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Vijay Champaklal Shah Vs. Addl. Secy. to Govt. of India, Ministry of Finance, Dept. of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1986CriLJ82; (1985)2GLR974
AppellantVijay Champaklal Shah
RespondentAddl. Secy. to Govt. of India, Ministry of Finance, Dept. of Revenue and ors.
Cases ReferredHansmukh v. State of Gujarat
Excerpt:
.....cannot do to say that delay between the prejudicial acts complained of being july 1983 and the detaining authority taking up the proceedings in the third or fourth week of june 1984 was not present before the mind of the detaining authority. nobody can dispute or even doubt the well settled legal principle that all relevant and vital documents must be placed before the detaining authority and that they must be considered. this principle is too well-entrenched to be called in question, but it will be a question of fact whether a particular document alleged to have been not supplied or not placed before the detaining authority or not having been considered was material and vital and for that purpose every individual document is required to be considered and this is the exercise we are..........23/24-7-83 shantilal was actually caught hold of with 31 silver bars as narrated hereinabove. the detaining authority also found that the petitioner had agreed with kishanlal soni of ahmedabad to take delivery of unaccounted silver on commission basis and that the petitioner in his turn had made arrangements with one nasir dingmar, who had given the petitioner rs. 30,000/- in advance towards the purchase of silver and that the petitioner himself was bringing the foreign marked gold in exchange from nazir dingmar. the statement of said shantilal was recorded on 24-7-83 under section 108 of the customs act and it also showed the same thing. similarly, the statement of the petitioner also was recorded on 24-7-83 and on search of his premises that night, certain incriminating documents.....
Judgment:

N.H. Bhatt, J.

1. This is a petition under Article 226 of the Constitution for a writ of Habeas Corpus seeking quashing of the detention order of the petitioner one Vijay. This matter was heard almost for the full day yesterday and to us it appeared that Mr. Kapadia the learned Counsel had finished his arguments to a substantial extent, if not wholly. Today even at 11.15 a.m. Mr. Kapadia is not present and, therefore, we are constrained to proceed to dictating our judgment.

2. The detention order, Annexure A D/- 28-6-84, has been passed by the Additional Secretary to the Government of India, who ordered to detain the petitioner 'with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods'. The grounds of detention bearing the same date are to be found at Annexure B. It was alleged in the grounds that on information received on 23-7-83 from the Collector of Customs, Ahmedabad, the Customs Officers of Surat had kept a watch near the residential premises of this petitioner between 3.00 a.m. and 4.00 a.m. on 24-7-83. There alighted from the rickshaw at that time a person carrying a rexin bag in his hand. The man gave his name to be Shantilal Haridas Patel of Ahmedabad and search of his person resulted in the recovery of 31 pieces of silver, totally weighing 15 kgs. valued at Rs. 52,200.00. (At this stage, Mr. Kapadia appeared and made a request to permit him to argue. We have permitted so and have heard him up to 12-15 p.m. and now we proceed with our dictation). The further investigations were carried out and it turned out that said Shantilal used to transport silver supplied by one Kishanlal Meghraj Soni of Ahmedabad for giving its delivery to the petitioner at his residence at Surat; that earlier on 16-7-83 he had delivered 15 kgs. of silver to him and had taken Rs. 30,000/- from the petitioner for handing over the same to Kishanlal; that on 20-7-83 said Shantilal had delivered to the petitioner at his residence another quantity of 15 Kgs of silver bars and the petitioner had delivered to said Shatilal two slabs of foreign marked gold, weighing ten tolas each for delivering it to Kishanlal Soni; that again on 22-7-83 said Shantilal had delivered silver weighing 15 kgs. to the petitioner at his residence and the petitioner had handed over to Shantilal two slabs of foreign marked gold of ten tolas each for delivering the same to Kishanlal Soni, and that on the night of 23/24-7-83 Shantilal was actually caught hold of with 31 silver bars as narrated hereinabove. The detaining authority also found that the petitioner had agreed with Kishanlal Soni of Ahmedabad to take delivery of unaccounted silver on commission basis and that the petitioner in his turn had made arrangements with one Nasir Dingmar, who had given the petitioner Rs. 30,000/- in advance towards the purchase of silver and that the petitioner himself was bringing the foreign marked gold in exchange from Nazir Dingmar. The statement of said Shantilal was recorded on 24-7-83 under Section 108 of the Customs Act and it also showed the same thing. Similarly, the statement of the petitioner also was recorded on 24-7-83 and on search of his premises that night, certain incriminating documents along with two diaries were recovered and the petitioner admitted in his statement D/- 25-7-83 that the accounts written in the documents contained the accounts of foreign marked gold and silver. The detaining authority ultimately concluded as follows:

12. From the facts narrated above, it is seen that you have been dealing in smuggled goods. During the search of your residential premises certain incriminating documents including two diaries were recovered, as aforesaid. In your statement D/- 25-7-83, you, Vijaykumar Champaklal Shah/Chokshi have admitted that the accounts written on the documents contain the accounts of foreign marked gold and silver. The documents seized also reveal the dealings of contraband goods i.e. fabrics of foreign origin, wrist watches of foreign origins for which you have failed to produce proof of import or payment of customs duty. From the two diaries recovered from your residential premises, it is seen that you had transacted in gold and silver on 12-5-83, 16-5-83, 18-5-83, 195-83, 20-5-83, 22-5-83 and 23-5-83 and the total transaction of such gold comes to 19 slabs valued at Rs. 3,99,900/- and cash transaction of Rs. 1,81,800/- against 145 Kgs. of silver. I have, therefore, no hesitation to conclude that you have been dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. Even though adjudication proceedings under the Customs Act have been initiated against you and prosecution proceedings under the Customs Act, 1962 are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. While arriving at the above satisfaction, I have considered the bail applications filed by you and others before the Chief Judicial Magistrate, Surat and the letter D/- 29-7-83 of Shantilal Haridas Patel addressed to the Assistant Collector, Customs, Surat.

3. The petitioner made a representation to the Central Government on 13-7-84 and it had come to be rejected on 3-8-84. Before that, this petition also had already come to be filed and, therefore, some additional grounds also were pleaded by way of amendment. We propose to deal with each of those arguments advanced vigorously by Mr. Kapadia before us one by one.

4. Firstly, it was alleged that the order of detention was based on stale ground because the alleged incidents were of July 1983 whereas the date of the order was 28-6-84. Amended paragraph 16.5 urges that initially the proposal to detain the petitioner was sent to the State Govt. on 4-11-83 and thereafter complaints were also made latest by 27-1-84, but as the State Government did not do anything despite two reminders of 14-4-84 and 15-5-84, the Central Government was moved and there was thus inordinate delay between the acts complained of and the order of detention. The authorities have shown quite convincingly how the things came to be handled by the State Govt. and how and under what circumstance the Central Government came to be moved. The proposal had come to be made to the Central Government for the first time on 15-6-84 after long proceedings before the Customs authorities including the screening committee thereof and it is alleged that as the Government of Gujarat had not taken any decision despite reminders, the sponsoring authority was required to move the Central Government on 15-6-84. Within a matter of a few days, i.e. on 28-6-84 the impugned order of detention came to be passed. It was very vehemently contended before us that the authority had not addressed itself to this long lapse of time between the acts complained of and the order of detention. The affidavit of the detaining authority amply explodes this contention. The detaining officer has stated in paragraph 2 of his affidavit D/- 1-10-84 as follows:

2. Since the prejudicial activity with regard to smuggling of gold in exchange of silver had assumed alarming proportions causing serious damage to the national economy and smuggling had remained unabetted in absence of any preventive measures promptly taken by the appropriate authority, it was considered by me highly necessary that despite delay, I should take prompt action to detain the petitioner looking to the facts and circumstances of this case as a preventive measure.

It, therefore, cannot do to say that delay between the prejudicial acts complained of being July 1983 and the detaining authority taking up the proceedings in the third or fourth week of June 1984 was not present before the mind of the detaining authority. In this connection, Mr. Kapadia had alternatively urged that as it was open to the sponsoring authorities namely, the customs authorities, to approach simultaneously the Central Government, the fact that they did not do so and awaited the decision of the State Government was a circumstance pointing to the lack of any peremptoriness or urgency of taking the proceedings of preventive detention. There is no law that when there are two parallel authorities competent to deal with a particular course of action, the mover must move both the authorities simultaneously. The Customs Officers were justified in hoping that the State Government in view of the allegedly peremptory character of the measures to be taken in the form of preventive detention would take steps, but after their patience was exhausted as no action was taken despite two reminders of April and May 1984, they chose to approach the other parallel authority. So, there is nothing wrong in the Customs Authorities in not moving the Central Government simultaneously.

5. Picking up the above circumstance as an alternative weapon of attack, the petitioner contended that the copy of the letter written by the Customs authorities to the Central Government pointing out those various factors why the Central Government was required to be approached in the month of June 1984 should have been given to the petitioner so that he could make a representation to the Central Government to the effect that because of the delay no action deserved to be taken and, therefore, the impugned order of detention was required to be set at naught. Inviting our attention to the judgment of the Supreme Court in the case of Lallubhai Jogibhai v. Union of India : 1981CriLJ288 and certain other authorities, including one of the Gauhati High Court, Mr. Kapadia urged that this was a most vital and material document that was not supplied and its non-supply vitiated the detention. We do not agree. The guarantee conferred on the detenu under Article 22(5) of the Constitution of India is pertaining to the grounds of detention and all the documents that go to influence the decision about detention one way or the other directly and not incidentally or peripherally. The judgment of the Supreme Court in the case of Hansmukh v. State of Gujarat : 1980CriLJ1286 and the judgment of the Supreme Court reported in : 1974CriLJ1252 make the position crystal clear. Article 22(5) of the Constitution of India speaks of grounds and the term 'grounds' includes basic facts to be communicated, but further particulars are to be supplied within reasonable time. A clear line of distinction is required to be drawn between the basic facts on one hand, which are essential factual constitutents of the 'grounds' and their further particulars or subsidiary details i.e. peripheral marginal and explanatory facts on the other. The Supreme Court has very categorically laid down in the case of Hansmukh (supra) that while the 'basic facts' being integral part of the 'grounds' must be communicated to the detenu, as soon as may be, after thedetention....further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 22(5) are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition. We, therefore, hold that such a marginal, peripheral, incidental document showing why the sponsoring authority was required to approach the Central Government is not a material document, the non-supply of which can go to vitiate the order of detention or its continuance. We, therefore, do not uphold the contention of Mr. Kapadia that there was delay which remained unexplained or there was non-supply of a material document in the form of,the report made by the Customs authorities to the Central Government on 15-6-84 or thereabout. This report was taken into account by the detaining authority, but it was not for the purpose of detaining or not detaining the detenu. It was only for the purpose of satisfying itself whether delay between the prejudicial acts on one hand and the consideration of the question of detention on the other was such as to snap the alleged live-link between the two.

6. Mr. Kapadia then urged before us that the grounds, Annexure B, when read closely showed that there was non-application of mind. To us, it appears that this is pricking up unnecessary holes in the armour. While giving the narrative part in paras 1 to 11, instead of the petitioner having been referred to as 'you' because the letter was addressed to him, his name was mentioned and in para 4 of the grounds, there was the following sentence written:

He (Shantilal) further stated that he had made two more trips on 20-7-83 and 22-7-83 and silver slabs weighing 15 Kgs. in each trip were delivered to Vijay by him; that he brought two slabs of foreign marked gold in each trip from Vijay and handed over the same to you at Ahmedabad.

Making a mountain of this mole hill 'you' occurring in this last-mentioned sentence, Mr. Kapadia stated that had the detaining authority. any presence of mind at the time of passing the order or formulating the grounds, he would not have used the word 'you' while referring to handing over of the foreign marked gold slabs to Kishanlal at Ahmedabad To us, this appears to be a simple slip of pen. The context makes it absolutely clear that instead of Kishanlal, throuugh inadvertence 'you' was mentioned, but the context shows that the delivery was alleged to have been effected to Kishanlal at Ahmedabad because Vijay, the petitioner, was at Surat. Simply because in paras 1 to 11 wherever the name Vijay or Vijay C. Shah is mentioned and not the second person pronoun 'you', it cannot be said that there is non-application of mind, Different people have got different ways of expression and while a continued narration is being given, the detaining authority thought it proper to refer to the petitioner, not as the second person, but as the third person so, that there is coherent and complete narration. Paragraph 12 begins with a categorical statement that from the facts narrated, before that para, it is seen that 'you' have been dealing in smuggled goods. No man with his mental equilibrium not lost or disturbed can conceivably misunderstand the import of these grounds. It seems that detenus think themselves justified in picking up any excuse or frivolous trifling to attack the detention with. It may be their privilege, but the courts of law cannot attach any significance to such absolutely insignificant pleas.

7. It was then alleged that various important documents were not furnished to the petitioner and, therefore, he was denied a very valuable opportunity of making an effective and complete representation against detention. In this connection the judgment of the Supreme Court in the case of Asha Devi's case AIR 1979 SC 447 : 1979 Cri LJ 203 was pressed into service. Nobody can dispute or even doubt the well settled legal principle that all relevant and vital documents must be placed before the detaining authority and that they must be considered. This principle is too well-entrenched to be called in question, but it will be a question of fact whether a particular document alleged to have been not supplied or not placed before the detaining authority or not having been considered was material and vital and for that purpose every individual document is required to be considered and this is the exercise we are undertaking referring to every document or documents alleged to have been either not furnished or not placed before the detaining authority or not considered by him.

8. It was alleged that adjudication proceedings had been initiated against the petitioner, but the notice given to the petitioner, his reply to the same and their outcome were not brought to the notice of the detaining authority at the time he allegedly took upon himself the task of reaching the decision one way or the other. The detaining authority was conscious of the adjudication proceedings and, therefore, was conscious of the possible or probable outcome thereof. In the grounds of detention, it has been specifically stated by the authority as follows:

Even though adjudication proceedings under the Customs Act have been initiated against you and prosecution proceedings under the Customs Act, 1962 are likely to be initiated against you, I am satisfied that you should be detained....

What character those proceedings took, what reply the petitioner gave to those proceedings or what happened or could have happened in the criminal prosecution or in the long drawn out process of theirs is hardly a matter which directly or indirectly goes to influence the judgment of the detaining authority for the purpose of arriving at the decision of detention. They are the factors to be brought to the mind only for the purpose of ascertaining whether the initiation of the adjudication proceedings or launching of prosecution can meet the requirement of law making the detention unnecessary or uncalled for. Their relevance is only to this extent and not for the purpose of deciding whether the man must be put into detention. In other words, they are peripheral facts, marginal facts and incidental facts and they are not the basic facts going directly to the root of the question whether the detenu should or should not be detained by way of a preventive measure.

9. It was then alleged that the petitioner was. arrested and the arrest memo which is there on the record of the documents at page 93 of the file was not considered. It was alleged before us that the detenu had told the Magistrate that 'he' had been ill-treated and he was even physically beaten and this fact was not considered by the detaining authority. It was also alleged that the petitioner was detained with others for four days illegally, i.e. from the night of 23-7-83 to 27-7-83, the day on which he was produced before the Magistrate. It was also alleged that the petitioner's complaint before the Judicial Magistrate on 2-8-83 at page 269 of the file was not considered and similarly was not considered the criminal complaint filed by Shantilal which was at page 313. It was also contended that retraction of the various confessions or confessional statements alleged to have been brought about by coercion or concoction by simply taking the signatures of the persons detained also was not taken into account. In this connection, our attention was invited to ground No. 8, ground No. 15 and other grounds contained in the petition. We find that there is no substance in any of these allegations. The detaining authority in this connection has made the position crystal clear. It has been stated in the grounds of detention themselves that while passing the detention order, he had relied upon all the documents mentioned in the enclosed list and a copy of those grounds and copies of statements and documents translated in the language known to the petitioner was also enclosed. Apart from this general statement made in para 13 of the grounds of detention, in the affidavit-in-reply, the detaining authority has elaborated this consideration vide paras 9, 10, 12, 14, 16 and 17. The cumulative effect of all these statements is that all relevant facts were brought to bear on the mind of the detaining authority at the time it took on hand the question whether the petitioner should or should not be detained. The affidavit shows that there was no criminal complaint registered in the court of the Judicial Magistrate filed by Nazir Dingmar, the man who allegedly supplied the gold bars, that the petitioner when produced before the learned Magistrate and while giving the bail application had not been found with any visible injuries on his person and there was only general allegation of ill-treatment or mal-treatment without any reference to specific coercion or mental torture. The detaining authority was also alive to the subsequent certificate of injuries procured by the petitioner in order to substantiate his alleged allegation of ill-treatment of physical torture. Particularly, in para 16, the detaining authority states as follows:

Item No. A in para 15 is at page 241; Item B is at page 227, Item C is at page 247 and Item No. D is at page 269; Item E is at page 313/9 of the compilation of the documents given to the petitioner which were taken by me into consideration while passing the detention order.

In our view, this is enough compliance with the requirement of law regarding consideration of the documents. It was alleged before us that the petitioner made general allegation of maltreatment before the learned Magistrate on his being produced and the Magistrate kept the matter on 2-8-83 for recording his detailed statement, but on that very day, namely, 27-7-83, he was released on bail and he did not bother to give any further statement. Regarding the petitioner having been detained for three or four consecutive days, the contention is to be found in para 4 of the petition and we find the reply at page 29. The detaining authority was alive to this allegation. Referring to various circumstances and looking to the tenor of the statement, the detaining authority was satisfied that the statements were voluntary. It was alleged that the copy of the panchnama of the search of the house of this detenu was not given to him. Even on this part, the detaining authority has addressed itself. We, therefore, find little merit in this ground about non-application of mind to or non-consideration of, the important documents and circumstances at the hands of the detaining authority.

10. Mr. Kapadia then contended before us that the subsequent affidavit stating that all important documents were considered by him would not be sufficient, but this consideration must be reflected in the grounds of detention itself. It depends upon the magnitude and importance of the documents. We have already drawn a clear line of distinction between the documents pertaining to basic facts and the documents pertaining to peripheral, marginal and explanatory facts and if the detaining authority in the grounds of detention does not refer to such marginal facts specifically, we do not think that any vice can be attached to the document or to the grounds.

11. It was then alleged that there was lapse of unreasonably long time in considering the petitioner's representation against his detention. The petitioner's representation was dt. 13-7-84 and it came to be turned down on 3-8-84. Mr. Kapadia urged that there was no explanation why the representation that reached Ministry of the Central Government on 17-7-84 remained unattended till 26-7-84 and then it remained further unattended up to 3-8-84. It is not correct to say that the delay has not been explained. In affidavit para 15 at pages 33 and 34, the detaining authority has laid bare all the circumstances:

I say that the representation was sent on July 13,1984 which was received by the Ministry on 17th of July 1984. Since there were many representations pending the incident, the representation was placed before the Government on July 26, 1984. At that time, I had about 35 representations to be considered and, therefore, after due consideration of the representation, I had passed the order of rejection thereof. It was sent to the petitioner on August 3, 1984 which was received by him on August 7, 1984. Under these circumstances, I say that there is no delay whatsoever looking to the facts and circumstances that between 1-7-84 to 18-7-84,35 representations were received by the Ministry and they were to be disposed of expeditiously. I, therefore, say and submit that I had considered the representation and decided the same as early as it could be possible by me.

The said paragraph further shows that the very officer had in those days before him a number of proceedings calling for urgent considerations. This explanation, in our view, is quite legitimate and reasonable. Detenus, whose fundamental right of personal liberty is jeopardised, have a right of peremptory treatment, but one detenu cannot claim superiority over similarly situated brethren of his, When a number of such matters is on the anvil, it is but natural that some time will be required to be devoted to each of those cases individually. When before a court of law one individual petition like the present one is required to be dealt with for even five hours or ten hours with all niceties being brought out by the learned painstaking advocates, it is but natural that the detaining authority, though not trained in the legal method of working, is expected to take some time to consider every conceivable important facet. Therefore, some such lapse of a few days, particularly when the inroad of matters is very high, is inevitable. In the facts and circumstances, we are, therefore, satisfied that there is no delay which remained unexplained in consideration of the representation of the petitioner.

12. Lastly, it was urged before us that in the facts and circumstances of this case, the detaining authority should have held that the prosecution of the petitioner would have met the safeguarding of the national interest. The allegation in this connection is elaborated in para 13 of the petition. It was alleged that the detaining authority had not considered whether the ordinary criminal proceedings under the Customs Act would be sufficient or not in the given set of facts of the case of the petitioner; and that the detaining authority had not considered various aspects regarding the launching of the criminal prosecution. We have already quoted above the exact words borrowed from the grounds of detention. Even in the affidavit, the position has been made very clear. The detaining authority was satisfied that the activity of the petitioner was not a solitary instance of minor dimension, but before him there was material to show that it was a well drawn out and well-chalked out plan carried out systematically in conjunction with other agencies. If in these circumstances the detaining authority says that it was satisfied about the inevitability of the preventive detention, despite the contemplated adjudication proceedings and the launching of the criminal proceedings, the detaining authority cannot be said to have missed to consider this relevant aspect, though not a basic one.

13. In the above circumstances, we see no case for interference with the order in exercise of our writ jurisdiction under Article 226 of the Constitution of India, which jurisdiction, as is well-said is wide, but limited.

14. The result is that the petition is rejected. Rule is discharged with no order as to costs.


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