deal with the work of Department of Revenue and Insurance except insurance. Mr. Jethamalani had however sought to urge that para 2 of the office order of 5-5-1971 which provides for, matters which will be submitted to the Finance Ministry through the minister of Revenue includes at clause (v) 'important matters relating to department of Revenue' and thereforee even if the order of detention was passed by minister of Revenue it had to be submitted to Finance Minister. In my view there is a fallacy in the argument. Para 3 specifically provides that the minister of Revenue would deal with the work of department of Revenue. Para 2 is really an exception and proviso to para 3 and requires only important matters relating to the department of revenue to be submitted to the Finance Minister. There is no specification as to what are important matters. This is left to the discretion of the Minister concerned. But one thing is clear that as per business rules the Minister of Revenue was competent to deal with that work relating to the department of revenue, which includes the matter of detention under COFEPOSA. There is thus no doubt that the Minister of Revenue was competent to deal with and to pass an, order of detention under COFEPOSA. The objection that the detaining authority under Cofeposa has not passed the detention order thereforee must be rejected.

(6) The next contention was that the representation made by the petitioner which he has a Constitutional right under Article 22(5) of the Constitution of India to make was not considered by the government and the detention is, thereforee, illegal. This assertion which was unsupported by any facts in the petition is denied in the counter affidavit filed on 22-7-1977. This point was however elaborated in the rejoinder where the grievance is made that he had submitted three representations on 16-5-1977, 18-5-1977 and 23-5-1977 through his advocate but the same had not been considered by the appropriate authority and that his representation sent on 6th June, 1977 was also not considered. It appears that on 16-5-1977 Mr. Jaisinghani, Advocate on behalf of the petitioner addressed a letter to the Minister of Finance which was in the nature of a protest against the detention of the petitioner. A reference to that letter shows that the advocate was under the misapprehension that grounds on which the petitioner was being detained were the same which were the subject matter of the decision of Bombay High Court dated 1-7-1975 and that is why it was objected that the detention amounted to disrespect of Judicial decision. There was obviously no question of treating this letter as a representation under the Act as the representation can only be with regards to the grounds of detention given to the detenue. Even then the advocate was informed by the Government of India in its letter written on 1-6-1977 pointing out that the grounds of detention struck down by the Bombay High Court were not relied upon in making the impugned order of detention. Another letter of 18-5-1977 was sent by Mr. Jethamalani as a Member of Parliament to the Minister of Finance in which a brief reference was made to the ground of detention earlier and to the order of Bombay High Court and request was made to release the detenue. Another letter of 23-5-1977 was written by Mr. Jethamalani to the Finance Minister in which it was stated that the Advisory Board will no doubt consider the question of detention of the petitioner and making a comment whether the political party should resort to the order of detention committed as it was to the rule of law. Now these letters were replied to by the Finance Minister on 29-6-1977. During the argument Mr. Jethamalani had conceded that the letter of 23-5-1977 may not be treated as representation, obviously because in it the question is not with regard to the grounds of detention but to the larger question whether the detention should be resorted to even in a case of economic offender. He, however, did urge strongly that the letter of 18-5-1977 should have been taken as a representation by the petitioner. I do not agree. Firstly the letter is sent by Mr. Jethamalani specifically as a Member of Parliament. There is a brief reference to the grounds of detention suggesting that they arc not proper grounds for detention. But it must not be overlooked that it was mainly communication from a Member of Parliament to the Minister and evidently was dealt with in that capacity as is clear from the reply of the Finance Minister dated 29-6-1977. Such communication from Members of Parliament are quite common and routine and unless it specifically is sent as a representation had necessarily to be treated as informal and personal communication and dealt with as such. The fact is that even the petitioner did not consider that as a representation under Article 22(5) of the Constitution because he himself made a proper representation from Jail which was received in the Ministry of Finance on 22-6-1977. It is this representation which had to be considered and disposed of under Article 22(5) of the Constitution. The said representation was considered and rejected on 29-7-1977. The delay has been occasioned because the matter had been referred to the Advisory Board on 18-5-1977 and the papers had com back only on 20-7-1977.

(7) Counsel for the petitioner had sought to question the expedition with which the matter had been referred to the Advisory Board and sought to read ulterior motive in it. I am afraid the argument seeks to attribute malice on the part of the authorities when there is no material in support of it. It is in the fitness of things to refer the matter to the Advisory Board at the earliest otherwise the argument might the raised that sending the paper late to the Advisory Board was to prolong the detention wrongfully. There should not be any delay in the matter of consideration of any representation but no hard and fast rules can be laid down as to the measure of time taken by the appropriate authority for consideration vide Jayanarayan Sukul v. State of West Bengal : 1970CriLJ743 . In that case the representation had been received by the government on 23-6-1969 and was rejected on 19-8-1969 after a delay of 58 days, and it was in, that context held that the delay had not been explained.

INDurga Pada Ghos v. State of West Bengal : AIR1972SC2420 . the receipt of representation was 4-1-1972 while disposal was February 12, 1972, and the delay was held inordinate, because the Explanationn of the State government that there was go slow movement by its employees was not accepted as the same had been over by the end of October, 1971.

INNagendra Nath Mondal v. The State of West Bengal : 1972CriLJ482 the representatiton was received on 27-5-1971 but was considered and rejected on 1-7-1971 after a lapse of 34 days. It was however found that on 7th June, 1971 the Government had sent the file in connection with the petitioner's case and his representation to the Advisory Board and as soon as the representation had been returned it considered it and rejected it. Though there was thus a delay of 34 days the Supreme Court held that it was not such as to make the detention invalid and reiterated that each case has to be decided on its facts and there can be no hard and fast rule with regard to the time which government can or should take. Satya Deo Prasad Gupta v. The State of Bihar : 1975CriLJ419 referred to by Mr. Jethamalani is obviously distinguishable. In that case representation was received by the State Government on 6-8-1974 and the Advisory Board after taking into account the representation gave its opinion on 20-8-1974 but the State Government considered it only on 15-11-1974 after a delay of 3 months which was obviously after an inordinate delay and without any satisfactory exclamation.

(8) In the present case it is clear that the only representation the government was under an obligation to consider was the representation sent through jail and that was received in the Ministry of Finance on 22-6-1977. Much earlier to the receipt of representation, the peiitioner's case had been referred to the Advisory Board on 18-5-77 and the representation of the petitioner had also been forwarded to the Advisory Board. Papers from the Advisory Board had been received back in the Ministry on 20-7-1977 and the representation of the petitioner was considered but rejected on 29-7-1977. Thus soon after the receipt of papers from the Advisory Board, the representation was considered. Thus though the importance of disposing of [he representation with the greatest of expedition cannot be over emphasised, in the present case, on the facts it is quite apparent there was no delay in considering the representation of the petitioner. The facts of this case fall with the ratio laid down in Satyn Deo Prasad Gupta's case (Supra). This plea of the petitioner, thereforee, fails.

(9) The next contention was that the detaining authority had relied on material which had not been disclosed to the detenue and, thereforee, the order was bad. Now in the original petition there was no specific allegation which particular material has been made use of by the detaining authority without supplying the same to the detenue. But in the rejoinder it was sought to be spelled out from the reply liled by the respondent wherein in para XIV(d), (e) and (f) the Union government while denying the allegations of the petitioner that lie has no concern with Laxmipat and Kundanmal Chorarias had stated that all of them were brothers and were convicted in a gold smuggling case by a Bombay Court in 1962 which conviction was upheld in a case reported in 0065/1967 : 1968CriLJ1124 . The suggestion given in the rejoinder was that this fact of prosecution had also been the material considered by the detaining authority before passing the detention order. This has been denied in the further affidavit of Mr. Gu)ral dated 1-8-1977 wherein it is specifically averred that no externeous material has been taken into consideration. Indeed it is apparent that reference in the counter affidavit to the fact of the petitioner and his brothers having been convicted is only an answer to the allegation made in the petition that they had nothing to do with each other's business. This was only a factual statement and did not mean that this was one of the material used before passing the detention order. Another material said to have been used. but not communicated was said to be the fact relating to the prosecution pending in Delhi Court in 1968. There is no premises for this argument. In para XIV(I) the petitioner had denied that he was not available at his known address and had stated that he had been attending the courts in Delhi and Ambala, the respondent had denied having any knowledge of petitioner having attended the courts during that period and it was mentioned that he has not been found on his last known address in November even though the notification directing him to appear had been publilised in the Bombay Gazette. I do not see how and on what basis it is alleged that this material was considered by the detaining authority. A reference to these facts was only descriptive and could not be construed to mean that these were the grounds for detention of the petitioner. Another grievance was that the activities of petitioner in Nepal during the period of petitioner's stay after the issue of detention order of 30-7-1975 were placed before the Advisory Board. Mr. Jethamalani did not seriously reply on this because on its own showing the matter was said to relate to the activities subsequent to the detention order of 30-7-1975, and this ground could not obviously have been taken into consideration at the time when the detention order was passed. Moreover the proceedings before the Advisory Board are not the subject matter of challenge.

(10) Mr. Jethamalani next objected to the grounds of detention which he characterised as vague, State and irrelevant. A detenue has a right under Article 22(5) of the Constitution to be furnished with particulars of grounds of his detention sufficient to enable him to make a representation which on being considered gives relief to him. This constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained. Where it has not been done in regard to one of the grounds mentioned, the detention cannot be held to be in accordance with law vide .

(11) Before I deal with each ground I may dispose of Mr. Jethamalani's objection that there were no grounds for detention available to the detaining authority when the said order was passed because a declaration had been given under Section 12(A)(4) of Cofeposa which do not require the grounds for detention to be supplied. This has been specifically denied in the counter affidavit of Mr. Gujral who stated that grounds were available at the time of passing the order. The same were formulated but could not be given to the petitioner. The petitioner was detained on 12-5-1977 and as re quired the grounds were supplied to him on 16-5-1977. It is denied that the grounds were not in existence on the file at the time of passing the order of detention on 30-7-1975. It is stated that the grounds which are already on the file were authenticated by him and communicated to the petitioner as at that time he was in charge of Cofeposa matters. We have thus a direct affidavit of a person who authenticated the grounds which were available at the time when detention order was passed and this objection must be over ruled.

Ishall now deal with each groun,d separately.

(12) Ground No. I

THEobjection is that it relates to the search and seizure of some documents on 9-9-1961. Though the show cause to the petitioner is said to have been issued on 21-8-1974 there is no denying that this incident is too far in the past and cannot constitute a live link. Some effort was made by Mr. Lokur to justify this ground by urging that show cause was of 21-8-1974 but the fact that the incident was of 1961 cannot be ignored, by the mere fact that show cause with regard to that was issued to the petitioner in 1974. The delay in issuing the show cause cannot make this incident of sufficient proximity so as to be available to the detaining authority. The incident is obviously too far in the past. As a matter of fact Mr. Lokur for the respondent had to concede after some valient effort that ground No. I was too far in the past and suffers from infirmity of being stale.

(13) Ground No. 2

THISground split up alleges: (a) that the petitioner maintains the bank account in the name of 'A' Samir with the Standard Bank, 10 Clement Street, London, (b) Another Account in the name of 'B. Kumar' with the same bank is being operated by Laxmipat and Kundanmal Chouradias (c) The petitioner and his brothers had acquired vast property in London, (d) The petitioner was indulging in illegal foreign transaction, for which Hazarimal and his brother-in-law Mehtabchand Chouradia were agents.

THEREis certainly no vagueness with regard to the items mentioned at (a) and (b). The bank is specified and the name under which the account is being operated is also mentioned. With regard to item (c) though the details of property is not mentioned but it is clearly indicated that the properties had been acquired in London. Even if details of the various properties have not been mentioned the ground is specific that the properties were acquired in London. There is no vagueness. The place is specified and it is not as if the petitioner is put to guessing as to where the properties are said to have been acquired. A clear and specific representation can be made by the petitioner. Not giving details of specific property cannot make the ground vague. As regards item (d) the objection of Mr. Jethamalani was that the details of the foreign exchange transactions were not mentioned. Considering the nature of the charge the absence of details in my view does not make the ground vague more especially when specific reference is given that these foreign transactions are through Hazarimal and his brother-in-law Mehtabchand Chouradia, his agent. Thus it is not a vague foreign exchange transaction to which reference is being made but specific ones and only those which are said to have been done through these two persons. I am not suggesting that the detaining authority could not have been more specific. But I am not persuaded that in the absence of further details the ground becomes vague. In this connection it may be remembered that if on reading ground furnished, it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague; vide .

(14) A reference in this connection may be made to Lawrence Joachim Joseph D'Souza v. The State of Bombay : 1956CriLJ935 where after noticing that the detenue does not appear to have felt that the grounds were vague as to hamper him in his right to make a representation and that he did not apply to ask for further particulars (as in the present case) it was held that the fact that he has not made any application for praticular is a circumstance that may be taken into account in deciding whether the grounds can be considered to be vague. Mr. Jethemalani referred to Prabhu Dayal Deorah etc. v. District Magistrate Kamrup and others : 1974CriLJ286 and sought to suggest that the observations in Lawrence Joachim Joseph's case must be held no longer good law. That cannot be considering that the latter is a judgment by live judges while the former is of three judges. That apart, I find that the Prabhu Dayal Deorah's has not taken a different view. This authority has explained that if a ground communicated to the detenue is vague the fact that the detenue could have and but did not ask for further particular is immaterial. They specifically held that that would be relevant only for considering the question whether the grounds are vague or not. All that this authority lays down is that if the grounds are vague they cannot be treated to be specific by the mere fact that the detenue did not ask for any further particular and the infirmity cannot be washed away just like that. But as already held above by me ground No. 2 give sufficient particulars to enable representation to be made and cannot be held to be vague.

(15) Ground No. 3 . This ground may be split up as under :

(A)on information being received that there was illegal acquisition of foreign exchange by the detenue from Dhirubhai the house of M/s. Panachand -Manordas Shall and Company was searched on 16-7-1975; Cb) during the course of investigation the statement of the father of Dhirubhai was recorded on 19-7-1975 (c) the said Panachand Manordas Shah stated that he had a bank account with Banque Populaire Swiss in Geneva and that in the said bank on various dates mentioned there various sums of amount had been credited, (d) that the said amounts are said to have been credited to Shah's account from a foreign bank account of the petitioner in the code name 'Horse' and (e) and that the detenue was thus operating a bank account abroad without the special or general permission of Reserve Bank of India.

NOWit will be seen that there is full specification regarding the dates of search ; the person whose house was searched and the person who made the statement. Particulars are given of the dates when the various sums in Swiss franks were credited in the bank account of Panachand Manordas Shah in a named bank in Geneva. Mr. Jethamalani would however have it that as it has not been alleged nor any particular given about the number account and name of foreign bank where the petitioner is said to have an account the particulars are vague. I cannot agree. The charge is definite that the specific amounts se mentioned on the particular dates' have been credited to the account of Panachand Manordas. This gives clear indication with full details enabling the detenue to make his representation with regard to each item. It must be remembered that maintaining even a single foreign bank account without permission is illegal. Details of credit in Shah's account said to be from the detenue foreign bank account are supplied. As a matter of fact even the code name 'Horse' is also particularised. Surely knowing the dates and amounts it is the easiest thing for the petitioner to make his representation. If he wants to deny that these deposits are not by him, he has the dates and amounts told to him and can give his Explanationn. Real thing is the charge of depositing foreign exchange in Shah's account. Nothing been withheld from him. The petitioner knows the dales and amounts and it is certainly open to him to make an effective representation explaining or repudiating the allegations. The grievance was also made that though it has been alleged that the petitioner had illegally acquired foreign exchange from the said Dhirubhai but no details have been given. I am afraid this is splitting up the ground. The allegation that the information was received that the petitioner was indulging in. unauthorised transfer of foreign exchange and that he had acquired illegally foreign exchange from Dhirubhai is relatable to the statement of the father of Dhirubhai in which the details of the foreign exchange transactions have been mentioned. It may be noticed that details of an amount of over 334925 Swiss franks having been credited within a period of just over two years on specific dates are given. The grievance that no particulars of acquisition of foieign exchange have been mentioned is without substance. Mr. Jethamalani had also raised an argument that the detaining authority could not have acted upon the statement made by Panachand Manordas because the same may have been made to exculpate himself and relied on the well known rule of evidence that the uncorroborated testimony of an accomplice should not be accepted for conviction. The first fallacy of this argument is that the statement of Panachand Manordas does not say that all the credits in his accounts are that of the detenue or that he was only acting as Benami lor the detenue. The slaleinent as given in the grounds only mentions a specific number of entries as being relatable to the detenue. It is not thereforee as if the said Panachand Manordas is completely absolving himself from the fact of maintaining of foreign accounr in his name. Moreover the argument of Mr. Jethamalani really amounts to asking this court to make objective assessment of the material on record with a view to objectively satisfying itself whether the detention order should have been passed. Now this is impermissible in law. It is well settled that it is the subjective satisfaction of the detaining authority as regards those matters which constitute the foundation for the exercise of the powers of detention and the court cannot be invited to consider the propriety or sufficiency of the ground on which the satisfaction of the detaining authority is based, vide Khudiram Da? V. The State of West Bengal and others : [1975]2SCR832 Similarly the argument to invoke the rule of prudence applicable to the case of the accomplice in criminal trial cannot be invoked in the case of preventive detention because the power of detention is clearly a preventive mea- sure and does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community and must necessarily proceed in all eases to some extent on suspicion or anticipation as distinct from proof, vide Khudiram's case. Of course if action has been taken by the detaining authority on the basis of material on which no reasonable person could have acted, the action of the detaining authority would be bad. But to raise an argument whether the statement made by Shah as mentioned in ground No. 3 is sufficient for the detaining authority to act is an argument relating to the adequacy or sufficiency of the material for the action to be taken on subjective satisfaction by the detaining authority and is not an argument on the absence of any material at all and as such the detaining authority could not have acted. No objection thereforee can be raised to ground No. 3 being vague or irrelevant.

(16) I thus find that both the grounds 2 and 3 are not vague and give sufficient patriculars to safeguard the constitutional requirement of Article 22(5) of the Constitution. Ground No. 1 of course is held to be State and one which could not have been taken into account. The courts have been taking the view that constitutional requirement must be satisfied with respect to each of the grounds on which a person is detained and where it is not done the detention is held bad vide This principle has been accepted because the courts have felt that 'if some out of them are found to be non-existent or irrelevant the court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the court for the subjective satisfaction of the statutory authority,' . It was also held in that case applying these principles however the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfer with such orders. To similar effect are : 1974CriLJ1304 . Had the position of law continued the petitioner might have been entitled to ask for relief on the ground that as one ground is stale he has been denied his constitutional right of representation and thereforee the detention order is bad. But a change of law has occurred by virtue of Section 5A of Cofeposa which provides that where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are :

(I)vague

(II)non existent

(III)not relevant

(IV)not connected or not proximately connected with such person, or

(V)invalid for any other reason whatsoever.

ITwill be seen that Section 5(a) is meant to cover that eventuality which was indicated in the decisions quoted above that if one ground was vague it is not possible to know whether the detaining authority would have passed the order of detention on the exclusion of those grounds. The result is that even if one or more grounds are held to be vague or non existent the order would none-theless be upheld on the remaining grounds which are not held to be vague or irrelevant. The result is that the court in such a case has only to consider the grounds which it holds not vague and to see whether the detaining authority could have passed the order of detention on the ground so remaining after ignoring the grounds which are held to be vague. No argument was addressed to me on the invalidity of Section 5A of the Cofeposa as at the time of admission right to challenge the virus of Cofeposa at appropriate time has been specifically reserved and the petition has been admitted subject to this reservation. I have, thereforee, proceeded on the basis that Section 5A is a valid piece of legislation. In spite of this reservation an argument was sought to be made that Section 5A being statutory legislation was liable to give way because of the constitutional requirement of Article 22(5) of the Constitution. This argument naturally proceeds on the wrong assumption that Section 5A had not been incorporated in the Ninth Schedule of the Constitution. Now Cofeposa received the assent of the President of India on 13-12-1974 Section 5A of Cofeposa inserted by means of Parliament Act 35 of 1975 which though received the assent of President on 1-8-1975 was deemed to have come into force on 1-7-1975. The Constitution (Thirty ninth Amendment) Act, 1975 was enacted on 10-8-1975 and by Section 5 entries 87 to 124 were added to Ninth Schedule to the Constitution. Entry No. 104 mentions COFEPOSA. The argument of the counsel for the petitioner was that as entry No. 104 mentions only Cofeposa without referring to Parliament Act 35 of 1975 Section 5A should be deemed not to have been included in the Ninth Schedule to the Constitution even though Cofeposa should be deemed to have been incorporated. The argument is unacceptable. Act 35 of 1975 incorporates Section 5A to Act 52 of 1974 and thereforee entry 104 in Ninth Schedule must mean Cofeposa as amended up to 10-8-75 when the Constitution (Thirty ninth Amendment) Act was passed. And as Section 5A was part of Cofeposa with effect from 1-7-1975 there is no merit in the argument that Section 5A was not included in the Ninth Schedule. Reference was made by the counsel to entry 87 where apart from mentioning Representation of People Act, 1951, Central Act 43 of 1951, Central Act 58 oF 1974 and 40 or 1975 are also mentioned and the argument is that if Parliaiment Act 35 of 1975 (which incorporated Section 5A in COFEPOSA) was to be included in Ninth Schedule, it should also have been separately mentioned. The argument has no merit. When an Act is incorporated in Ninth Schedule it is included inclusive of all amendments up to that time. Merely because entry 87 has mentioned amendments Acts superfluously does not mean that amendment incorporated in Acts earlier to inclusion of the Act in Ninth Schedule in other entries are not automatically included. This would be contrary to air sound canon of interpretation. To accept this argument would lead to the strange argument that entry 88 namely. The Industries (Development and Regulation) Act, 1951 (Central Act 65 of 1951) would inelude the original Act without the vital amendments brought in the Act subsequently. Thus the whole of Chapter Iiia dealing with 'Direct Management or Control of Industrial undertakings by Central Government in Certain Cases' and Chapter Iiib dealing with 'Control of Supply, Distribution, Price, etc. of Certain Articles' which arc vital and pulsating provisions to this Act would stand excluded from Ninth Schedule. It needs no argument to visualise that this result world have been furthest from the mind of the legislature. On this argument in the petitioner the very purpose of entry 88 will be frustrated because the important features to Act 65 of 1951 have been brought by amendments. It must thereforee be held that Section 5A is also included in Ninth Schedule to the Constitution.

(17) As said before the virus of Section 5A of Cofeposa was not challenged. As such even on my finding that ground No. 1 is stale, the detention cannot be quashed because I have held ground Nos. 2 and 3 to be proper and valid, and thereforee the detaining authority could have been validly satisfied in ordering detention of the petitioner on these grounds. In the circumstances there is no infirmity in the impugned order of detention, and the writ petition thereforee, must fail.

(18) Mr. Jethamalani had also raised a general question that the petitioner had been detained for 10 months before he was released by the Bombay High Court and the maximum period of detention being 12 months it does not seem proper that he should be the subject matter of another detention order. I am afraid this argument which raises a matter of government policy must be addressed to a forum other than this court which is concerned only with the validity or otherwise of the detention order. For all its solicitude for the liberty of the citizen and the upholding of rule of law the power of this court could obviously be exercised if the impugned order were to be found infirm or invalid. The propriety of an order or the expediency of it is immune from the scrutiny of this court.

(19) As already held, the detention order having been found to be valid, the writ petition must and is hereby dismissed.


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