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Karsan Hira Vadhia Vs. K.S. Dilipsinhji, Addl. Secretary to Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR952
AppellantKarsan Hira Vadhia
RespondentK.S. Dilipsinhji, Addl. Secretary to Government of India and ors.
Cases ReferredBalbir Singh v. The State (supra
Excerpt:
.....are not required to collect all such documents from such proceedings and place them before the detaining authority. the earlier observations at para 9 clearly go to show that the sponsoring authority is not expected to go and collect documents from other proceedings. who was speaking for the supreme court bench after referring to the case of 1975crilj12 (supra) came to such a conclusion on the facts of this particular case where it was clearly found that the circumstance favourable to the detenu was deliberately not placed before the detaining authority, that his subjective satisfaction was vitiated. we would, of course, like to add here that the sponsoring authority is not required to go and search for such documents which might have been produced before some court, or some other..........of this court reported in kurjibhai dhanjibhai patel v. state of gujarat 26(1) g.l.r. 85. the division bench has in the above case observed that notice to show cause in adjudication proceedings and reply to the same are documents relating to adjudication proceedings which are quite separate and independent proceedings and, therefore, not required to be placed before the detaining authority. the division bench has extracted the observations of the supreme court in the case of smt. bhagwati v. the administrator and ors. in criminal writ petition no. 7635 of 1981 decided on 9-12-1981 and its observations with regard to reply to the show cause notice are based on those observations of the supreme court. the observations of the supreme court which are extracted by the division bench are.....
Judgment:

J.P. Desai, J.

1. (His Lordship after stating the facts of the case, further observed:)

3. The position of law is that a document which is in favour of the detenu or which is likely to tilt the balance in favour of the detenu or tilt the balance one way or the other is required to be placed before the detaining authority and if that is not done, the subjective satisfaction of the detaining authority will be vitiated. If a statement made by the detenu before the customs authorities is placed before the detaining authority for considering whether the detention order should be passed, it is necessary that it should be brought to the notice of the detaining authority that the detenu had retracted the said confessional statement and if that has not been done, it will naturally vitiate the subjective satisfaction of the detaining authority. This is what is laid down by the Supreme Court in the case of Ashadevi v. Shivraj and Anr. A.I.R. 1979 S.C. 447. This position of law is not even disputed by the learned advocates appearing for the respondents in the present petitions. The stand of the respondents, however, is that the show cause notice was issued in an independent proceedings and reply to the same was also sent in those independent proceedings and, therefore, the reply to the show cause notice was not required to be placed before the detaining authority and in support of the said contention, the respondents rely heavily upon the decision of this Court reported in Kurjibhai Dhanjibhai Patel v. State of Gujarat 26(1) G.L.R. 85. The Division Bench has in the above case observed that notice to show cause in adjudication proceedings and reply to the same are documents relating to adjudication proceedings which are quite separate and independent proceedings and, therefore, not required to be placed before the detaining authority. The Division Bench has extracted the observations of the Supreme Court in the case of Smt. Bhagwati v. The Administrator and Ors. in Criminal Writ Petition No. 7635 of 1981 decided on 9-12-1981 and its observations with regard to reply to the show cause notice are based on those observations of the Supreme Court. The observations of the Supreme Court which are extracted by the Division Bench are as follows:

Nor do we see how the fact that a show cause notice was issued by the Customs authorities to the petitioner's husband would be relevant in so far as the detention is concerned. It could not, in our opinion, influence the determination of the question of detention either way.

We have looked into the unreported decision of the Supreme Court in the case of Smt. Bhagwati (supra). It appears from the judgment of the Supreme Court that it was contended that even though the customs authority had issued a show cause notice to the detenu, information on that point was suppressed from the State Government although it was a vital factor which would have influenced the mind of the detaining authority or that of the State Government one way or the other. While dealing with this contention the Supreme Court has made the above observations. The Supreme Court has nowhere referred to the reply to the show cause notice. It appears that the observations were made by the Supreme Court in that case in the context of the facts of that case. The Supreme Court cannot be said to have laid down that in no case a show cause notice would influence the decision of the detaining authority. The Supreme Court has observed with regard to the facts of that particular case that the show cause notice was not likely to influence the decision of the detaining authority. It is difficult to read this judgment of the Supreme Court as laying down that a notice to show cause is not relevant simply because it is a part of independent proceedings. It is difficult to read the judgment of the Supreme Court as indicating that even if a document is of vital importance likely to influence the decision of the detaining authority one way or the other, it is not to be forwarded to the detaining authority even if the same has come to the notice of the customs authorities or is within their normal reach.

4. The Division Bench which decided the case of Kurjibhai Dhanjibhai (supra) has observed at para 10 at page 92 that for the purpose of reaching subjective satisfaction of the detaining authority it was not necessary for the sponsoring authority to send the show cause notice and the reply to the show cause notice which were meant for adjudication proceedings and which were the detenu or somebody on his behalf sending the same to the customs authorities. These observations, if read in isolation, would convey that in the opinion of the Division Bench, even if a reply to the show cause notice received by the adjudicating authority which may also be sponsoring authority is a document of vital nature likely to influence the decision of the authority, it was not required to be forwarded to the detaining authority simply because it is a part of separate and independent proceedings. They would also mean that the Division Bench wanted to convey that even if an application made to a Court or any other authority containing statements which are likely to influence the subjective satisfaction of the detaining authority comes to the notice of the sponsoring authority either on account of Court issuing a notice to the customs authorities or the detenu or somebody on his behalf sending the same to the customs authorities, then also the same is not required to be forwarded to the detaining authority. We do not think that the Division Bench intended to lay down such a ratio.

5. The Division Bench which decided the above case of Kurjibhai Dhanjibhai (supra) has listed the documents which were produced in that case in three categories, viz. (1) the documents pertaining to the adjudication proceedings; (2) the documents which are before the other judicial authorities or other authorities; and (3) the documents which were before the sponsoring authority. It is then observed by the Division Bench that with regard to the first type of documents, they are filed in independent proceedings. The Division Bench has then made some discussion about criminal proceedings. It has observed that it may so happen that applications for bail might be filed, in one or the other Court by the detenu or his friends and proceedings may also be filed in the High Court and while notice might be issued to the State Government as well as the customs authorities in some of those cases, some might be summarily dismissed and the authorities may not even know as to what statements were made in those proceedings and the customs authorities are not required to collect all such documents from such proceedings and place them before the detaining authority. The Division Bench has then observed that it is sufficient to say that the criminal prosecution or the adjudication proceedings are totally independent proceedings and therefore, it is not necessary that the documents which are collected for the purpose of adjudication or the documents which come into existence because of the criminal prosecution are required to be collected for the purpose of sending them to a person who ultimately forms an opinion whether a person is required to be detained or not. If one were to literally interprete these observations of the Division Bench, then it would mean that in the opinion of the Division Bench, adjudication proceedings and criminal proceedings are independent proceedings to such an extent that even if the sponsoring authority or the customs authorities come to know about the existence of those documents, even then they are not expected to forward them to the detaining authority. The Division Bench, in our opinion, with respect, could not have intended to lay down and has not laid down such a ratio. The earlier observations at para 9 clearly go to show that the sponsoring authority is not expected to go and collect documents from other proceedings. We have, therefore, to read the above observations in that context and say that what the Division Bench wanted to convey was that if some documents are produced in some independent proceedings such as adjudication proceedings or criminal proceedings and they are not brought to the notice of the customs authorities or they are not within the normal reach of the customs authorities, then they are not expected to search for such documents and collect them and then forward the same to the detaining authority. The Division Bench has made this position very clear while discussing the decision of the Supreme Court in the case of Ashadevi v. Shivraj (supra). The Division Bench after referring to the ratio of the decision of the Supreme Court in the case of Ashadevi v. Shivraj (supra) observed as follows at para 17 at page 96:

As we have already observed earlier that if any circumstance which comes to the notice of the customs authorities is in favour of the detenu and is suppressed and is not brought before the detaining authority, then it certainly vitiates the subjective satisfaction and, therefore, Tulzapurkar, J. who was speaking for the Supreme Court Bench after referring to the case of : 1975CriLJ12 (supra) came to such a conclusion on the facts of this particular case where it was clearly found that the circumstance favourable to the detenu was deliberately not placed before the detaining authority, that his subjective satisfaction was vitiated.

6. On going through the whole of the judgment of the Division Bench in the case of Kurjibhai v. State (supra), we are not inclined to accept the contention raised on behalf of the respondents in this regard based on the decision of the Division Bench in the case of Kurjibhai v. State (supra).

7. In our opinion, it cannot be said as a general rule that in all cases, whenever it is shown that a show cause notice or its reply is not placed before the detaining authority or is not considered by the detaining authority, ipso facto the detention order will become invalid. But at the same time it cannot also be said that even if the show cause notice or reply to the show cause notice is a document favourable to the detenu or is likely to tilt the balance one way or the other, then also non-placing of the same will not vitiate the order of detention. If in a given case it is shown in reply to the show cause notice that the earlier statement made by the detenu was retracted or colour of the statement is wholly changed or the detenu has fully explained his possession of contraband articles and has established that they were legally acquired, then depending upon the facts and circumstances of the case it could constitute a vital and material fact and such a document has to be placed before the detaining authority. We would, of course, like to add here that the sponsoring authority is not required to go and search for such documents which might have been produced before some Court, or some other authority, but they are bound to forward to the detaining authority all such documents which are actually brought to their notice or which are within their normal reach. This appears, in our opinion, to be the correct position of law and what we hold is not in any way in conflict with the ratio of the decision of the Division Bench of this Court in the case of Kurjibhai v. State (supra). We may mention here that the decision of the Bombay High Court in the case of Balbir Singh v. The State in Criminal Application No. 1755 of 1981 decided by the Division Bench of the Bombay High Court on 16-12-1981 was cited before the Division Bench of this Court wherein the Division Bench had observed that the show cause notice and the reply to the show cause notice were absolutely essential for the detaining authority to consider and the detention was liable to be quashed on that ground. A decision of the Delhi High Court in the case of Rajendraprasad Ranglal Soni v. Union of India, etc, in Criminal Writ No. 130 of 1983 decided by a Division Bench of the Delhi High Court on 15-12-1983 was also cited before the Division Bench of this Court. The Division Bench has extracted the following observations of the Delhi High Court made in that case:

There is no explanation coming forth either in the counter affidavit filed on behalf of the respondents or; from the record as to why the show cause notice dated 27th May, 1983, and the reply of the detenu dated 18th July. 1983 were not placed before the detaining authority to take a view either way after perusal of these documents.

After referring to the above decisions, one of the Bombay High Court and another of the Delhi High Court, the Division Bench referred to the decision of the Supreme Court in the case of Smt. Bhagwati v. The Administrator and Ors. (supra) and after referring to the observations of the Supreme Court pertaining to the show cause notice observed that. the pronouncement of the Supreme Court impliedly overrules the observations made by the Bombay and Delhi High Courts. We agree that it cannot be said as a general rule that whenever a show cause notice or reply to the show cause notice is not brought to the notice of the detaining authority, the detention order will always be vitiated. But at the same time, it is not possible to say that even if the notice to show cause or reply to the show cause notice are documents of vital importance likely to influence the decision of the detaining authority one way or the other, then also they are not to be forwarded to the detaining authority simply because they form part of independent proceedings. The observations of the Division Bench which decided the case of Kurjibhai Dhunjibhai (supra) which are reproduced by us in the earlier part of this judgment while referring to the case of Ashadevi v. Shivraj (supra) go to show that if any circumstance which comes to the notice of the customs authorities is in favour of the detenu and is suppressed and is not brought before the detaining authority, then it certainly vitiates the subjective satisfaction. The Division Bench has used the words 'customs authorities' and not 'sponsoring authority'. In our opinion it will depend upon the facts and circumstances of each case and the nature and contents of the documents that will be decisive of the question whether non-placing of the same was likely to tilt the balance one way or the other. It, of course, follows that the customs authorities cannot be expected to produce any such documents even though they may be favourable to the detenu or likely to tilt the balance one way or the other if they are not in their know or are not within their normal reach. Mr. Karmali for the petitioners placed in our hands a cyclostyled copy of an unreported decision of the Bombay High Court in Criminal Application No. 2825 of 1981 decided by a Division Bench of that Court on 8-3-1982. The said Division Bench, after referring to the decision of the Bombay High Court in Balbir Singh v. The State (supra) as also the decision of the Supreme Court in the case of Smt. Bhagwati (supra), has taken the same view which we are inclined to take.


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