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indravijaysinhji Monubha Rana Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1978CriLJ1199
Appellantindravijaysinhji Monubha Rana
RespondentState of Gujarat and ors.
Cases Referred(vide Vithoba Savanna Bhandari v. The Union of India
Excerpt:
.....authority to detain a person concerned for a period of more than one year which is the maximum period of detention under the cofeposa, two conditions are required to be satisfied, namely, (1) the central government or the specially empowered officer of the central government must be satisfied about the prohibited activities within the area highly vulnerable to smuggling and (2) making of declaration accordingly within five weeks of the detention of such a person. according to the learned advocate for the detenu, if the central government or its specially empowered officer is not satisfied about the fact of the detenu carrying on the prohibited activities within the highly vulnerable area to the smuggling, he cannot make the declaration so as to empower the detaining authority to..........authority to detain a person concerned for a period of more than one year which is the maximum period of detention under the cofeposa, two conditions are required to be satisfied, namely, (1) the central government or the specially empowered officer of the central government must be satisfied about the prohibited activities within the area highly vulnerable to smuggling and (2) making of declaration accordingly within five weeks of the detention of such a person. according to the learned advocate for the detenu, if the central government or its specially empowered officer is not satisfied about the fact of the detenu carrying on the prohibited activities within the highly vulnerable area to the smuggling, he cannot make the declaration so as to empower the detaining authority to.....
Judgment:

B.K. Mehta, J.

1. By this petition under Article 226 of the Constitution of India the brother of the detenu one Mahavirsinh Manubha Rana has challenged the order of detention of December 15, 1976 purported to have been made by respondent No. 2 herein under Section 8 of the Conservation of Foreign Exchange and Prevention ot Smuggling Activities Act, 1974 (hereinafter known as 'COFEPOSA') with a view to preventing him from engaging in keeping smuggled goods. A few facts need be noticed in order to understand the challenge made in this petition,

By an order of February 26, 1976. the brother of the petitioner was detained under Section 3 of the COFEPOSA with a view to prevent him from engaging in keeping the smuggled goods. This order was revoked by the State Government by its order of December 15, 1976 and on the same day the impugned order was made. It is an admitted position that the grounds on which the revoked order of detention was made were the same on which the impugned order has been passed. The grounds, broadly stated, are as under:

On 19/20th January, 1976 on information, the Customs Officers of the Ahmedabad Division searched the godown of one transport company doing the business under the name and style of Metro Transport Corporation having its office at 8/10 Odhav Road, Ahmedabad, and seized 8 packages containing synthetic fabrics of foreign origin of the value of Rs. 1,02,900/- under reasonable belief that they were smuggled goods and. therefore, liable to confiscation under the Customs Act, 1962. These packages were found being concealed under a heap of grass bundles containing crockery. No markings regarding the consignor, consignee and the description of the goods were found on these packages, which were seized under a Panchnama in presence of one of the partners of the said Transport Corporation one Babubhai Patel and the clerk incharge of the godown one Amritlal Vithaldas Patel. This Amritlal Patel stated that the said packages were brought in the godown in the morning of January 19, 1976 in a hand-lorry without any document. The hand-lorry man informed Amritlal that the packages were booked by his employer who was following him. In further statement which was recorded on January 22. 1976, Amritlal stated that his previous statement was not correct and that the packages were brought to the godown by one Keshuji who happened to be in the employment of the said Transport Corporation and Keshuji had informed them that the papers in respect of the goods would be prepared by the office of the Corporation, and Keshuji was instructed, if any inquiry is made by the Government Officials in connection with the packages, to plead his ignorance about the identity of the man who brought the goods. In the course of the further investigation, the statement of Amritlal was corroborated by Babubhai Patel and Razakbhai Latifbhai Godil who happened to be partners in the said Transport Corporation and one Ramswarup Jaymangal Tivari who was a Mukadam in the service of the Transport Corporation aforesaid. As a result of interrogation of Keshuji, the Customs Officers were taken to one orchard situated on Bavla-Dholka road from where these 8 packages were loaded in the lorry and brought to the godown of the Transport Corporation at Odhav. Keshuji identified one Uka Mohan who was said to be present at the time when these packages were loaded in the lorry from the orchard. This orchard was also searched by the Customs Officers on 21/22nd January, 1976 and in course of the search they seized four labels reading 'Nylon M-1470 made in Japan' wrapped in a plastic bag from a cupboard in one of the rooms of the Vadi (orchard). These labels tallied with the labels found on the synthetic fabrics recovered from the packages seized from the godown of the Transport Corporation. Uka Mohan as well as one Kana Jiva were also interrogated and they admitted in their statements recorded on January 27, 1976 that they were employed by the detenu in the orchard and were responsible for looking after the orchard in the absence of the detenu. It was further disclosed from their statements that the detenu and his family stayed in the said orchard but had gone to village Sauka about 6 to 7 days before their statements were recorded to attend the marriage of his brother. They also stated that 27 packages concealed below about 100 cement like bags were brought and were loaded from the orchard in presence of the detenu and one Babubhai Patel had contacted him for this purpose on the day earlier to the receipt of : the goods in the orchard. Uka Mohan has further stated that out of 27 packages 8 were removed in truck in the noon of January 18, 1976. He also identified Keshuji as the person who had come with the truck in the noon on January, 18, 1976 for loading the said 8 packages. In the course of follow-up inquiry at Bombay, it was disclosed from the statements of Humayu and Mohmad Ismail Jan Mohmad that these 30 packages of crank shafts and 27 packages of contraband synthetic fabrics were brought in the orchard of the detenu and concealed under the cement like bags of chalk powder and deposited in the orchard of the detenu in his presence with his full knowledge and connivance. On these grounds, the detaining authority, respondent No. 2, was satisfied that the detenu should be detained so as to prevent him from engaging himself in future in keeping the smuggled goods. This order is sought to be challenged on the following grounds at the time of hearing by Mr. C, T. Daru, learned Advocate, for the petitioner:

3. At this stage, Mr. Daru raised a further contention about the order of detention being vitiated as the declaration under Section 9(1) of the COFEPOSA which empowers the State Government to detain a detenu affected by such a declaration beyond a period of one year was ultra vires the Act inasmuch as the declaration was not communicated to the detenu within the prescribed time under Section 9(1) of the COFEPOSA. Mr. Daru has not Joined the Union Government as a party to this petition and in absence of the Union Government being joined as party to this petition, it was not possible for us to deal with this contention. Mr. Daru, therefore, prayed that he may be permitted to amend his petition by joining the Union Government as a party-respondent. Though it was at the fag-end of this judgment that this prayer had been made, we have permitted Mr. Daru to join the Union Government as a party so that there may not be any injustice being caused to his client. This matter was therefore required to be adjourned and after the Union Government was made a party to the petition the cause-title was amended accordingly.

4. Mr. K. G. Vakharia, the Standing Counsel for the Government of India waived his notice and prayed for some time for filing the affidavit-in-reply on behalf of the Union Government. On behalf of the Union Government, the affidavit-in-reply of one A. C. Amin who happens to be the Superintendent, Customs and Central Excise, Ahmedabad has been placed on the record of this petition along with certain annexures to show that the declaration as required under Section 9(1) of the COFEPOSA was not only made but communicated to the detenu within the prescribed period. We permitted Mr. Daru to make his oral sub-missions in support of the contention which he has raised. The argument of Mr. Daru runs like this : The declaration under Section 9(1) of the COFEPOSA about the satisfaction of the Central Government or any officer of the Central Government specially empowered for purposes of the said section that the detenu carries on the prohibited activities within the highly vulnerable area as defined in the Explanation has got to be made and communicated to the detenu within five weeks of the detention of such person and if such a declaration is made within the prescribed period it would expose the detenu to certain consequences, namely, of his liability for being detained for a period of more than one year which is otherwise the maximum period as prescribed in the COFEPOSA. The only protection to the detenu from these consequences is the procedural safeguard prescribed under the said Act. If this procedural safeguard is not satisfied by the authorities, their acts would be beyond the powers given to them under the respective Acts. The Courts have always ruled in favour of detenu when this minimum of procedural safeguard is violated. In the very nature of things, the declaration to be effected under Section 9(1) postulates that it should not only be made within the prescribed period of time of five weeks from the date of the detention order, but it should necessarily be communicated to the detenu concerned and if it is found on scrutiny of the record that the declaration is either not made within five weeks or for that matter it is not communicated to the detenu within the stipulated period, the declaration must be held to be ultra vires the provisions ot Section 9(1). Our attention was also invited to the averments made in the respective affidavits of the authorities. It has been averred and asserted on behalf of the detenu that the declaration in question under Section 9(1) was served on the detenu on the 87th day from the date of his detention and the admission of the detaining authority in his affidavit-in-reply to the effect that the averment of the detenu was correct However, so far as the affidavit-in-reply of the Union Government is concerned, and which we think is more appropriate in this connection to be referred to, the declaration was made on 15th January, 1977 and communicated to the Collector of Central Excise, Ahmedabad, on the same day with a request to serve the declaration on the respective detenus immediately on the receipt of the declaration. The Collector of Central Excise, Ahmedabad, accordingly forwarded the declaration, in respect of about nine detenus including the present detenu with which we are concerned in this petition under the cover of his letter of January 18, 1977 addressed to the Superintendent of Central Prison, Sabarmati at Ahmedabad with a request that the declaration be served on the detenus immediately on receipt of the same and to return the duplicate copy bearing the signature of the respective detenus as a token of the acknowledgment of the service of the declaration by return of post. Now, we have nothing on record to show nor any aver-, meats in the affidavit in reply to suggest as to on which date the declaration in question was served on the detenu before us. It was, therefore, urged that we should proceed on the admission of the detaining authority that the declaration in question was served on the 37th day of the order of detention.

5. The next question, which therefore arises is on the assumption that the declaration was not communicated to the detenu before us within the prescribed period of 35 days, as stated in Section 9(1) COFEPOSA. Section 9(1), so far as relevant for purposes of this petition, provides as under:

9. (1) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of December, 1975 may be detained without obtaining, in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing Or keeping smuggled goods and the Central Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government specially empowered for the purposes of this section by that Government, is satisfied that such person-

(i) Smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or

(ii) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; Or

(iii) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling

and makes a declaration to that effect within five weeks of the detention of such person.

Explanation - In this sub-section, 'area highly vulnerable to smuggling means -

(i).... (ii).... (iii)....

A subsidiary contention was also advanced by Mr. Dani on behalf of the detenu that in order that a declaration is validly and effectively made for purposes of empowering the detaining authority to detain a person concerned for a period of more than one year which is the maximum period of detention under the COFEPOSA, two conditions are required to be satisfied, namely, (1) the Central Government or the specially empowered officer of the Central Government must be satisfied about the prohibited activities within the area highly vulnerable to smuggling and (2) making of declaration accordingly within five weeks of the detention of such a person. According to the learned Advocate for the detenu, if the Central Government or its specially empowered officer is not satisfied about the fact of the detenu carrying on the prohibited activities within the highly vulnerable area to the smuggling, he cannot make the declaration so as to empower the detaining authority to detain that person concerned for a period of more than one year. Since we are not concerned with this aspect of the question in this petition, we do not intend to express any opinion on this contention. The real question which arises is, whether the declaration to be made under Section 9(1) about the activities of the detenu in a highly vulnerable area to the smuggling should necessarily be communicated to the detenu concerned within five weeks of his detention, and if there is any delay in communication beyond the period prescribed, what would be its consequences. Our attention has been invited to the Dictionary meaning of the word 'declaration' and also to a decision of a Single Judge of the Bombay High Court explaining what would be the meaning of the word 'declaration' under Section 75 (1) of the Indian Railways Act. The dictionary meaning of word 'declaration' is 'the action of making clear; the setting forth of a topic; the action of setting forth or announcing openly, explicitly, or formally; positive statement or assertion' (Vide Shorter Oxford English Dictionary, third edition page 464). We do not think that any reported decision in connection with the meaning of word 'declaration' as used in the different Acts would be of any assistance conclusively to the question with which we are concerned in this petition since the meaning to be ascribed to the word 'Declaration' would depend on the context in which it has been adopted by the Legislature. The decision of the Bombay High Court construing word 'declaration', as to mean communication to the person concerned to whom the declaration is to be made, is in the context of Section 75 (1) of the Indian Railways Act where the consignee was under obligation to declare the nature and the value of the goods for purposes of claiming special rates of tariff. In that context the learned Single Judge of the Bombay High Court interpreted the word 'declaration' as to mean that the consignee is under obligation to declare the nature and the value of the goods to the Railway Administration and unless that is done, the consignee would not be entitled as a matter of right to claim the benefit of special rates of tariff (vide Vithoba Savanna Bhandari v. The Union of India : (1957)59BOMLR117 .

6. We have, therefore, to find out whether [the word 'declaration' here postulates either in the scheme of the Act or having regard to the larger context of the right of making representation by the detenu that it should necessarily be communicated to the detenu within five weeks of his detention. Our answer to the question is in the negative obviously for the following reasons:

In the first place, there is a clear dichotomy adopted by the Legislature in the Act in the various provisions and especially in Sections 3 and 12-A(2) in the matter of declaration as well as communication of different acts and orders to be performed and made by the various authorities either at the time of detention or subsequent thereto. Section 3(3) of the COFEPOSA requires that for purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. Similarly Section 12A makes special provisions for dealing with emergency. Sub-section (2) of Section 12A provides as under:

(2) When making an order of detention under this Act against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act 1975, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in Sub-section (1) have been issued (hereafter in this section referred to as the emergency) and if on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned:Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government after such review, within the said period of fifteen days.

The declaration which is to be made under Sub-section (2) of Section 12A is specifically required to be communicated to the detenu. The Legislative intent makes it very clear that such a declaration as contemplated in Sub-section (2) of Section 12A has got to be communicated to the person concerned. If, therefore, the Legislature had intended in case of declaration under Section 9 to be communicated to the detenu, it would have said so in express terms. In the second place, we do not find anything in the context of the scheme of Section 9 that such a declaration is required to be communicated to the detenu necessarily within five weeks from his detention. It is no doubt true that the consequence of such a declaration would be that the detenu would be exposed to his liability for being detained for more than one year. It is also true that the State Government is under an obligation to review the order of detention of such a person in respect of whom a declaration is made under Section 9 within a period of six months and consult the Central Government in the matter. It is equally true that a detenu can make a representation to the Parliamentary Committee in the matter of his detention as the Parliament has a right to receive such petitions. However, from these circumstances we are not inclined to agree with Mr. Dam, the learned Advocate for the petitioner, that the necessary consequence is that the declaration under Section 9(1) must be communicated to the detenu within a period of five weeks from his detention. We are also not inclined to agree with the learned Advocate for the petitioner that the declaration itself postulates that it should be communicated to the detenu. We do not thereby mean to say that the declaration is not at all to be communicated to the detenu. The simple dictionary meaning of word 'declaration' is to set forth or to publish or to announce. Wether a declaration which is to be made within a prescribed period of a particular provision of a statute is necessarily to be communicated within that period depends on the consequences, whether the person covered or affected by such a declaration has some right of appeal or representation to be exercised within the prescribed period. Since there is no such consequence, we do not find, therefore, in the context of the scheme of Section 9(1) of the COFEPOSA that the interpretation on the word 'declaration' as canvassed by the learned Advocate for the petitioner is warranted. We are, therefore, of the opinion that this contention of Mr. Daru should fail and should be rejected.


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