Criminal Appeal No 80 of 1988
From the Judgment and Order dated 20111986 of the Gujarat High Court in Spl
A No 886 of 1986
TU Mehta and MN Shroff for the Appellant
VA Bobde Mrs H Wahi and Mrs Kamini Jaiswal for the Respondents
The Judgment of the Court was delivered by SHARMA J
The order of detention of the respondent No 2 906 Mahendra V Shah passed under the  was challenged by his nephew respondent No 1 before the Gujarat High Court under Article 226 of the Constitution
By the impugned judgment the detention order was quashed
The State of Gujarat has impugned the High Court s decision by the present Special Appeal Application
Special leave is granted
The detention order was passed on the 20th of October 1984 but could not be served on the detenu earlier than 471986 as he was absconding
The grounds of detention served on him as mentioned in Annexure B state that information was received by the Customs staff of Ahmedabad on 2691984 that a notorious smuggler Juwansinh Jadeja had shifted his smuggling activites to the coast of Chorwad in Saurashtra and was working on behalf of two citizens of Pakistan
Information about Jadeja s main associates was also received
The authorities were informed that the gang was likely to land about 180 packages of contraband goods within a couple of days and vigilance activities were therefore stepped up
The officers further learnt that the modus operandi of the smugglers  gang would be to remove the goods to trucks and to cover them with cargo of vegetables and grains and then to drive away
An Ambassador car bearing registered No MRH 6595 which was earlier in the service of the respondent detenu a resident of Bombay was spotted in the late night of 2891984 and they suspected it to be on the road in that connection
They proceeded in the same direction and found a truck loaded with bags of vegetables
The truck was intercepted but the driver ran away
The Ambassador car was also passing by but on being signalled to stop it took a sharp turn and got away
The officers unsuccessfully chased it for some time
The suspicion of the officers was thus confirmed and they searched the truck and discovered the contraband goods
Two other vehicles a Jeep and another car also arrived and were stopped by the officers and several persons travelling therein including Jadeja were taken to the Excise Office for interrogation
Incriminating documents were recovered inter alia indicating that several other trucks were also involved
All available Customs and police officers thereafter became active and two other trucks were seized
They also found the Ambassador car MRH 6595 abandoned
The goods found in the first truck were all of foreign origin and were valued at over Rs68 lakhs
Similar contraband goods were discovered in the other trucks also
Later a fourth truck was also intercepted
The arrested persons 907 gave vital clues about the clandestine business of smuggling and named respondent Mahendra V Shah as being directly involved in the business
It was inter alia stated that Mahendra V Shah had gone to the coast where the goods were received
The grounds have mentioned the various activities of the detenu including the fact that he was travelling in the Ambassador car MRH 6595
We do not consider it necessary to mention here all the details of his activities
As stated earlier although the order of detention was made in October 1984 it could not be served on the detenu before July 1986 as he was absconding
On his arrest the writ application was filed by his nephew the respondent No 1
The other persons involved in the affair were also detained
These co conspirators made an application for bail on 2101984 and on the next day that is on 3101984 they filed an application before the Chief Judicial Magistrate Junagadh retracting some of their earlier statements
One of the points urged on behalf of the detenu was that the retraction by the aforesaid other persons co conspirators was not placed before the detaining authority and was therefore not considered by him
The High Court held that this point by itself vitiated the detention order
The other grounds urged were not considered on merits
It has been contended on behalf of the State that the second application dated 3101984 whereby the other accused persons retracted their earlier statements was also placed before the detaining authority and he had applied his mind thereto
It was pointed out that the said document was mentioned in the grounds Annexure B served on the detenu although it was not accurately described as a petition containing the retraction
The mis description was in the following words While arriving at the above satisfaction the Detaining Authority has taken into consideration the bail applications dated 2101984 and 3101984 filed jointly by Jayantilal Damji Thakker and nine others before the Chief Judicial Magistrate Junagadh  In paragraph 6 of the State s counter affidavit this fact was pointedly mentioned and it was stated that the mistake in the description was of drafting and the detaining authority had considered the same while passing the order of their detention and that there was no substance in 908 the point taken on behalf of the detenu
The stand of the State that the petition dated 3101984 was considered by the detaining authority appears to be right
The original file dealing with the detenu s case was produced in Court for our perusal and we found that the Home Minister State of Gujarat while passing the order for detention made a detailed note running in several paragraphs and in paragraph 2 he pointedly mentioned both the bail application dated 2101984 and the petition dated 3101984
The notes also show that he detaining authority correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could be in the circumstances given to it
The first point urged on behalf of the respondent must therefore be rejected
The error in the description of the document in the grounds cannot in the situation be said to have vitiated the order
Mr Bobde the learned counsel for the respondent contended that the plea of the State should be rejected in absence of an affidavit by the detaining authority
Although it is not an essential requirement of law the learned counsel proceeded but the Court in every detention case must insist on such an affidavit to be filed
It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf but it cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances
In the present case a further affidavit by Sri Pavitra Narayan Roy Chaudhary Deputy Secretary Home Department Special of the State of Gujarat was filed stating that the Home Minister Sri Prabodh Raval who was authorised under the Rules of Business framed under Article 166 of the Constitution to pass orders on behalf of the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court and he was therefore not available
Sri MT Parmar the then Deputy Secretary Home Department was fully conversant with the case and had filed his affidavit
The original file was produced before us to dispel any suspicion about the detaining authority having considered the document dated 3101984 and having felt satisfied that it was a proper case for detention of the respondent
In this background we do not attach much importance to the fact that the affidavit was not filed by the detaining authority personally
The next point urged by Mr Bobde was that it was necessary to have mentioned in the grounds Annexure B served on the detenu the fact that the detaining authority was of the view that not much 909 credence could be given to the statements in the petition dated 3101984
The state of the mind of the detaining authority while holding that much credence could not be given to the document should be treated to be a ground essential to be served on the detenu
Reliance was placed on the observations in PC Mehta vs Commissioner and Secretary Government of Kerala and others 1985 Supp SCC 144
The contention is that factual inference is included in the expression grounds and has to be expressly and specifically stated
We are afraid the assumption on which the argument is founded is not correct
So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction in this regard are concerned they are expressly stated in the grounds and there cannot be any grievance on that score
The objection of the respondent properly analysed comes to this that the reason why the detaining authority is not impressed by a particular piece of evidence or on the other hand the reason why he prefers to rely on any other evidence should be detailed in the grounds
Mr Bobde urged that if the respondent had known that the detaining authority did not attach much credence to the statements in the petition dated 3101984 he would have attempted to impress upon the relevant authorities to take a contrary view
We do not find any merit in this contention and hold that it is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately
Besides the recital in Annexure B that the detaining authority formed his opinion after consideration of the aforesaid document by itself clearly implied that he was not impressed by the statement therein
The detenu cannot therefore be heard to say that he was prejudiced in any manner
As mentioned above the points pressed on behalf of the respondents before us have been rejected
Mr Bobde has contended that several other questions also arise in this case which have not been dealt with by the High Court
He appears to be right
The impugned judgment states that several other questions were also raised which were not necessary to be considered as the writ application was succeeding on the first point
Now in view of our finding mentioned above it becomes necessary to decide the other questions also
In the circumstances we think that the case should go back to the High Court for further hearing
Accordingly the impugned judgment is set aside and the matter is remanded for further hearing and disposal of the case in accordance with law
NVK Appeal allowed


Summary:
 Respondent No 1 Jugal Kishore while driving a three wheeler scooter met with an accident with bus No DLP 3699 driven by Rai Singh respondent No 2 owned by Ms Delhi Janata Co operative Transport Policy Limited respondent No 3 and insured with the appellant
The Motor Accident Claims Tribunal Delhi awarded compensation in the sum of Rs10000 to respondent No1
On appeal the High Court enhanced the Compensation to Rs100000
This Court while granting special leave required the appellant to deposit the amount of compensation awarded by the High Court and permitted the respondent to withdraw the same making it clear that it shall not be refunded by him in the event of reversal of the decision of the High Court
The appellant contends that in view of the statutory provision contained in this behalf in clause b of sub section 2 of section 95 of the Act as it stood on the date of accident no award in excess of the statutory liability of Rs20000 could have been made against the appellant
The respondent on the other hand contends 1 Notwithstanding the provision contained in this behalf in clause b aforesaid it was open to the insurer to take a policy covering a higher risk than contemplated by clause b and consequently the said clause had to be read subject to the terms of the policy
In this connection the respondent relies on the words Commercial Vehicle comprehensive printed on the policy 911 and on the circumstance that the premium paid was higher than the premium of an Act only policy and urges that the liability of the appellant was unlimited
2 In view of sub section 6 of section 96 of the Act no Insurer to whom the notice referred to in sub section 2 thereof has been given is entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in sub section 1 thereof otherwise than in the manner provided for in sub section 2
On this basis it is urged that the appellant was not entitled to assert that its liability was confined to Rs20000 only inasmuch as this is not one of the defences specified in sub section 2 of section 96 of the Act
Allowing the appeal this Court  HELD 1 It is not obligatory for the owner of a vehicle to get it comprehensively insured for which a higher premium than for an act only policy is payable
Such comprehensive insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle insured
Comprehensive insurance of the vehicle and payment of higher premium on this score as was done in the instant case do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section 2 of section 95 of the Act
For this purpose a specific agreement has to be arrived at between the owner and the insurance company and additional premium paid
915C E 2 A perusal of the policy indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use of the vehicle has been confined to such amount as is necessary to meet the requirements of the Motor Vehicle Act 1939 which was at the relevant time Rs20000 only
An award against the appellant could not therefore have been made in excess of the said statutory liability
916F G 3 It is apparent from the words to avoid his liability used in sub section 6 of section 96 that the restrictions placed with regard to defences available to the insurer specified in sub section 2 of section 96 are applicable to a case where the insurer wants to avoid his liability
In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability in accordance with the statutory provisions contained in this behalf in clause b of sub section 2 of section 95 of the Act
917E F 912 4 This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof
This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly
The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasized
918C D 5 The attitude often adopted by the Insurance Companies as was adopted in this case is not to file a copy of the policy before the Tribunal and before the High Court in appeal
The claimants for compensation are invariably not possessed of either the policy or a copy thereof
In all cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy alongwith its defence
917G H 918B C Pushpabai Purshottam Udeshi vs Ranjit Ginning and Pressing Co and British India General Insurance Co vs Captain Itbar Singh AIR 1959 Supreme Court 1331 referred to