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D. John Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ471
AppellantD. John
RespondentState of Kerala and anr.
Cases ReferredState of Gujarat v. Adam Kasam
Excerpt:
.....in various places. it is argued that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order is vitiated in this case by the failure to consider certain facts which are contended to be material and vital. in support of this submission the counsel for the petitioner placed strong reliance on the decision of the supreme court in ashadevi v. 206 of cri lj) :the principle that could be clearly deduced from the above observations (reference is to a quotation from sk. after all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute..........take these grounds of challenge one by one.3. there is no allegation of any mala fides against the detaining authority namely the government. the allegation is only against the customs authorities who supplied materials to the detaining authority for passing the order and the counsel for the petitioner did not substantiate the challenge on this ground.4. but he contended very strongly that there is unexplained delay. the detenu made a representation against his detention on 3-9-1981 and the same was disposed of only on 25-9-1981, that is, the detaining authority took 22 days to consider and pass orders. in support of his contention he relied on three decisions of the supreme court reported as atiar rahman v. state of west bengal : air1972sc2529 . pabitra n. rana v. union of india :.....
Judgment:

G. Viswanatha Iyer, J.

1. This is a petition under Article 226 of the Constitution for a writ of habeas corpus. By a detention order passed by the Government On 13-8-1981 Under Section 3(1)) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA') the detenu Dharmakannu John was directed to be detained and the order was executed by the C. I. of Police, Vishinjam by apprehend'ng the petitioner on 19-8-1981 and detaining him in the Central prison, Trivandrum. The order Ext. P-l stated that he is being detained with a view to preventing him from smuggling goods and engaging in transporting smuggled goods and dealing in smuggled goods. The grounds of detention were served on him on 20-8-1981. Briefly stated the grounds disclosed the following material against the detenu; Early in 1979 the Collectorate of Customs and Central Excise had intelligence that the detenu and his brother D. Joseph were indulging in smuggling goods from Sri Lanka to India by mechanised boats and were disposing of the smuggled articles in Tamil Nadu and South Kerala. In February 1981 following a specific informations to the effect that a landing of contraband goods had taken place near Pozhiyoor on the Tamil Nadu-Kerala border, the officers of the Customs Preventive and Intelligence Unit, Trivandrum went into action and in a period of three weeks starting from 7-2-81 effected seizure of textiles, electronic goods and other miscellaneous items of foreign origin from various persons at Kaliyjkavila and Trivandrum. The statements recorded from connected persons as a sequel to the seizure clearly established that the detenu and his brother Joseph were the brains behind the landing of contraband goods at pozhiyoor and that the detenu had also played an active role in arranging the concealment, storage and disposal of smuggled goods in various places. So the detenu, a Head Constable in the Armed Reserve Stationed at Trivandrum Air port was summoned for detailed interrogation. On 10-2-1981 a summons was issued to the detenu through the Circle Inspector Airport Security and he was brought to the Central Excise Division Office at 1.00 P. M. and was interrogated from 3 P.M. to 7 P. M. The persons from whom the goods were seized and the goods were paraded before Mr. John. Those persons identified the detenu as the person who used to go to their house or business place with radio tape recorders, textiles etc. and collect money. Though the detenu denied the transaction during interrogations, durng a casual talk with the officers in the early hours of 11-2-1981 he disclosed his dealings in smuggled goods and also the names of two other persons, Palayam Peerukannu and Tahe of Vallakadavu to whom he supplied the smuggled goods. Thereafter those persons were found out and questioned. They also mentioned the name of the detenu as the person who gave them the smuggled goods and that the detenu had told them of the search and seizure of goods by the Customs Officers and of the need to conceal the goods. The officers wanted to further interrogate the detenu on 11-2-1981 but could not as the detenu on seeing the officers hae successfully unearthed the nefarious activities when he was alone in the room broke a glass bottle and hurt himself to escape fur their questioning on that day. He was then hospitalised. After he was discharged from the hospital a fresh summons was issued by the Superintendent, Customs Preventive directing him to appear on 30-3-1981 for further interrogation. But the detenu did not appear but filed a medical certificate and sought exemption from appearance, Another summons dated 30-5-1981 directing him to appear in the Central Excise Divisional Office on 5-6-1981 had been issued but so far he did not appear.

2. Counsel for the detenu did not dispute that the aforesaid material d s-closed in the grounds was prima facie sufficient to show the detenu's involvement in the racket of smuggling goods into India and transporting and dealing in them, but he challenged the detention order on the ground that procedural safeguards had not been followed vitiating the requisite satisfaction on the part of the detaning authority Under Section 3(1). He also challenged the detention on the ground that there was unexplained delay in considering his representation against the detention order and the action of the customs authorities was vitiated by mala fides. We will take these grounds of challenge one by one.

3. There is no allegation of any mala fides against the detaining authority namely the Government. The allegation is only against the Customs Authorities who supplied materials to the detaining authority for passing the order and the counsel for the petitioner did not substantiate the challenge on this ground.

4. But he contended very strongly that there is unexplained delay. The detenu made a representation against his detention on 3-9-1981 and the same was disposed of only on 25-9-1981, that is, the detaining authority took 22 days to consider and pass orders. In support of his contention he relied on three decisions of the Supreme Court reported as Atiar Rahman v. State of West Bengal : AIR1972SC2529 . Pabitra N. Rana v. Union of India : [1980]2SCR869 and Saleh Mohammed v. Union of India : 1980CriLJ1496 . According to the State the period of 22 days between the date of representation and the order rejecting it has been satisfactorily explained and in support relied on Masuma v. State of Maharashtra : [1982]1SCR288 and L. M. S. Ummu Saleema v. B. B. Gujaral : [1981]3SCR647 . On carefully considering these decisions it is clear that the underlying principle adopted by the Supreme Court in such matters is that as the order of detention deprives the personal liberty unless the detaining authority satisfies the court that it has not been negligent and that it has taken prompt action and showed an anxiety to deal with the representation expeditiously, there will be infirmity in the continued detention of the detenu. What is contemplated is not a standstill of the entire machinery of the Government until the representation is disposed of one way or other. There is a constitutional duty to the detenu and that should be promptly attended. There is no hard and fast rule that the representation should be disposed of within a fixed period of time. There should not be an unreasonable and unexplained delay. Going by this principle if the facts in this case are examined there is no unreasonable delay in considering the representation. The representation was received by the Secretary to Government on 3-9-1981. From the counter-affidavits filed by the State and the second defendant the following facts are seen: On perusing the representation the Secretary felt that the Customs Collector's remarks on the various allegations is necessary and so the representation was forwarded to him through a special messenger on 7-9-1981. The Collector was at Trivandrum in connection with some other office matter. He received it and as the file relating to this is at Cochin he brought the representation to Cochin and perusing the office files felt that comments of the Assistant Collector, Customs preventive, para by para was necessary. So he forwarded the representation by a special messenger to the second respondent (Assistant Collector, Customs Preventive) and the same was delivered to him on 11-9-1981. September 10 to 13 were Onam Holidays for the office. The relevant file was being attended to by the investigating officer B. Ravindran. He was on casual leave on the 14th. On the 15th report on the various points raised in the representation was prepared and the same was sent through a special messenger to the Collector at Cochin on the 16th. The Collector forwarded the remarks to the Government on the 17th and the Secretary to Government received it on the 18th. Then the representation and the remarks were considered by the Government and finding that there is no merit in the representation the same was rejected on 25-9-1981 and communicated to the detenu on the I same day. We are stisfied that there I is no unreasonable delay in considering and passing orders on the representation. So there is no infirmity in the detention of the petitioner on the ground of unexplained delay.

5. The main point of attack on the detention order is that material and vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or other were not placed for consideration or considered by the detaining authority before issuing the detention order. It is argued that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order is vitiated in this case by the failure to consider certain facts which are contended to be material and vital. According to the petitioner and it is not disputed that the facts to pass the detention order were furnished by the Collector of Customs. In the counter-affidavit it is mentioned that the grounds for detention were furnished by the Collector as per his report dated 10-7-1981. Subsequent to 5-6-1981 the day the detenu was required to appear before the Central Excise Office, Trivandrum, he moved Criminal M. P. 256 of 1981, a petition for anticipatory bail before the Sessions Court, the second respondent had been made a party to it, the latter had filed a counter-affidavit Ext, P-8 on 1-7-1981 resisting the application, that on 13-7-1981 by Ext. P-4 order bail was granted by the Sessions Court and thereafter he appeared before the Customs Authorities accompanied by an advocate and gave a statement on 24-7-1981 and 3-8-1981 denying the correctness of all accusations made against him by the various persons from whom goods were seized. He also denied that he ever admitted on 11-2-1981 to the Customs Official that he had complicity in the smuggling of goods and dealing in them. His combined statement is produced as Ext, p-6. These facts, according to the petitioner, were not placed before and considered by the Government before passing the detention order Ext. p-1 on 13-8-1981. These facts are stated to be material and vital. In support of this submission the counsel for the petitioner placed strong reliance on the decision of the Supreme Court in Ashadevi v. K. Shivraj AIR 1979 SC 447 : 1979 Cri LJ 203. In this case in passing the detention order the detaining authority based its decision on the detenu's confessional statement made earlier before the Customs Officers. The said confessional statements were subsequently retracted by the detenu at the first available opportunity while he was in judicial custody. This fact was not placed before nor considered by the detaining authority in passing the order. In such circumstances the Supreme Court observed at page 450 (of AIR) : (at p. 206 of Cri LJ) :-

The principle that could be clearly deduced from the above observations (reference is to a quotation from Sk. Nizamuddin v. State of West Bengal : 1975CriLJ12 is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaning authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiate the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.

Again at page 451 (of AIR) : (at p. 207 of Cri LJ) the Supreme Court observed,-

Further, in passing the detention order the detaining authority obviously based its decision on the detenu's confessional statement of December 13, and 14, 1977 and, therefore, it was obligatory upon the Customs Officers to report the retraction of those statements by the detenu on December 22, 1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Questions whether the confessional statements recorded on Dec. 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.

According to the petitioner's counsel in this case two facts which appear to have weighed with the detaining authority are the alleged admission of the detenu on 11-2-1981 (Ext. p-5) that he had supplied smuggled goods to Palayam Peeru-kannu and Taha of Vallakadavu and secondly in spite of repeated summons the detenu did not appear before the Customs Officers after 30-3-1981. This alleged admission was denied by the petitioner in has signed statement Ext. P-6, on 24-7-1981 and 3-8-1981 on appearing before the Customs Officers after obtaining anticipatory bail from the Sessions Court. But these facts were not brought to the notice of the detaining authority before passing the detention order on 13-8-1981, Though it may at first blush appear that the argument of the counsel has some force, we are not satisfied that the statement Ext, P-6 is a material or vital fact in the context of the number of other facts mentioned in the grounds Ext, p-3 served on the petitioner, in the grounds served the following facts were mentioned. Smuggled goods have been seized from various persons mentioned in the grounds, all these persons asserted that it was the petitioner who supplied the goods to them and received the price. They were paraded before the detenu on 10-2-1981 and all of them identified him as the person who supplied the goods, the petitioner's brother has a mechanised boat apparently used for fishing, but misused for smuggling, the distribution and dealing took place between 4-2-1981 and 9-2-1981 and the petitioner availed of leave during this period, and he avoided appearing before the Customs Officers on 30-3-1981 in spite of summons. All these are relevant and vital facts which will influence any reasonable man to hold that he has reason t0 believe that the petitioner is engaging in the nefarious activities. While so the fact that the petitioner moved for and obtained an anticipatory bail (we are not shown how Section 438 of the Cr. P. C, applies for a bailable offence) that he assisted by an advocate appeared thereafter before the Customs authorities and gave a statement denying every allegations against him does not appear to be any vital fact to be hurriedly placed before the detaining authority, Ashadevi v. Shivraj AIR 1979 SC 447 : 1979 Cri LJ 203 the crucial and vital fact relied on by the detaninfl authority was the confessional statement. The facts which would show that the confessional statement was obtained by duress and the fact of his retraction at the earliest opportunity were not placed before the detaining authority and that was held to vitiate the order. Such is not the case here. The facts in this case show that there was sufficient material disclosed in the grounds to have a reasonable belief agamst the petit one. The court can interfere with an order based on a subjective satisfaction only if there is no material on which any reasonable man can be satisfied. The principle that apples to the facts of this case is that laid down in State of Gujarat v. Adam Kasam : 1981CriLJ1686 . The Supreme Court observed thus at page 2007, para 5-

The High Court has misdirected itself to its jurisdiction to inquire into the order of detention by an authority. The High Court, accepfng the contention of the counsel of the detenu, before it has held that there was no material on record to prove knowledge of the detenu with the contraband goods in the vehicle. By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond a reasonable doubt into the law of detention. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court, It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material.

Hence we hold that there is no infirmity in the detention order.

6. Further there is another point which is relevant in considering whether the writ prayed for may be issued. The petitioner in his representation Ext. P-7 placed before the detaining authority all the facts now urged. The detainng authority considered them but refused to cancel the detention order. The rejection order was communicated to the petitioner on 25-9-1981 and he filed this writ in this Court on 2R-9-1981. At the time notice on the writ was issued from this Court the earlier detention order has already been looked into in the light of the facts placed by the petitioner and affirmed by the detaining author by. It cannot thereafter be said that the petitioner has made out a case for a writ of habeas corpus. It is also submitted by the parties that pending this writ petition the advisory Board has also on considering all the materials recommended for continuing the petitioner's detent' on for one year. No doubt this is not material in considering whether the petitioner has made out a case for the issue of the writ. We are mentioning this only for completeness of narration of facts till now.

In the result this petition is dismissed.

The petitioner's counsel asks for leave to appeal to the Supreme Court. We are not satisfied that any question of law of general importance which in our opinion calls for decision of the Supreme Court arises in this case. Leave is refused.


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