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Thulasiammal and ors. Vs. Joint Secretary to the Government of India - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberW.P. 12014 etc. of 1984
Judge
Reported in1987(30)ELT415(Mad)
ActsConservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3; Constitution of India - Articles 14, 20(3), 22, 22(4) and 134; Constitution (Forty-fourth Amendment) Act, 1978 - Sections 3; Code of Civil Procedure (CPC), 1908 - Sections 13; Indian Penal Code (IPC), 1860 - Sections 193 and 228; Sea Customs Act, 1878 - Sections 171A; Customs Act, 1962 - Sections 108
AppellantThulasiammal and ors.
RespondentJoint Secretary to the Government of India
Appellant AdvocateM.R.M. Adbul Kareem, Adv.
Respondent AdvocateP. Rajamanickam, Adv.
Cases ReferredK. Srinivasan v. The Collector of Customs
Excerpt:
customs - detention - section 3 of conservation of foreign exchange and prevention of smuggling act, 1974, articles 14, 20 (3), 22, 22 (4) and 134 of constitution of india, section 13 of code of civil procedure, 1908, sections 193 and 228 of indian penal code, 1860, section 171a of sea customs act, 1978 and section 108 of customs act, 1962 - petition questioning validity of detention order - petitioner contended that section 108 ultra vires to article 21 - section 108 only enables gazetted officer of customs to call upon person to give evidence or to produce any documents - section 108 does not enable officer to take person into custody or force him to give any involuntary statement - in case person appears for interrogation in pursuance of summons issued under section 108 he shall be.....orderv. ramaswami, j.1. in this batch of cases, the validity of the orders of detention made under section 3(i) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 is questioned. the first contention of the learned counsel for the petitioners was that the constitution of the advisory board under section 8(a) of the act is violative of article 22(4) of the constitution and that therefore the continued detention of the detenue for a period more than two months from the date of detention is illegal. section 8 of the act dealing with advisory board states that :- 'for the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of article 22 of the constitution, - (a) the central government and each state government shall, whenever.....
Judgment:
ORDER

V. Ramaswami, J.

1. In this batch of cases, the validity of the orders of detention made under section 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is questioned. The first contention of the learned counsel for the petitioners was that the constitution of the Advisory Board under Section 8(a) of the Act is violative of Article 22(4) of the Constitution and that therefore the continued detention of the detenue for a period more than two months from the date of detention is illegal. Section 8 of the Act dealing with Advisory Board states that :-

'For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of article 22 of the Constitution, -

(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in Sub-clause (a) clause (4) of article 22 of the Constitution.'

2. Article 22(4) of the Constitution reads as follows :-

'No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless -

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention :

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).'

3. It is not the case of the petitioners that the constitutions of the Advisory Board under Section 8 of the COFEPOSA is not in accordance with the above provision in Article 22(4) of the Constitution. What was contended is that by section 3 of the Constitution (Forty-fourth Amendment) Act, 1978, which received the assent of the President of April 30, 1977, a new clause for the existing clause (4) of Art. 22 was substituted and that the constitution of the Advisory Board is not in accordance with that provision. Section 3 of the Constitution (Forty-fourth Amendment) Act reads as follows :-

'3. Amendment of Article 22 : In article 22 of the Constitution :-

(a) for clause (4), the following clause shall be substituted, namely :-

(4) No Law providing for preventive detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention :

Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court :

Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (a) of clause (7).

Explanation :- In this clause, 'appropriate High Court' means -

(i) in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court for the Union Territory of Delhi;

(ii) in the case of the detention of a person in pursuance of an order of detention made by the Government of any State (other than a Union Territory), the High Court for that state; and

(iii) in the case of the detention of a person in pursuance of an order of detention made by the administrator of a Union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by Parliament in this behalf;

(b) in clause (7), -

(i) sub-clause (a) shall be omitted;

(ii) sub-clause (b) shall be re-lettered as sub-clause (a) and

(iii) sub-clause (c) shall be re-lettered as sub-clause (b) and in the sub-clause as so re-lettered, for the words, brackets, letter and figure 'sub-clause (a) of clause (4)', the word, brackets and figure 'clause (4)' shall be substituted.'

However, section 1(2) of the Constitution (Forty-Fourth Amendment) Act provided that the Act 'shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.'

4. As may be seen from the original clause (4) of the Article 22 of the Constitution and the provisions of Section 3 of the Constitution (Forty-fourth Amendment) Act, the provision requiring the Advisory Board to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court and that the Chairman shall be a serving Judge of the High Court and the other members shall be the serving or retired Judges of any High Court, is absent in the existing clause (4) of Article 22. Under the existing provisions, persons who are qualified to be appointed as Judges of a High Court are eligible to be appointed as members of the Advisory Board. The need for a recommendation of the Chief Justice of the appropriate High Court in the matter of appointment of members of the Advisory Board, is also not present in the existing clause. According to the learned counsel for the petitioners, this change is not of mere form, but is of substance and in fact he relied on an observation of the Supreme Court reported in A. K. Roy v. Union of India : 1982CriLJ340 to buttress this argument. While considering the plea of discrimination under Article 14 of the Constitution on the ground that while the detenus were not permitted to take the aid of a legal practitioner, the department was permitted to be represented by their officers before the Advisory Board, the Supreme Court observed :-

'We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely 'qualified to be appointed' as High Court Judges may have to do a little home-work in order to appreciate it.'

Be that as it may, what we find is, the Central Government have not notified and brought into force Section 3 of the Constitution (Forty-Fourth Amendment) Act in exercise of their powers under Section 1(2) thereof. The learned counsel contended that merely six years had lapsed since the Constitution (Forty-Fourth Amendment) Act received the assent of the President; but the Government of India had neither chosen to bring into force Section 3 of the Act nor amended the provisions of Section 8 of the COFEPOSA Act. The delay in bringing into force Section 3 is so unreasonable as to make one feel that the Government have in fact nullified the will of the Parliament and in such circumstances, it is the argument of the learned counsel, that we can assume that Section 3 also had been brought into force and test the validity of Section 8 of the COFEPOSA Act in the light thereof, or, in the alternative the learned counsel contended that the Advisory Board constituted as in Section 3 of the Constitution (Forty-Fourth Amendment) Act shall be treated as the only reasonable way of constituting the Advisory Board and unless the Board consists of a sitting Judge of a High Court as Chairman and two Judges, whether sitting or retired, as members of the Board, the constitution of the Board itself would be treated as unjust and unreasonable. In this connection, the learned counsel did not want us to rely on the composition of the present Board in this State under the COFEPOSA Act, but generally as it should be looked at as a binding law and unless the law itself authorises the composition of such Board, the provision would be illegal. Almost identical contentions were raised in the decision reported in A. K. Roy v. Union of India : 1982CriLJ340 . That was a case relating to preventive detention under the National Security Ordinance. At the time when the case came up for consideration before the Supreme Court, almost about 2 1/2 years was over since the passing of the Constitution (Forty-Fourth Amendment) Act. The Constitution (Forty-Fourth Amendment) Act received the assent of the President, as already stated, on the 30th April, 1977. Most of the provisions of the 44th Amendment were brought into force with effect from June 20, 1979 by a notification issued by the Central Government of June 19, 1979. The rest of the provisions of the Amendment were brought into force with effect from August 1, 1979 except Section 3 whereby Article 22 was amended, which has not been brought into force. After upholding the validity of Section 1(2) of the 44th Amendment on the ground that the expression of legislative or constitution will as regards the date of enforcement of the law or Constitution is an integral part thereof, the Supreme Court considered the effect of non-implementation of the 44th Amendment Act in so far as it bears upon the constitution of the Advisory Board and held :-

'We may now take up for consideration the question which was put in the fore-front by Dr. Ghatate, namely that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of S. 3 of the 44th Amendment Act into force. That Amendment received the assent of the President on April 30, 1977 and more than two and half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered Judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we would show our disapproval of it by issuing a mandamus. The court's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that power : positively by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting. If it were permissible to the Court to compel the Government by a mandamus to bring a constitutional amendment into force on the ground that the Government has failed to do what it ought to have done, it would be equally permissible to the Court to prevent the Government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force. We quite to see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing into force the provisions of S. 3 of the 44th Amendment, after the passage of two and half years. But the remedy, according to us, is not the writ of mandamus. If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment, it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon the standard or test prescribed by the Parliament. But, the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether S. 3 of the Amendment Act should be brought into force. This is particularly so when the failure of the Central Government to bring that section into force so far can be no impediment in the way of the Parliament in enacting a provision in the National Security Act on the lines of that section. In fact, the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it. It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of S. 3 of the 44th Amendment into force. The question as to the impact of that Section which, though a part of the 44th Amendment Act, is not yet a part of the Constitution, will be considered later when we will take up for examination the argument as regards the reasonableness of the procedure prescribed by the Act.'

On the question as to whether the Court could issue a Writ of mandamus directing the Central Government to bring Section 3 of the 44th Amendment Act into force, the Supreme Court further observed :-

'We have said at the very outset of the discussion of this point that our decision on the question as to whether a mandamus should be issued as prayed for by the petitioners, should not be construed as any approval on our part of the long and unexplained failure on the part of the Central Government to bring S. 3 of the 44th Amendment Act into force. We have no doubt that in leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force, the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provisions into force. The Parliament having seen the necessity of introducing into the Constitution a provision like S. 3 of the 44th Amendment, it is not open to the Central Government to sit in Judgment over the wisdom of the policy of that Section. If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament.'

However, the Supreme Court made these forcible observations in paragraph 54 of its judgment :-

'It is in this background that the Parliament conferred upon the Central Government the power to bring the provisions of the 44th Amendment Act into force. The Parliament could not have visualised that, without any acceptable reason, the Central Government may fail to implement its constituent. We hope that the Central Government will, without further delay, bring S. 3 of the 44th Amendment Act into force. That section, be it remembered, affords to the detenu an assurance that his case will be considered fairly and objectively by an impartial tribunal.'

5. The learned counsel for the petitioners referring to this portion of the Judgment contended that inspite of the hope expressed by the Supreme Court, the provision had not been brought into force. Even so, nothing can be done by the Courts. It is for the Parliament, if at all, to take note of that fact, and bring into force the provisions. We are, therefore, unable to accept the contention of the learned Counsel that either Section 8 relating to the constitution of the Advisory Board is in any way ultravires or that we can issue any Writ of mandamus directing the Central Government to bring into force the provision in Section 3 of the 44th Amendment Act.

6. The next argument of the learned counsel for the Petitioners is that section 108 of the Customs Act, 1962, is ultra vires the provisions of Article 21 of the Constitution. Section 108 reads as follows :-

'108(1) Any Gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.

(2) A summons to produce documents or other thing may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required :

Provided that the exemption under Section 13 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this Section.

(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code.'

According to the learned counsel, the provisions of Section 108 enable the deprivation of personal liberty at the will and discretion of the customs authorities. A lot of assumptions have been made by the learned counsel in making this submission. He assumed that Section 108 enables the customs authorities to detain or take any person into custody and also enables them to compel the person to make incriminating statement or involuntary statement without prescribing a reasonable, fair and just procedure. According to the learned counsel, unless the Section itself provides for preventive safeguards against getting involuntary statements or incriminating statements and providing for the place, time and other opportunities relating to interrogation and examination, the provision could not be said to be reasonable. Number of decisions have been relied on by the learned counsel in support of his argument that the 'procedure established by law' under which a person is deprived of his personal liberty, shall not be arbitrary, unfair or unreasonable. Since we do not think that we called upon to refer to those judgments in detail, we will merely give reference to those authorities. They are :-

Haroom Haji v. State of Maharashtra : [1968]2SCR641 ;H. H. Advani v. State of Maharashtra : 1971CriLJ5 ;Maneka Gandhi v. Union of India : [1978]2SCR621 ;Sevantilal v. State of Maharashtra : 1979CriLJ645 ;Nandini Satpathy v. P. L. Dani : 1978CriLJ968 . However, we may note the decision in Ramesh Chandra v. State of W.B. : 1970CriLJ863 which related to an enquiry under Section 171A of the Sea Customs Act, 1878, corresponding to Section 108 of the Customs Act, 1962. On the scope and limits of interrogation under Section 171A of the Sea Customs Act, the Supreme Court held :-

'The remaining contention that a person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself, and the evidence if any collected by examining him under Section 171A of the Sea Customs Act is inadmissible has, also no substance. By Article 20(3) of the Constitution a person who is accused of any offence may not be compelled to be a witness against himself. The guarantee is, it is true, not restricted to statements made in the witness box. This court in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 observed at p. 37 (of SCR) = (at p. 1817 of AIR) -

'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.'

But in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person it has to be established that when he made the statement sought to be tendered in evidence against him, he was a person accused of an offence. Under Section 171A of the Sea Customs Act, a Customs Officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by clause (3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or make statements and to produce such documents and others as may be required. The expression 'any person' includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or in suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an inquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provision of the Sea Customs Act with the Commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs. When collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before Magistrate. In Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) , the court held that a person against whom an order for confiscation of goods had been made in proceedings taken by Customs Officer under Section 167 of the Sea Customs Act and was subsequently prosecuted before a Magistrate for offence under the Foreign Exchange Regulation Act, 1947, could not plead the protection of Article 20(2), since he was not 'prosecuted' before the Customs authorities, and the order for confiscation was not a 'punishment' inflicted by a Court or judicial tribunal within the meaning of Article 20(2) of the Constitution and the prosecution was not barred.'

The Supreme Court further held that a Customs Officer while exercising the powers under the Customs Act, 1962 also is not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Evidence Act. We may also note that Section 108 as such does not enable the officer of the Customs to take a person into custody or force him to give any involuntary statement. If a statement was obtained under coercion or threat that may vitiate the statement itself on the ground that it is not voluntary or it was not his statement. In the circumstances, therefore, the section itself could not be held to be violative of Article 21 of the Constitution. It only enables a gazetted officer of the Customs to call upon a person to give evidence or to produce any document. If any particular statement obtained by an officer of the Customs in any particular case is asserted as not a voluntary statement and that statement is proved to be not voluntary, a detention order could not rely on such statement. If the detention order relies on such statements, the order itself would be vitiated subject to the provision in Section 5A of the COFEPOSA Act.

7. We may in this connection point out that similar view was taken by a Full Bench of this court in Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, Public Dept., etc., (1983 L. W. Crl. 289).

'If, in a given case, the Customs Official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding twenty-four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril, because Ss. 107 and 108 of the Customs Act do not authorise the Officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession might have been obtained from extorted mal-treatment or induced by improper means.'

We, therefore, do not agree with the contention of the learned counsel for the petitioners that Section 108 is violative of Article 21 of the Constitution.

8. On merits, the learned counsel for the petitioners contended that the detenus were taken custody of by the customs officials and detained for prolonged periods exceeding more than 24 hours and were kept in closed doors as captive prisoners, surrounded by officials and their statements were obtained and, therefore, those statements could not be relied on. We are not satisfied that there is any factual basis for such statement. We find that each of the detenus were examined on number of days and not on any one particular day alone. It is not even the case of the petitioners that the detenus were detained by the customs officials during night or any interrogation was done during night except in the case of detenus concerned in W.P. 12377 of 1984. We have carefully looked into the records relating to the detenu in W.P. 12377 of 1984 who complained that on the 26th night, he was kept in custody of the customs officials. We are satisfied that he was examined on the 25th July, 1984 during day time and he went home agreeing to appear on the 26th and he did appear on the 26th. There is also a statement to the effect that he went home and returned on the next day and gave evidence for a few minutes on the 27th and only thereafter he was arrested and produced for remand before a Magistrate. In the circumstances, therefore, we cannot accept the contention of the learned counsel that any of the detenus were forcibly detained during nights or that any statements were obtained from them forcibly. We may also point out that if a person appears for interrogation in pursuance of a summons issued under Section 108 of Customs Act, he shall be deemed to be complying with the notice issued and cannot be considered to have been taken custody off by the customs officials. For any number of days the enquiry may go on, but if it was done within reasonable hours, the person could not be considered to be in custody. Nor even during the time he was interrogated, can he be considered to be under any custody much less in illegal custody. We are therefore not persuaded to hold that the detention order is vitiated by any such illegality or illegal custody.

9. Learned counsel then pointed out that in his petition dated 30th July, 1984, the detenu in W.P. 12377 of 1984 complained to the Assistant Director that he was forced and coerced to sign a statement keeping him and interrogating him throughout the night and that he had not even been furnished with a copy of the statement. He further asserted that the statement he gave was not given in his normal state of mind and was also not voluntary and requested that he may be given a copy of the statement. In the reply dated 6th August, 1984, the Assistant Director stated that the various allegations in the letter are totally false, that the statement given by him was voluntary and in his own hand-writing, that no harassment, threat or coercion was used, that he was treated with respect and that a copy of the statement will be given to him in due course. Learned Counsel for the petitioners took serious objection to this letter on the ground that he had complained of force and coercion in the matter of taking his statement on the part of the Superintendent of Customs; but the Assistant Director has denied the allegation and here the Assistant Director had not held any formal enquiry before he held that the allegations were false. We are enable to agree with the contention. The letter dated 30-7-1984 is addressed to the Assistant Director and he did not mention anything about the Superintendent of Customs forcing the detenu. He simply referred to his statement as not being that of free person and that was denied by the Assistant Director. In such matters, we also do not think that any big enquiry is needed or called for, since it is in the same office the enquiry is done. The Assistant Director is the immediate superior in that office. In the circumstances, therefore, there is no substance in the contention of the learned counsel that there is any violation of the principles of natural justice in denying the allegation of force or coercion during interrogation or taking of statement.

10. It is then contended by the learned counsel that the order of detention as part of the material the identification by various witnesses or persons who were examined by the customs authorities during investigation. According to the learned counsel, the procedure adopted in identifying the detenus in these cases were all contrary to law, unreasonable and unfair and that, therefore, that would vitiate the order of detention. The detenus were produced before the various persons whose statements were recorded and those persons were asked to state whether they know the detenus and when they mentioned about their names, they were asked as to how they came to know of them. At that stage of enquiry, the customs officials were naturally interested in knowing whether the persons giving statements know the detenus. Neither the Act contemplates nor any principles of natural justice require the detenus to be placed among a number of persons and the persons who gave the statements are all stated to be the land-lords of the premises where the detenus are said to have been carrying on their illegal activities and they have come and given evidence to say that they have let out the premises to the detenus and know them. The identification by these witnesses could not be said to be arbitrary or against any provisions of law. In fact, the learned counsel could not rely on any particular provision to show that the customs officials are bound to follow the procedure normally adopted in criminal cases, where the witnesses do not know the accused person and they were asked to identify with reference to the commission, of any particular offence.

11. It is then contended by the learned counsel that while identifying them, the customs officials showed photographs for the purpose of identification and copies of those photographs which are referred to in the order have not been given to the detenus. The photographs which are shown to the various persons whose statements were recorded are the photographs of four detenus and they must be having their own photographs. By the non-furnishing of these photographs, we do not think that any principles of natural justice is violated or any constitutional provisions requiring the furnishing of documents relied on had been violated.

12. It is then contended by the learned counsel that in order to establish that various bills and other documents relating to the export of these contraband goods were actually written by the detenus, the admitted writings of the detenus were sent to the Foresic Laboratory and their opinion was obtained. Though the copy of the report of the Forensic Laboratory was given to the various detenus, they were not given the particulars relating to the references made in those reports and that therefore they were in a handicap to send their representations and that vitiated the order of detention. First of all, factually this statement is not correct. In order report of the Forensic Laboratory, it is stated that the persons who wrote the writings marked S. 1 to S. 92 also wrote the writings marked as Q1, Q2, Q3, Q5 to Q11 and Q15 to Q31. The writing marked as S. 1 to 92 as also the writings marked as Q1, Q2, Q3, Q5 to Q11 and Q15 to Q31 were all furnished making them with reference to S series or Q series, to each one of the detenus. Therefore, it could not be stated that they do not know that S series or Q series relate to. But what is contended by the learned counsel is that they should have been furnishing with zerox copies or photostat copies of those documents so that they could compare where the writings are the same. We are unable to agree with this contention. We must point out that S series are documents which were in the possession of the various detenus and recovered during investigation. Those are bills, cheques, cheque-leaves and other documents. Q series are various writings of the detenus made to the dictation of the customs officials. When the typed copies of those are given to them they know that they are the statements written and signed by the detenus. If for any reason they wanted to compare, they should be have called for the originals or the photostat copies of those documents in order to make any representation. They have not asked for xerox copies of any of those documents. The learned counsel for the petitioners contended that there is an obligation on the part of detaining authorities to supply xerox copies and that the detenus need not call for or request for the same. We are unable to agree with this contention. What all Article 22(5) of the Constitution requires is that such of those basic documents relied on by the detaining authority should be furnished to detenus along with the ground of detention and if any further documents are required by the detenus, that also should be furnished in order to enable the detenu to submit his explanation against the order of detention. In the circumstances, therefore, this contention also has no force.

13. It is then contended by the learned counsel that one of the detenus by name K. Srinivasan filed a Writ Petition in this Court in W. P. No. 4447 of 1983 K. Srinivasan v. The Collector of Customs : Madras for the issue of a Writ of mandamus directing the Collector of Customs, Madras, or his officials to permit him to have legal assistance and his Advocate's presence during any interrogation or in the course of obtaining any statement from him in any proceedings arising out of the seizure of the some or all the 44 cases effected on 13-5-1983 by the Collector. Pending that Writ Petition, he also filed W.M.P. No. 6671 of 1983 praying for a temporary injunction restraining the Collector of Customs, or his officials from taking any proceedings against him in pursuance of the seizure of some or all the 44 cases effected on 13-5-1983. That W.M.P. Petition was dismissed by the learned single Judge of this Court which was confirmed in Writ Appeal No. 501 of 1983. K. Srinivasan v. The Collector of Customs, Madras, However, the said Srinivasan filed a Special leave petition to the Supreme Court in S.C.P. Civil No. 8835 of 1983. The order made in that petition by the Supreme Court reads as order as follows :-

'It has been stated by learned counsel for the respondent that the interrogation will be stopped till the disposal of these petitions. Counter affidavit will be filed on or the before 21-7-1983 and rejoinder, if any, be filed one week thereafter. The matters are adjourned and will be listed on 1-8-1983.'

But the matter was not listed. The interim order continued. According to the learned counsel for the petitioners, contrary to this direction of the Supreme Court that interrogation is to be stopped, the said Srinivasan, was interrogated extensively on 10th, 11th, 13th, 14th, 17th, 18th, 21st, 23rd, 24th, 25th and 27th August and 18th, 21st and 24th September 1984 and that statement was relied on and that vitiated the order. The correctness of this contention was disputed by the learned counsel for the respondents. He pointed out that the interrogation in August 1984 and September 1984, related to a different seizure and not with reference to the seizure that was subject matter of the S.L.P. Petition. As we have already noted the Writ petition specifically stated that the mandamus prayed for was with reference to the proceedings arising out of the seizure of some or all the 44 cases effected on 13-5-1983. The enquiry held in August and September 1984 related to the seizure effected in April 1984. It is true that in the course of such statement, the said Srinivasan has referred to some of his earlier activities of which one of them related to the 44 cases which were the subject matter of the earlier writ petition. But that was only a passing reference about his earlier involvement and not in any way relevant to the enquiry relating to the seizure in April 1984. We are therefore not satisfied that the statement recorded from Srinivasan has in any way vitiated the order of detention.

14. No other point is raised in these Writ petitions. Accordingly, they are dismissed.

15. The learned counsel for the petitioners made an oral request for leave to appeal to the Supreme Court, under Article 134 of the Constitution. So far as the validity of the provisions relating to the constitution of the Advisory Board is concerned, we have followed the judgment of the Supreme Court. Even in regard to the validity of Section 108 of Customs Act, we have relied on certain observations of the Supreme Court and there is no decision contra. Except to say that the consideration of the validity of section 108 Customs Act is pending before the Supreme Court, no other point is said to arise out of our judgment. We are not satisfied that this is a fit case for grant of leave to appeal to the Supreme Court. The request is accordingly rejected.


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