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Kanchanlal Trikamlal Patel Vs. Shyamal Ghosh, Dist. Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Customs
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR675
AppellantKanchanlal Trikamlal Patel
RespondentShyamal Ghosh, Dist. Magistrate and ors.
Cases ReferredGolam Hussain Alias Gama v. Commissioner of Police
Excerpt:
- - 2. it is clear therefore that you are engaged in smuggling of goods and i am satisfied that it is necessary to detain you with a view to preventing you from continuing to do so. 1999 of 1973 and 1913 of 1973 respectively, the supreme court was concerned with the constitutional validity of the maintenance of internal security act, 1971 as well also with the legality of the orders passed detaining the petitioners in those cases by the west bengal government. so also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. justice dua speaking for the court again referred to these well established principles which courts should always bear io mind while dealing with the detention orders under the.....b.k. mehta, j.1. the petitioner herein who is the father of detenu sevantilal kanchanlal patel challenges by this petition the order of detention passed by the district magistrate, surat, respondent no. 1 herein, on september 23, 1974 detaining sevantilal kanchanlal patel of surat with a view to prevent him from smuggling goods under section 3(1)(c) of the maintenance of internal security act, 1971. the order has been passed in the following circumstances:the petitioner, his son sevantilal who happens to be the detenu and four other persons carry on the business of angadia (personal messenger service) in the name and style of somabhai kanchanlal & company which is a registered partnership firm. it is the case of the petitioner that the firm is carrying on its business of angadia for the.....
Judgment:

B.K. Mehta, J.

1. The petitioner herein who is the father of detenu Sevantilal Kanchanlal Patel challenges by this petition the order of detention passed by the District Magistrate, Surat, respondent No. 1 herein, on September 23, 1974 detaining Sevantilal Kanchanlal Patel of Surat with a view to prevent him from smuggling goods under Section 3(1)(c) of the Maintenance of Internal Security Act, 1971. The order has been passed in the following circumstances:

The petitioner, his son Sevantilal who happens to be the detenu and four other persons carry on the business of ANGADIA (Personal Messenger Service) in the name and style of Somabhai Kanchanlal & Company which is a registered partnership firm. It is the case of the petitioner that the firm is carrying on its business of ANGADIA for the last about 30 years having its main office at Surat and branch offices at 13 places, inter alia, at Bombay, Ahmedabad, Delhi, Rajkot, Baroda and Broach. The detenu being a partner of the said firm attends the main office at Surat since about two to three years. He was arrested and detained in Sabarmati prison by the order of respondent No. 1 of September 23, 1974. The case of the petitioner is that the business of ANGADIA consists of accepting articles and/or parcels from consignors who wish their articles and parcels to be carried to the places where the firm has its offices. The consignments are accepted for being carried to the consignees at the destination in consideration of a fixed rate of charge which varies according to the weight of parcels and distance to be covered. The said firm has got about 80 persons in its employment for purposes of its business. Any consignment which is accepted by the firm at any of its offices is carried by an employee to the Railway station where he books the articles with the Railways and obtains railway receipts for the parcels which are carried In the brake-van. The employee concerned also carries valuable articles on his person In a bag of valuables known as Jok.Ham-Theli. The employee concerned would travel by the same train and would carry with him the railway bills for the parcels so booked. Another employee of the firm posted at the destination station receives these parcels and articles at the destination and takes these way bills and other valuable articles from the travelling employee. On the basis of these way bills, the employee at the destination station would take delivery of parcels and would carry them to the branch office of the firm. It is the case of the petitioner that in course of these services it often happens that a consignee may himself come to the office and take delivery of the consignment or the article. It is the say of the petitioner that on average the firm accepts and delivers about 500 consignments every day from all of its offices. The responsibility of any loss or damage to the consignment or the article in the course of this service would be the responsibility of the firm, but at no stage of the handling of these consignments or articles, the firm would be required to examine or would in fact examine the contents of the consignments. It is the case of the petitioner that according to the conditions of the contract of carriage of these consignments and articles, the consignors are directed not to consign any goods which are prohibited or to possess which would be a penal offence. In other words, the business of the firm is to carry parcels in consideration of the moderate charges. According to the petitioner it has happened sometime in past that a parcel was found to contain some illegal or prohibited articles or goods by the Customs Officials in the hands of the employee of the firm and such articles have been seized by the Customs authorities. However, such occurrences are very few and far between and out of 180000 parcels carried per year by the firm hardly half a dozen of such incidents have occurred. But in all these cases, it is the case of the petitioner, the firm has not been held responsible nor on any single occasion any penalty has been imposed by the Customs Authorities either or the employee carrying such articles and from whom the same were seized or on the firm, and in cases where such penalty was imposed by the Customs officials, the Government of India has in revision proceedings set aside the orders of penalty. It is also the case of the petitioner that the firm has got on its list of customers many Companies or Firms of repute and standing which have found it more convenient to avail of these services and send their consignments through the firm on account of quickness and efficiency of its services. It is the claim of the petitioner that it is on account of this prompt and efficient service rendered by the personal messengers that the services have become very popular in this Country. It is against this background the petitioner has challenged the impugned order which has been passed on the following grounds:

(1) You are the partner of the firm known as Angadia Soma Kanchan and Co., Ruwala Tekra, Surat. On 13-9-1973 at 23-30 hours, an envelope addressed to 'Taib Mama Suratwala' Bombay being carried by one of your employees Shri Kanaiyalal Kuberdas Patel was detected by the Customs Officials of Surat. This envelope contained receipt Nos. 16996 and 17007 dated 13-9-73 for Bombay of New Saurashtra Transport Co., Udhna. Further enquiries by the Customs Officials in this behalf on the basis of the information contained in the envelope resulted in a case of seizure of foreign fabrics valued at Rs. 28,305/- at Bhilad Check Post on the morning of 14-9-73. (2) On 16-8-74, 8 tins of some unknown chemicals of foreign origin were seized at the Railway station Surat from the parcels of your firm mentioned above. Although there were no markings on the tins you had accepted them for transportation to Bombay and were reluctant to convey the details of the consignor.

2. It is clear therefore that you are engaged in smuggling of goods and I am satisfied that it is necessary to detain you with a view to preventing you from continuing to do so.

This order of detention has been attacked by the petitioner as one which is arbitrary, capricious, contrary to law and lacking in bona fides, as it is related to an incident which was stale and said to have taken place somewhere in September, 1973, that is, about a year before the date on which the detenu was taken in custody. The second count of attack is that the grounds of the impugned order are vague, lacking in particulars and not precise. The third count of attack is that respondent No. 1 has considered materials which have not been disclosed to the detenu and has forwarded the same to the State Government for purposes of the confirmation of the order. This third count of attack has been added by way of amending the petition as a result of some averments made by the respondent No. 1 in his affidavit-in-reply. The consideration by respondent No. 1 of this additional material and vague grounds has deprived the detenu of his constitutional right to make effective representation as guaranteed by Article 32 of the Constitution of India. The 4th count of attack is that in any case assuming without admitting the grounds to be true as they are, they do not lead to a reasonable inference that the detenu was indulging in the activities of smuggling and, therefore, required to be put under detention.

2. The jurisdiction of the Court while considering the orders passed under Maintenance of Internal Security Act, 1971 has been considered by the Supreme Court on a number of occasions. In Haradhan Saha v. The Stale of West Bengal and Ors. and Madan Lal Agarwala v. The State of West Bengal Ors. being Writ Petitions Nos. 1999 of 1973 and 1913 of 1973 respectively, the Supreme Court was concerned with the constitutional validity of the Maintenance of Internal Security Act, 1971 as well also with the legality of the orders passed detaining the petitioners in those cases by the West Bengal Government. The Supreme Court has reaffirmed the relevant principles which Court should bear in mind while considering the legality of an order made under the said Act, The relevant paragraph from the judgment of the Supreme Court reads as under:

The recent decisions of this Court on this subject are many. The decisions in Borjanan Gorey v. The State of West Bengal reported in A.I.R. 1972 S.C. 2255; Ashim Kumar Ray v. State of West Bengal reported in : AIR1972SC2561 ; Abdul Aziz v. The Distt. Magistrate, Bardwan and Ors. reported in : [1973]2SCR646 and Debit Manto v. The State of West Bengal reported in : 1974CriLJ699 correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh and Ors. reported in : 1974CriLJ817 which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can b broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodge a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where concerned person is actually in jail custody at the time when an Older of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

In Anil Dey v. State of West Bengal : 1974CriLJ702 , Mr. Justice Krishna Iyer speaking for the Court observed in paragraph 5 as under:

Of course, the veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency. Neverthless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify the detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted.

In Debt Manto v. The State of West Bengal : 1974CriLJ699 Mr. Justice Bhagwati speaking for the Court again reiterated the same principles when he observed:.The order of detention is essentially precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. But whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. It may be easier to draw such an inference where there is a series of acts evincing a course of conduct but even if there is a single act, such an inference may justifiably be drawn in a given case.--

In Borjanan Gorey v. The State of West Bengal : [1973]1SCR751 , Mr. Justice Dua speaking for the Court again referred to these well established principles which Courts should always bear io mind while dealing with the detention orders under the Preventive Detention Act. As has been said in the said judgment.

The preventive detention provided by the Act is designed to deal urgently and effectively with the more serious situation inter alia, affecting the security of India and the maintenance of public order as contemplated by Section 3 of the Act. Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a criminal court against a person merely for keeping the peace or for good behaviour under Chapter VIII of the Code of Criminal Procedure is a jurisdiction distinct from that of detention under the Act, which has in view, the objection of preventing the detenu from acting in any manner prejudicial inter alia to the security of the State or maintenance of public order. The fields of these two jurisdictions are not co-extensive nor are they alternative. The jurisdiction for trial or for preventive proceedings under Chapter VIII, Code of Criminal Procedure cannot be successfully invoked in a situation where a person is suspected to be likely to act in a manner prejudicial to the security of the State or public order. A case under the Code of Criminal Procedure whether punitive or preventive depends on the proof of objective facts which have already taken place, whereas a case under the Act providing for preventive detention depends on the subjective satisfaction of the authorities concerned of the likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts. The fact, therefore, that a prosecution under the Code also could have been launched is not a valid ground for saying that it precludes the authority from acting under the Security Act.

3. It is no doubt true that these principles have been enunciated and reiterated on a number of occasions while dealing with detention orders passed under the Maintenance of Internal Security Act in the context available before it was amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974 (No. 11 of 1974) on 17th September 1974. By Section 3 of the said Ordinance, in Section 2 of the Principal Act, that is, the Maintenance of Internal Security Act, 1971, after Clause (c), the definition of word 'smuggling' has been inserted by the following Clause (cc):

(cc) 'smuggling has the same meaning as in Clause (39) of Section 2 of the Customs Act 1962 and all its grammatical variations and cognate expressions shall be construed accordingly.

By Section 4 of the said Ordinance in Section 3 of the Principal Act in Sub-section (1) after Clause (b) the following Clause (c) has been inserted:

(c) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from-

(i) smuggling goods, or

(ii) abetting other persons to smuggle goods, or

(iii) dealing in smuggled goods.

By Section 5 of the Ordinance a new Section 16A has been inserted after Section 16 of the Principal Act, which provides for cases in which and the circumstances under which persons may be detained for longer than three months without obtaining opinion of Advisory Board. The new Section 16A, therefore, to that extent makes a vital departure from the original provision contained in the Principal Act by providing cases and the circumstances in which a person may be detained for a longer period of three months without obtaining the opinion of the Advisory Board.

4. Though the principles as enunciated and reiterated by the Supreme Court which have been set out above, were, as stated earlier, in connection with detention orders passed before the amendment, those principles remain equally effective principles which Courts must bear in mind while examining the legality and validity of detention orders which are passed under the said Act after this amendment by the aforesaid Ordinance, because, it is only when the Central Government or the State Government is satisfied with respect to any person including a foreigner with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from indulging in the objectional activities of smuggling that the detention order can be passed by the detaining authority. It s, therefore, necessary that the detaining authority must be satisfied subjectively with respect to a person sought to be detained that his order of detention is necessary with a view to prevent a person sought to be detained from acting in a manner which is prejudicial to the conservation of foreign exchange or with a view to prevent him from indulging in activities of smuggling. This subjective satisfaction of the detaining authority cannot be a matter of issue in a judicial proceeding unless, as has been said by the Courts often, the grounds on which the order is based are unreal in the sense that they are fictitious or fanciful and on the basis of which no reasonable person can reach the conclusion either because the incident attributed to the detenu is too trivial in substance or too stale in point of time as to snap the rational link that should exist between his past acts and the likelihood of his indulging in prejudicial activities sought to be controlled. The Courts should always bear in mind when it is called upon to examine the legality or validity of a detention order that it is dealing with a question of personal liberty of a citizen and in ultimate analysis the answer to the question may depend on the observance of procedure and this observance of procedure is a real bulwark against the executive inroads on the liberty of an individual. Mr. Justice Mathew raised a salutary note of warning in Prabhu Dayal Deoran v. District Magistrate, Kamrup and Ors. : 1974CriLJ286 when he observed:.We say and we think it is necessary to repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of a personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be overemphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ.

5. It is in this context that we have to examine the legality and validity of the order which has been challenged by this petition. As stated above, there is sort of a four pronged attack on behalf of the petitioner against this order of detention. It is said that the grounds furnished to the detenu are not precise and, therefore, do not provide him with an adequate opportunity as to ensure him the right of making effective representation guaranteed under Article 22 of the Constitution of India. A grievance has been made on behalf of the petitioner that neither ground No. 1 nor ground No. 2 in the detention order gives sufficient particulars so as to connect the detenu with the activity of smuggling. In order to appreciate this contention, the circumstances in which the journey of the employee of the firm of Somabhai Kanchanlal & Company was intercepted should be briefly referred to. In paragraph 3 in the affidavit-in-reply filed by the detaining authority-respondent No. 2 herein the circumstances which prompted him to make this impugned detention order have been set out, In paragraph 3 it has been averred,-

I say that material was placed before me by the Custom) Authorities at Surat to the effect that Sevantilal Kanchanlal Patel, the detenu, was engaged in smuggling. 1 say that on information received by the Customs authorities activities of the firm of Somabhai Kanchanlal & Co., were being watched and as stated by the petitioner himself on some occasions in the past parcels containing contraband articles were seized from the possession of the employees of the said firm while they were in the process of transporting them. 1 say that on 13-9-1973 specific information was received by the officers of the Customs Department at Surat that the firm of Somalal Kanchanlal & Co., would be carrying two transport receipts in respect of contraband goods which were to be transported to Bombay in a truck of Messrs New Saurashtra Transport Co., of Surat. Acting on this information the Customs Officers raided the premises of Somalal Kanchanlal & Co., at Surat and seized from one of its employees Kanchanlal Kuberdas Patel an envelope which was kept in 'Jokham Theli'. The only thing that was written on that envelope was 'Taiyab Mama Suratwala, Bombay' The Customs authority had in its possession information to the effect that the said firm was engaged in smuggling of goods and that it used to do it by showing fictitious names of consignors and consignees and without mentioning the full address of the said consignors and consignees on the relevant documents of parcels. Relying upon this information the envelope addressed to 'Taiyabmama Suratwala, Bombay' was seized and opened and it was found that it did not contain anything else but two transport receipts. The Custom Authorities thereupon questioned the employees of the firm about the identity of consignor and recorded statements of (i) Kanaiyalal Kuberdas and (ii) Vithalbhai Mohandas, employees of the firm but they could not give any satisfactory reply about the identity of the consignor. As a result of this find, a watch was kept at Bhilad check-post and when the truck of M/s New Saurashtra Co., passed by the said post it was checked and from it 4 parcels containing fabrics of foreign origin were found. In this connection the customs authorities had also recorded the statements of the employees of the New Saurashtra Transport Co. Their statements revealed that the consignors and consignees in each of the receipts were different and in none of them 'Taiyabmama' was shown as a consignee. Again acting on prior information the customs officers at Surat on 16-8-1974 intercepted 8 tins containing chemical powder of foreign origin. The said tins were found in possession of Mafatlal Shivram Patel, employee of the said firm at Surat Railway station. Statements of the employees of that said firm as well as that of the detenu were recorded in this behalf and the inquiries made by th customs officers revealed chat the said consignments were despatched by 'self and they were to be delivered to one 'Hasambhai Noormahmad at Mahmadali Road, Bombay'. It was also revealed on further inquiries that the said chemical consisted of tetracycline mixed with some other chemicals. Neither the detenu nor the firm of the detenu could explain before the customs authorities their possession with regard to the said 8 tins. The said tins though in a sealed condition did not contain any labels thereon and only the name of the consignee was mentioned thereon. I say that all this material was placed before me by the Customs authorities and I had carefully considered the same. I was satisfied on the basts of the said material that along with and under the cover of their lawful business of an Angadia the detenu and his firm were engaged in smuggling of goods. I was also of the view that it was necessary to pass an order of detention against the detenu in order to prevent him and the firm from carrying on such prejudicial activities--

The learned advocate on behalf of the petitioner, therefore, urged that these grounds on the basis of which the impugned order has been made are not clear enough nor contain precise particulars so that the detenu may have an adequate opportunity of making effective representation. We have set out the grounds in extenso and we have not, been able to appreciate how the grievance is made on behalf of the petitioner that these grounds are not precise or they lack in particulars which would deprive the detenu of his constitutional right of making effective representation The pertinent facts brought to the notice of the detenu in this impugned order which prompted the detaining authority to make it are as under:

(1) On 13-9-1973 at 23-30 hours Shri Kanaiyalal Kuberdas Patel who happened to be an employee of the firm was detected by the Customs Officers at Surat carrying an envelope addressed to one 'Taiyabmama Suratwala, Bombay'.

(2) The said envelope contained two transport receipts of even date issued by the New Saurashtra Transport Company of Udhna in respect of the consignments bound for Bombay.

(3) The Customs Officials in course of further inquiries made on basis of the information contained in the said envelope seized foreign fabrics valued at Rs. 28,305/- at Bhilad checkpost on the morning of 14th September, 1973.

6. In our opinion, it cannot be said that the particulars furnished in these grounds are insufficient or inadequate so as to deprive the detenu of his constitutional right to make effective representation. Similarly the pertinent facts which have been brought to the notice of the detenu in ground No. 2 are as under;

(1) On 16-8-1974 eight tins containing some 'unknown chemicals of foreign origin' were seized from amongst the parcels carried by an employee of the firm of Somalal Kanchanlal & Company at Surat Railway Station.

(2) There were no markings on the tins which were accepted for transportation to Bombay.

(3) The detenu was reluctant to convey the details of the consignments.

7. We do not think that it can be successfully urged that the particulars furnished in this ground No. 2 were vague or in general terms or inadequate so as to deprive the detenu of his constitutional right of making effective representation.

8. The learned advocate on behalf of the petitioner, therefore, advanced his second prong of attack that from these particulars no reasonable person can reach the conclusion that the detenu was engaged in smuggling as defined in the M1SA as amended by Ordinance No. 11 of 1974. As a matter of fact, there were two limbs of this second attack--one is that the detaining authority has reached the conclusion he has sought to do on the ground which was stale and of remote past, and the second, that there is no rational nexus between the activities sought to be attributed to the detenu and the conclusion reached. It was contended that at the most what was found by the Customs Officials either in August 1974 or for that matter in September, 1973 was the possession of eight tins which the detaining authority describes as containing 'some unknown chemicals of foreign origin' or the envelope containing two transport receipts issued by the New Saurashtra Transport Company, Udhna for the goods bound for Bombay and addressed to one 'Taiyabmama Suratwala, Bombay.' On these facts it was so urged on behalf of the petitioner that no reasonable man of ordinary intelligence and common sense would reach the conclusion as respondent No. 1 has tried to do that the detenu was indulging in the activities of smuggling as defined in MISA as amended by Ordinance No. 11 of 1974.

9. On behalf of the respondents, these contentions have been sought to be repelled by the learned Advocate General by urging that the approach of Court should be not to examine detention orders with a view to satisfy itself beyond reasonable doubt that the detenu indulged in the prejudicial activities of smuggling nor would it be open to Courts to examine these orders so as to justify them beyond shadow of doubt that they were the proper and correct orders. It is the periphery jurisdiction of this Court in exercise of which the Court is called upon to examine this detention order. The approach of the Court should be to see whether it is unreasonable on the part of the detaining authority to reach the conclusion or the grounds stated in the order. We are of the opinion that the contention of the learned Advocate General is well founded that the jurisdiction of the Court is not to satisfy itself beyond reasonable doubt whether the acts which have been imputed to the detenu were committed by him or from these facts the Court would reach the same conclusion as reached by the detaining authority. The approach, as has been rightly contended by the learned Advocate General, of the Court should be to examine whether it was not reasonable on the part of the detaining authority to reach the conclusion on the facts and materials placed before him by the Customs Officials. We have, therefore, to examine whether the detaining authority could have reached the conclusion it did in the present case as a reasonable man of ordinary prudence. The learned Advocate General has rightly posed the question before this Court, whether it could be urged that it was not reasonably possible for the detaining authority to reach the conclusion it did in the facts and circumstances of this case. The conclusion which the detaining authority has reached in the present case on the facts and materials placed before him is that the detenu was engaged in smuggling of goods. In other words, the goods which were found in possession of the employee of the firm in which the detenu was a partner in September 1973 and in August 1974 were the goods of the detenu and his firm. The learned advocate for the petitioner, therefore, urged that as far as the incident of September, 1973 was concerned, even if it be considered, it merely reveals that the employee of the firm was carrying an envelope in which there were two transport receipts and it, therefore, cannot be said that the said employee was in possession of the goods on behalf of his firm because the goods were never in his physical possession since what he was carrying was merely an envelope containing two transport receipts. As for the second incident of August 1974, it was contended on behalf of the petitioner, that what was seized by the Customs Officials was eight tins containing some material which, according to the Customs Officials, was 'unknown chemicals of foreign origin' which is on the face of it a contradiction in terms. The approach, as we have to remind ourselves, in this connection is that it is the subjective satisfaction on the detaining authority which is not justiciable and the veil of that satisfaction cannot be lifted by Courts with a view to satisfy itself about its objective sufficiency unless the Court comes to the conclusion that the opinion of the detaining authority was not honest and real in the sense that he as a rational individual would not have entertained the opinion which is necessary for the detention order. Can it, therefore, be said that the grounds on which reliance has been placed by the detaining authority are grounds so alien or so irrational that they cannot be said to have any connection with the prejudicial activities sought to be curbed by the statute? It cannot be urged in the facts and circumstances of the present case which the detaining authority has amply set out in his affidavit-in-reply that these activities attributed to the detenu were so insignificant or trivial in substance or so disconnected in point of time that they cannot form a reasonable nexus between the prohibited activity and his past conduct. The affidavit-in-reply of the detaining authority makes it abundantly clear that the envelope found with Kanaiyalal Kuberdas Patel who happened to be the employee of the firm on 13th September, 1973 was kept in Jokham Theli (bag of valuable articles) carried by him. It would not have been possible for the employee concerned to keep that envelope in Jokham Theli unless he knew or he was apprised by the office of the firm that it contained two transport receipts which would be title to the goods. The fact that this envelope was found from the Jokham Theli is a significant fact. It, therefore, cannot be urged that the Surat office of the firm had no knowledge about the contents of this envelope. Another significant fact which has been found out by the Customs Officials on opening the envelope was that two transport receipts did not contain the name of the person described as 'Taiyab Mama Suratwala' as the addressee on the envelope. Lack of the particulars of this addressee on the envelope would have also some bearing. The affidavit-in-reply of the detaining authority makes it clear that the two transport receipts found from the envelope mentioned some other persons as consignor and consignee and the employee concerned carrying that envelope could not satisfactorily account for the consignor. Similarly as far as the seizure of eight tins on 16th August 1974 at Surat Railway Station is concerned, the records of the firm show that the consignor was 'self and was consigned to Hasanbhai Noormohmad, Mohmadali Road, Bombay. Again it should be noted here that the particulars of the consignee were not sufficient so that the personal messenger could not have delivered these parcels to the consignee concerned. It has been made further clear in affidavit-in-reply that neither the detenu nor the employee carrying the parcels on 16th August 1974 could satisfactorily explain about the consignor. If this envelope was or the articles were accepted in the ordinary course of business of rendering personal messenger's service, the detenu being the partner of the firm, would have been certainly able to atleast account for the identity of the consignor. The fact that neither the employee concerned carrying the articles or parcles nor the detenu could satisfactorily account for the consignor coupled with the fact that the particulars of consignee were also insufficient and the two transport receipts found in the envelope referred to some different consignors and consignees have been duly considered and found to be sufficient by the detaining authority to reach the conclusion that it was the detenu who was responsible for carrying these articles which contained or related to the prohibited goods. It cannot be said that these facts and circumstances narrated above were so trivial in nature and insufficient that they may not afford reasonable grounds for the detaining authority to reach the conclusion that the detenu was engaging himself in smuggling of goods. The learned advocate on behalf of the petitioner, therefore, attempted to persuade us to hold that the incident of September, 1973 was a stale incident of a remote past and could not have provided a reasonable link between the past conduct and the prohibited activity. We are afraid we cannot accede to this submission of the learned advocate on behalf of the petitioner because the question about staleness of the incident or it being of remote past cannot be determined merely by arithmetic calculation of months. It has to be judged in the facts and circumstances of each case. It is not as if it is a question of limitation. The learned advocate for the petitioner also fairly conceded that the Court has to judge in the overall setting of the circumstances, whether the incident on which the detaining authority relies is an incident of remote past or of recent past. We are of the opinion that having regard to the nature of investigation which is required to be made in cases of this kind and more particularly in the facts and circumstances of the present case where the investigation has got to be made in respect of consignors, consignees, the source of articles and the nature of goods, it cannot be said that the incident of September 1973 was one of such a remote past that it would snap the reasonable link between the past conduct and the prohibited activity.

10. The learned advocate on behalf of the petitioner, therefore, urged that in any case assuming without admitting that the grounds as stated in the detention order were true in all their particulars, even then, the detaining authority could not have reached the conclusion that the detenu was indulging in smuggling of goods. As stated by us above, it is not for the court to be satisfied beyond shadow of doubt that on these facts a conviction for the Custom offence of smuggling could be made of the detenu. We have to satisfy ourselves as to whether on these facts the detaining authority could not have reasonably reached the conclusion that the detenu has indulged in the smuggling of goods. Smuggling has been defined by the Ordinance as having the same meaning of the word 'smuggling' in Section 2(39) of the Customs Act, 1962. The said sub-section defines 'smuggling' in relation of any goods to mean any act or omission which will render such goods liable to confiscation under Section Ill or Section 113. Section Ill provides for confiscation of goods brought from a place outside India. Clause (p) of Section Ill prescribes that any notified goods in relation to which any provisions of Chapter 1VA or of any rule made under the Customs Act for carrying out the purposes of that Chapter have been contravened are liable to confiscation. What goods are notified goods has been prescribed by Section 1-1B of Chapter IVA. It provides,-

11B. If, having regard to the magnitude of the illegal import of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation or disposal of such goods, or facilitating the detection of such goods, it may, by notification in the Official Gazette, specify goods of such class or description.

Clause (d) of Section 11A defines 'notified goods' to mean goods specified in the notification issued under Section 11B. By notification bearing Customs No. 10/69 dated 3rd January 1969 as amended by notification No. 14/69 of 11-1-1969 all fabrics, Saris and Knitted wear made wholly or partly of synthetic yarn have been classed as notified goods by the Central Government having regard to the magnitude of the illegal import of goods mentioned in the schedule annexed to the said Notification after being satisfied that it is expedient in the public interest to take special measures for the purposes of checking the illegal import, circulation, or disposal of such goods and facilitating the detection of the said goods. Section 11-E of the said Chapter IVA prescribes the obligation of persons acquiring or possessing notified goods to maintain true and complete accounts of such goods and to make an entry in the said accounts in relation to his acquisition or parting with such goods giving all particulars of the person from whom such goods have been acquired or in whose favour such goods have been parted, as the case may be, and such accounts are required to be kept along with the goods at the place of storage of individual goods to which such accounts relate. The failure on the part of the detenu to account for the goods of which he was in possession through his employes as to the source of acquisition, namely, the consignor in the particular case of the name and address of consignee, has been rightly relied upon by the detaining authority to reach the conclusion that the detenu was indulging in the prohibited activities.

11. The learned advocate on behalf of the petitioner then invited our attention to the second ground which in his opinion rendered the entire detention order bad in law because it nowhere stated exactly the nature of the material found in the said eight tins seized at Surat Railway station on 16th August, 1974. It was vehemently urged that if this ground is bad in itself, it would render the entire order bad in law and in the submission of the learned advocate for the petitioner this ground is indicative of the fact that the detaining authority has not applied his mind to the facts of the case and accepted whatever has been placed before him by the Customs Officials. A great emphasis was laid by the learned advocate of the petitioner on the statement made in the ground that eight tins seized on 16th August 1974 contained 'some unknown chemicals of foreign origin' which, according to the learned advocate of the petitioner, is a contradiction in terms. If the detaining authority did not know what was that chemical, how could he be described it as of 'foreign origin'? In the commission of the learned advocate of the petitioner the detaining authority in his affidavit-in-reply tried to make out a further ground by stating on oath that the said material was revealed on further inquiries to be tetracycline mixed with some other chemicals. We do not think that this grievance of the learned advocate of the petitioner is justified. Our attention has been invited in this connection to the decision of Supreme Court in Prabhu Dayal Deoran v. District Magistrate Kamrup and Ors. (supra) where the Supreme Court was concerned in a petition for writ of Habeas Corpus against the detention orders made against the petitioners following a police raid at the stores of Deoran Flour and Rice Mills at Zoo Road Gauhati, as they happened to be partners of the said Mill. The orders of detention were attacked, on the insufficiency of particulars given in one of the grounds of detention. The said ground supplied to the petitioners in that case was that they were responsible for unauthorised milling of paddy in their Rice Mills and smuggling of the resultant rice to Meghalaya for earning undue profit. The quantities of paddy and rice seized from the Mills from time to time were specified but no particular instances of the unauthorised milling or smuggling of rice to Meghalaya were given. The majority Court held that the constiutional requirement of Article 22(5) will not be satisfied unless the detenu is given atleast opportunity to make representation against the detention and no opportunity to make representation can be effective unless the detenu is furnished with adequate particulars of the ground for detention. If one of the grounds communicated to the petitioner is found to be vague, the detention order must be pronounced to be bad and if the ground communicated to the detenu is vague, the fact that the detenu could have but did not ask for further particulars is immaterial. Mr. Justice Mathew speaking for the majority Court referred to with approval the decision of the Supreme Court in Atma Ram Sridhar Vaidya's case : 1951CriLJ373 where the majority decision was that the detenu has the right to be furnished with full particulars to make an effective representation. It is no doubt correct, as rightly contended by the learned advocate for the petitioner that, the grounds must not bs vague enough so as to deprive the detenu of his constitutional right to make effective representation. The sufficiency of particulars are expected from the detaining authority only with a view to ascertain whether the grounds are vague or not. The vagueness of the grounds cannot be inferred from some further facts stated in the affidavit-in-reply. We have, therefore, to consider whether the grounds as given by the detaining authority were sufficient in their particulars so that the detenu could have an opportunity to make effective representation. The detenu was told that on 16th August, 1974 eight tins of some unknown chemicals of foreign origin were seized at the Surat Railway Station from amongst the parcels of the firm carried by its employee for transportation to Bombay. It cannot be said that the detenu could not have made an effective representation that the tins did not contain any chemicals or that they were not of foreign origin. It is no doubt true that sufficient particulars mast be furnished to the detenu so that he may be able to make an effective representation. But in the case before us, we do not think that the grievance of the detenu is justified that the particulars were not precise and sufficient enough in ground No. 2 so that he is deprived of the opportunity to make an effective representation before the Board and, therefore, his constitutional right guaranteed under Article 22 of the Constitution is violated. In ground No. 2, it has been further stated that the detenu was reluctant to convey the details of the consignor. If the three pertinent facts which constitute this ground No. 2 are borne in mind, it cannot be urged successfully that sufficient particulars were not furnished or that the detaining authority could not have reasonably reached the conclusion that it was detenu who was indulging in smuggling of these goods.

12. The learned advocate of the petitioner made a grievance that it has not been stated that what was the exact nature of the chemicals or that it was imported without permit as required under Section 3 of the Import and Export (Control) Act, 1947 read with Clause 3 of the Import (Control) Order, 1955 read with item 22, Part V of Schedule 1 to the said imports (Control) Order, 1955. The learned advocate, on behalf of the petitioner, therefore, submitted that unless the detenu is told about the exact nature of the chemicals and that they were brought without the permit as required under the relevant Acts and Rules thereunder, it would not be sufficient to allege merely that the chemicals of foreign make were found in the tins seized on that day at Surat Railway Station from amongst the parcels carried by the employee concerned of the firm in which the detenu was a partner. We do not think that this contention of the learned advocate on behalf of the petitioner is well founded. The very fact that the detenu had been told that on 16th August 1974 these eight tins were seized from amongst the parcels carried by his firm for transportation to Bombay and that they contained chemicals of foreign make regarding the source of which the detenu was not eager and willing to explain is sufficient, in our opinion, to bring home to the detenu what was the nature of customs offence the authorities thought the detenu to have committed. The learned advocate of the petitioner, therefore, attempted to persuade us to hold that on the reading of the ground itself the allegation that eight tins seized contained unknown chemicals of foreign make is a contradiction in terms inasmuch as if the authority did not know what was the nature of the chemicals, it could not have said that it was either of indigenous make or of foreign make and to that extent, therefore, there is clear non-application of mind on the part of the detaining authority. This submission urged on behalf of the petitioner about the non-application of mind is, in our view, slightly misconceived. The detenu had been told that what has been found in the tins seized from the possession of the employee of the firm of which he was a partner was chemicals the exact nature of which was unknown but it was of foreign make. The gist of the prejudicial activity attributed to the detenu is that the tins which were seized contained chemicals of foreign make. The ignorance of the detaining authority as to what was the exact nature of the chemicals would not be material in determining whether the chemicals were of indigenous make or of foreign make. It was strenuously contended on behalf of the petitioner that if the detaining authority did not know whether the chemicals contained in the tins seized was of indigenous make or of foreign make, it could not have been possible for the authority to say emphatically that the material found in the tins seized was of foreign make. We are not inclined to agree with the learned advocate on behalf of the petitioner because the absence of the knowledge about the exact nature of a particular article or thing would not necessarily lead to an inference that one cannot say whether' it is of indigenous make or of foreign make. It may be that ultimately the detenu may succeed in establishing that the material seized was not of foreign make, or, if it was so, it was brought under a valid permit under the relevant Act. The contention that to that extent there was non-application of mind on the part of the detaining authority, therefore, cannot be accepted. In order that the detenu is assured of his right to make effective representation, what is required from the authorities detaining him is to furnish sufficient particulars of the prejudicial activity attributed to him so as to bring home the gist of that offence. In our opinion, the facts which constitute ground No. 2 give sufficient indications of the prejudicial activity attributed to the detenu. We, therefore, cannot agree with the learned advocate of the petitioner that either ground No. 1 or ground No. 2 was vague so as to deprive the detenu of his constitutional right of making effective representation.

13. The last contention urged on behalf of the detenu was that on these grounds the detaining authority could not reasonably have reached the conclusion that the detenu was the owner of the goods and he was indulging in the prohibited activity of smuggling. As discussed above, we think that this contention is also not justifiable because the basic imperative of proof beyond reasonable doubt does not apply to the 'subjective satisfaction' component of detention for reasons of internal security vide Golam Hussain Alias Gama v. Commissioner of Police, Calcutta and Ors. A.I.R. 1974 SG 1336. The only requirement about which the Court must be satisfied in order to uphold the detention order is whether on these grounds the detaining authority could have reasonably reached the conclusion, which he did in the present case, namely, that it was the detenu who was indulging in the smuggling of prohibited goods. We do not think in the facts and circumstances of this case that the detaining authority could not have reasonably taken this view that having regard 'to the overall consideration of all the circumstances involved in this matter and more particularly having regard to the fact that the detenu was not able to explain the source from which these goods were acquired by the detenu or came in his possession, the detenu was the owner of the goods and that he was indulging in the activities of smuggling. These are the only contentions which have been raised and in the view of the matter which we are taking, we are of the opinion that there are no grounds which have been made out which would justify this Court in exercise of its jurisdiction to interfere with the impugned order of detention.

The result is that this petition must fail and is dismissed. There should be no order as to costs.

14. Mr. Daru, the learned advocate on behalf of the petitioner, makes an oral application to grant leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution of India. We do not think any substantial question of law of general importance is involved in this matter and, therefore, the application stands rejected.


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