Writ Petition Crimi nal Nos
757759  760 of 1990 Under Article 32 of the Constitution of India N Devarajan and V Krishnamurthy for the Petitioners
Kapil Sibal Additional Solicitor General and A Subba Rao for the Respondents
The Judgment of the Court was delivered by AHMADI J
Three persons namely 1 MM Shahul Hameed  Gani Asiam 2 Haja Mohideen  Shahul Hameed Asarudeen and 3 Naina Mohammed  Raja Mohd Zafar were intercepted by the officers of Department of Revenue Intelligence on 5th October 1989 at the Sahar International Airport Bombay as they were suspected to be involved in smuggling activities
They were escorted to the office of Directorate of Revenue Intelligence Waldorf Colaba Bombay where they were interrogated
On interrogation it was found that MM Shahul Hameed was to board flight No CX 750 to Hongkong while the other two were to proceed to Dubai by Emirate Flight No E 5 10 on that day
The said three persons were searched
Two balloon covered rolls secreted in the rectum of MM Shahul Hameed were removed and were found to contain diamonds and precious stones weighing about 90570 carats and 7737 carats respectively
The said diamonds and precious stones valued at about Rs70 lacs were attached under a Panchnama
In addition to the same foreign currency of the value of Rs 10706 was also recovered and attached
His passport was also seized
The other two persons were found to have swallowed 100 capsules each containing foreign currency of the total value of Rs699930
The capsules were extracted from their persons and the currency was recovered and attached under a Panchnama
In addition thereto foreign currency of the value of Rs 146650 was also found on their person during their search and the same too was attached and seized
Their passports were also seized
460 All the aforesaid three persons belonged to Village Namboothalai of District Ramnath Tamilnadu
Their state ments were recorded on the same day ie 5th October 1989
MM Shahul Hameed disclosed that his cousin Kasim owner of a film company at Madras had offered him a sum of Rs4000 for smuggling diamonds etc to Hongkong
On his agreeing he was trained and was sent to Bombay with one Mohammad who was to introduce him to Mohideen and Rahim who were supposed to entrust him with the diamonds etc to be carried to Hongkong
Accordingly he came to Bombay with the said Moham mad and was duly introduced to the aforesaid two persons at a fiat in Chembur where he stayed
The said Mohideen and Rahim arranged for his passport and ticket and gave him two roll wrapped in balloons containing diamonds etc on the night of 4th October 1989 for being carried to Hongkong
As per the training he had received he concealed these bal loons in his rectum before leaving for the Airport to catch the flight to Hongkong
In addition to the same he was given a paper on which something was scribbled in Arabic
In the course of his interrogation he admitted the recovery and seizure of diamonds and precious stones and also gave the description of Kasim and Rahim
On 12th October 1989 he wrote a letter retracting his statement made on 5th October 1989
However in his further statement recorded on 19th October 1989 he admitted that his signature was obtained on the letter of 12th October 1989 without disclosing the contents thereof to him and that his earlier statement of 5th October 1989 was both voluntary and correct
Inciden tally the statement of retraction was rejected by the Deputy Director of Revenue Intelligence on 20th October 1989
The other two persons whose statements were also record ed on 5th October 1989 disclosed that they were both work ing at a Tea shop in Madras and knew Mohideen and Rahim who too were working with them
Rahim had suggested that they would be paid Rs2000 each if they were willing to smuggle foreign currency to Dubai by swallowing capsules containing the same
On their agreeing they too were trained and were then taken to Bombay where they were lodged in Vimi Lodge at Bhindi Bazar
On 4th October 1989 they were given an tick ets for travel to Dubai and 100 capsules each containing foreign currency
They swallowed the capsules and left by taxi for the Airport in the early hours of 5th October 1989
They too were given a paper containing some scribbling in Arabic by Mohideen and Rahim
While they were waiting to catch their flight they were intercepted as stated earlier
Both of them also signed letters dated 12th October 1989 retracting their statements made under Section 108 of the Customs on 5th October 1989
However in their subsequent statement of 19th October 1989 they admitted that they were not aware of the contents of the letter of 12th October 1989
They further admitted that what they had disclosed on 5th October 1989 was both voluntary and correct
Their statements of retraction were also rejected by the Deputy Director of Revenue Intelligence on 20th October 1989
All the three aforesaid persons were produced before the learned Additional Chief Metropolitan Magistrate Esplanade
Bombay on 6th October 1989
They were taken on remand by the police for investigation
Barring MM Shahul Hameed the other two had preferred applications for bail which were kept for hearing initially on 27th October 1989 but the date was later extended upto 16th November 1989
Their co accused Kasim was arrested on 6th October
1989 and was produced before the Additional Chief Metropolitan Magistrate Egmore Madras
He too was taken on remand
On 19th October 1989 he too had preferred a bail application which was kept pending as the investigation was in progress
Since the period of remand was extended from rime to time in the case of all the aforesaid four persons finally upto 16th November 1989 the bail applications were also fixed for hearing on that date
In the meantime on 10th November 1989 the Joint Secretary to the Government of India in the Ministry of Finance Department of Revenue passed an order under sub section 1 of Section 3 of the hereinafter called the Act  directing the detention of all the three persons with a view to preventing him from smuggling goods 
They were directed to be detained in the Central Prison
Bombay
This order of detention though passed on 10th November
1989 was in fact served on the three detenus on 21st November 1989
ie after a lapse of about 11 days
The grounds of detention dated 10th November 1989 were also served on the three the same day
Thereafter the Additional Secretary to the Government of India in the Ministry of Finance Department of Revenue made a declara tion concerning the three detenus dated 20th December 1989 under sub section 1 of section 9 of the Act after record ing a satisfaction that they were likely to smuggle goods out of and through Bombay Airport
an area highly vulnerable to smuggling within the meaning of Explanation 1 to that section
This declaration was served on the detenus within the time allowed by law
Thereupon
the wives of all the three detenus filed separate habeas corpus writ petitions under Article 226 of the Constitution in the High Court of 462 Bombay on 19th January
These writ petitions were numbered 66 67 and 68 of 1990
Four contentions were raised before the High Court namely 1 since the detenus were in custody their detention was unwarranted 2 the detaining authority had betrayed nonapplication of mind by describing the offence with which the detenus were charged as bail able  3 the representation of the detenus dated 18th December 1989 had not been disposed of promptly and there was inordinate delay and 4 the authorities had failed to supply certain crucial documents called for by the detenus thereby depriving them of the opportunity of making an effective representation
All the three petitions came up for hearing before a Division Bench of the High Court on 21st March 1990
The High Court rejected all the four contentions and dismissed the writ petitions
The said dismissal has led to the filing of Special Leave Petitions Criminal Nos
73 1732  733 of 1990
Besides filing the said special leave petitions under Article 136 of the Con stitution the wives of the detenus have also filed separate Writ Petitions Criminal Nos 757759 and 760 of 1990 under Article 32 of the Constitution
We have heard the three special leave petitions as well as the three writ petitions together and we proceed to dispose them of by this common judgment
The learned counsel for the petitioners raised several contentions including the contentions negatived by the High Court of Bombay
It was firstly contended that the detenus had made representations on 18th December 1989 which were rejected by the communication dated 30th January 1990 after an inordinate delay
The representations dated 18th Decem ber 1989 were delivered to the Jail Authorities on 20th December 1989
The Jail Authorities despatched them by registered post
23rd 24th and 25th of December 1989 were non working days
The representations were received by the COFEPOSA Unit on 28th December 1989
On the very next day ie 29th December 1989 they were forwarded to the sponsor ing authority for comments
30th and 31st December 1989 were non working days
Similarly 6th and 7th January 1990 were non working days
The comments of the sponsoring au thority were forwarded to the COFEPOSA Unit on 9th January 1990
Thus it is obvious that the sponsoring authority could not have received the representations before 1st January 1990
Between 1st January 1990 and 8th January 1990 there were two non working days namely 6th and 7th January 1990 and therefore the sponsoring authority can be said to have offered the comments within the four or five days available to it
It cannot therefore be said that the sponsoring authority was guilty of inordinate delay
The contention that the views of the sponsoring authority were 463 totally unnecessary and the time taken by that authority could have been saved does not appeal to us because consult ing the authority which initiated the proposal can never be said to be an unwarranted exercise
After the COFEPOSA Unit received the comments of the sponsoring authority it dealt with the representations and rejected them on 16th January 1990
The comments were despatched on 9th January 1990 and were received by the COFEPOSA Unit on 11th January 1990
The file was promptly submitted to the Finance Minister on the 12th 13th and 14th being non working days he took the decision to reject the representations on 16th January 1990
The file was received back in the COFEPOSA Unit on 17th January 1990 and the Memo of rejection was despatched by the post on 18th January 1990
It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed
It is therefore obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the representations of the detenus
Our attention was drawn to the case law in this behalf but we do not consider it necessary to refer to the same as the question of delay has to be answered in the facts and circumstances of each case
Whether or not the delay if any is properly explained would depend on the facts of each case and in the present case we are satisfied that there was no delay at all as is apparent from the facts narrated above
We therefore do not find any merit in this submission
It was next submitted by the learned counsel for the petitioners that there was no compelling reason for the detaining authority to pass the impugned orders of detention as the detenus were already in custody on the date of the passing of the detention orders as well as the service thereof
Besides he submitted
it is apparent from the averments in paragraph 15 of the grounds of detention that the concerned authority was labouring under a misconception that the detenus were charged with a bailable  offence which betrays total non application of mind
He further submitted that the delay in the service of the detention orders discloses that there was no urgency about ordering detention
Taking the last limb of the argument first we may refer to the counter filed in the writ petitions in this behalf
Therein it is stated that after the detention orders were signed on 10th November 1989 it was realised that certain documents which were not in Tamil language would have to be translated
The services of a professional trans lator were requisitioned
Between 10th and 21st November 1989 there were five holidays on 11th 12th 13th 18th  19th
As soon as the translations were ready and received by the Department the police autho 464 rities were directed on 20th November 1989 to execute the detention orders
This was done on 21st November 1989 Thus the time taken between 10th and 21st November
exclud ing 5 holidays was only of six days during which all the documents were got translated in Tamil language and were served on the detenus along with grounds of detention
These facts clearly show that the time taken in the service of the detention orders cannot be attributed to lack of sense of urgency on the part of the authorities but it was to get the documents translated in Tamil language before they were supplied to the detenus
Under the circumstances we do not see any delay which would vitiate the detention orders
It is indeed true that in paragraph 15 of the grounds of detention the detaining authority has averted that the detenus are charged with a bailable offence
After setting out the fact that two of the detenus had made an application for bail in the Bombay Court and their co accused Kasim had made a similar application in the Madras Court the authori ty proceeds to state as under Though you are in judicial custody but can be released on bail any time as the offence with which you have been charged is bailable in which case you may indulge in similar prejudicial activities
It is necessary to bear in mind the context in which the expression bailable  is used
In the counter filed by the Joint Secretary who passed the detention orders and prepared the grounds for detention it is stated that his past experi ence in such eases was that normally and almost as a matter of rule courts grant bail after the investigation is com pleted
It was in this background says the officer that he used the expression bailable 
We may reproduce his exact words from the counter It is also submitted that the word bailable which has not been used in the legal sense it was intended to convey that normally in such cases one gets bail and in that context the word bailable  was used
Proceeding further it is averred in the counter that even in nonbailable offences the Sessions Court and the High Court are empowered to grant bail
He was therefore of the view that in such cases courts normally grant bail
It was in this background that he used the word bailable in the grounds of detention
465 Mr Sibbal the learned Additional Solicitor General contended that the expression bailable was used in the backdrop of the fact that two of the detenus and Kasim had already applied for bail
The court had not rejected their applications but had adjourned them as the investigation was in progress
That gave rise to the belief that bail would be granted
His normal experience also was that in such cases courts ordinarily granted bail on the conclusion of the investigation
He therefore loosely described the offence as bailable and did not use that word in the technical sense of section 2a of the Code of Criminal Procedure
The High Court also pointed out that even in respect of non bailable offences it is generally open to the Sessions Court and the High Court to release the accused on bail
It further points out that it is equally open to the Magistrate to release the accused on bail after a period of two months
In the circum stances the High Court was of the opinion that the use of the expression bailable  cannot lead one to the conclusion that there was no application of mind
We are inclined to think that having regard to the background in which this expression is used in paragraph 15 of the grounds of deten tion and bearing in mind the explanation and the fact that in such cases courts normally grant bail it cannot be said that the use of the said expression discloses non applica tion of mind
It was then submitted that the detenu MM Shahul Hameed had not applied for bail and therefore there was no question of his being released on bail
We do not think that there is any merit in this submission for the simple reason that if the co accused are released on bail he too could seek enlargement on bail at any time
Therefore the possibility of all the detenus being released on bail was a real one and not an imaginary one
This was based on past experience which is re inforced by the observations of the High Court that even in non bailable cases courts of Sessions and High Court do grant bail
The second limb of the contention is therefore clearly devoid of merit
Counsel for the detenus however vehemently argued that since the detenus were in custody there was no compelling necessity to pass the detention orders for the obvious reason that while in custody they were not likely to indulge in any prejudicial activity such as smuggling
In support of this contention reliance was placed on a host of decisions 01  this Court beginning with the case of Vijay Narain Singh vs State of Bihar and ending with the case of Dharmendra Suganchand Chelawat vs Union of India  It is necessary to bear in mind the fact that the grounds of detention clearly reveal that the detaining authority was aware of the fact that the detenus were appre hended while they were about to board the flights 466 to Hongkong and Dubai on 5th October 1989
He was also aware that the detenu MM Shahul Hameed had secreted dia monds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes
He was also aware of the fact that all the three detenus were produced before the Additional Chief Metropolitan Magistrate Espalande Bombay and two of them had applied for bail
He was also conscious of the fact that the hearing of the bail applications was postponed because investigation was in progress
His past experience was also to the effect that in such cases courts ordinarily enlarge the accused on bail
He was also aware of the fact that the detenu MM Shahul Hameed had not applied for bail
Con scious of the fact that all the three detenus were in custo dy he passed the impugned orders of detention on 10th November 1989 as he had reason to believe that the detenus would in all probability secure bail and if they are at large they would indulge in the same prejudicial activity
This inference of the concerned officer cannot be described as bald and not based on existing material since the manner in which the three detenus were in the process of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf
Even the detenus in their statements recorded on 5th October 1989 admitted that they had embarked on this activity after receiving training
The fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum speaks for itself
Similarly the fact that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance
All the three detenus had prepared them selves for indulging in smuggling by creating cavities in their bodies after receiving training
These were not ordi nary carriers
These were persons who had prepared them selves for a long term smuggling programme and therefore the officer passing the detention orders was justified in inferring that they would indulge in similar activity in future because they were otherwise incapable of earning such substantial amounts in ordinary life
Therefore the criti cism that the officer had jumped to the conclusion that the detenus would indulge in similar prejudicial activity with out there being any material on record is not justified
It is in this backdrop of facts that we must consider the contention of the learned counsel for the detenus whether or not there existed compelling circumstances to pass the impugned orders of detention
We are inclined to think keeping in view the manner in which these detenus received training before they indulged in the smuggling activity this was not a solitary effort they had in fact prepared themselves for a long term programme
The decisions of this Court to which our attention was drawn by the learned 467 counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set atliberty
We will now consider the case law in brief
In Vijay Narain Singh supra this Court stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice So also in Ramesh Yadav vs District Magis trate ET this Court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail
In such cases the proper course would be to oppose the bail application and if grant ed challenge the order in the higher forum but not circum vent it by passing an order of detention merely to supersede the bail order
In Suraj Pal Sahu vs State of Maharashtra  the same principle was reiterated
In Binod Singh vs District Magistrate Dhanbad  it was held that if a person is in custody and there is no imminent possibility of his being released therefrom the power of detention should not ordinarily be exercised
There must be cogent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail
This inference must be drawn from material on record and must not be the ipse dixit of the officer passing the detention order
Eternal vigilance on the part of the authority charged with the duty of maintain ing law and order and public order is the price which the democracy in this country extracts to protect the fundamen tal freedoms of the citizens
This Court therefore empha sized that before passing a detention order in respect of the person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge in prejudicial activity if not detained
That is why in Abdul Wahab Sheikh vs
SN Sinha  this Court held that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that cogent and relevant material disclosed the necessity for making an order of detention
In that case the detention order was quashed on the ground of non application of mind as it was found that the detaining authority was unaware that the detenu s application for being released on bail was rejected by the 468 designated Court In Meera Rant  vs State of Tamil Nadu  the case law was examined in extension
This Court pointed out that the mere fact that the detenu was in custody was not sufficient to invalidate a detention order and the decision must depend on the facts of each case
Since the law of preventive detention was intended to prevent a detenu from acting in any manner considered preju dicial under the law
ordinarily it need not be resorted to if the detenu is in custody unless the detaining authority has reason to believe that the subsisting custody of the detenu may soon terminate by his being released on bail and having regard to his recent antecedents he is likely to indulge in similar prejudicial activity unless he is pre vented from doing so by an appropriate order of preventive detention
In Shashi Aggarwal vs State of Uttar Pradesh  it was emphasized that the possibility of the court granting bail is not sufficient nor is a bald state ment that the detenu would repeat his criminal activities enough to pass an order of detention unless there is credi ble information and cogent reason apparent on the record that the detenu if enlarged on bail would act prejudicial ly
The same view was reiterated in Anand Prakash vs State of Uttar Pradesh  and Dharmendra s case supra
In Sanjay Kurnar Aggarwal vs Union of India  the detenu who was in jail was served with a detention order as it was apprehended that he would indulge in prejudicial activities on being released on bail
The contention that the bail application could be opposed if granted the same could be questioned in a higher forum etc was negatived on the ground that it was not the law that no order of detention could validly be passed against a person in custody under any circumstances
From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed 1 if the authority passing the order is aware of the fact that he is actually in custody 2 if he has reason to believe on the basis of reliable material placed before him a that there is a real possibility of his being released on bail and b that on being so released he would in all probability indulge in prejudicial activity and 3 if it is felt essential to detain him to prevent him from so doing
If the authority passes an order after recording his satisfaction in this behalf such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court
What this court stated in the case of Ramesh Yadav supra was that ordinarily a detention order should not be passed merely to pre empt or circumvent enlargement on bail in cases which 469 are essentially criminal in nature and can be dealt with under the ordinary law
It seems to us well settled that even in a case where a person is in custody if the facts and circumstances of the case so demand
resort can be had to the law of preventive detention
This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise
We therefore
find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the deronus were in custody
Counsel for the petitioners next submitted that while making the representation dated 18th December
1989 the detenus had requested for the supply of copies of the decla rations made by them before the customs authorities at the Bombay Airport before boarding their respective flights and for copies of the search warrants mentioned in the grounds of detention
It was stated that the detenus needed these documents for the purpose of making a representation
While rejecting their representation by the memorandum of 18th January
1989 the detenus were informed that the sponsoring authority was requested to supply the copies of search authorisations to the detenus
The petitioners complained that despite this communication the sponsoring authority did not supply copies of the search authorisations whereupon another letter dated 6th February 1990 was written to the detaining authority asking for the said documents
By the memorandum of 14th February 1990 the detenus were informed that the Deputy Director of Revenue Intelligence
Bombay was requested to supply the documents asked for by the deronus
In response to the same the detenus were supplied copies of the search warrants but not copies of the declara tions made to the customs officers at the airport
It is further complained that this delay had resulted in depriving the detenus of their valuable right to make an effective representation against the impugned detention orders
The High Court while dealing with this contention came to the conclusion that the declarations made by the detenus at the airport were neither relied on nor referred to in the grounds of detention
As regards the search authorisations it may be pointed out that although there is a mention of the premises searched in the grounds of detention the incriminating material found has neither been used nor made the basis for formulating the grounds of detention
Mere reference to these searches by way of completing the narra tion cannot entitle the detenus to claim copies of the search authorisations
The High Court therefore rejected this contention by observing as under 470 We fail to understand how the Detaining Authority can be compelled to give documents which were not relied upon while arriving at the subjective satisfaction
We are also unable to appreciate how the declaration made by the detenu before proceedings to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future
In our judgment the complaint that some documents which according to the detenu were relevant for making representation were not furnished by the Detain ing Authority and therefore the order or the continuation of the detention is bad is without any substance
 In the counter it is specifically mentioned that these documents were not placed before the detaining authority nor the detaining authority has relied upon those documents while issuing the detention order 
The detenus would have been entitled to any document which was taken into consider ation while formulating the grounds of detention but mere mention of the fact that certain searches were carried our in the course of investigation which have no relevance to the detention of the detenus cannot cast an obligation on the detaining authority to supply copies of those documents
Much less can an obligation be cast on the detaining author ity to supply copies of those documents in Tamil language
In the peculiar circumstances of the present petitions we are of the opinion that the view taken by the High Court cannot be assailed
Reliance was however placed on a decision of the Delhi High Court in Gurdip Singh vs Union of India  Ors Criminal Writ No 257 of 1988 decided on 7th October 1988 1989 Crl
LJ NOC 41 Delhi wherein Malik Sharief ud din J observed that the settled legal position was that all the documents relied upon for the purpose of ordering detention ought to be supplied pari passu with the grounds of detention to the detenu and documents not relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded
Where documents of the latter category are supplied after the meeting of the Advisory Board is over it was held that that would seriously impair the detenu s right to make an effective and purposeful representation which would vitiate the detention
Counsel for the petitioners therefore submitted that in the present case also since the search authorisations were supplied after the meeting of the Advi sory Board the detention orders stood vitiated
But in order to succeed it must be shown that the search authorisa tions had a bearing on the detention orders
If merely an incidental refe 471 rence is made to some part  of the investigation concerning a coaccused in the grounds of detention which has no rele vance to the case set up against the detenu it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation
It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must fur ther be shown that the non supply has impaired the detenu s right to make an effective and purposeful representation
Demand of any or every document however irrelevant it may be for the concerned detenu merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an otherwise legal detention order
No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right however slight or insig nificant it may be
In the present case except stating that the documents were not supplied before the meeting of the Advisory Board there is no pleading that it had resulted in the impairment of his right nor could counsel for the peti tioners point out any such prejudice
We are therefore of the opinion that the view taken by the Bombay High Court in this behalf is unassailable
The declaration under section 91 dated 20th December 1989 is challenged on the ground that the second respondent failed to forward the copies of the document on which he placed reliance for arriving at the subject to satisfaction that the detenu were likely to smuggle goods out of and through Bombay Airport an area highly vulnerable to smug gling as defined in Explanation 1 to section 91 of the Act
Now if we turn to paragraph 2 of the declaration it becomes evident that the second respondent merely relied on the grounds of detention and the material in support thereto which had already been served on the detenu and nothing more
Counsel for the petitioners relying on a decision of the Bombay High Court in Nand Kishore Purohit vs Home Secre tary Maharashtra 29862 Bombay CR 25 however urged that it was obligatory for the second respondent to supply the grounds of detention and the accompanying documents afresh  if the declaration was based thereon
We are afraid we cannot subscribe to this point of view
If the documents relied on for the purpose of framing a declaration under section 92 are the very same which were earlier supplied to the detenu along with the grounds of detention under section 31 we fail to see what purpose would be served by insisting that those very documents should be supplied afresh
Such a view would only result in wasteful
expenditure and avoidable duplication
We do not think that 472 we would be justified in quashing the declaration made under section 91 of the Act on such a hyper technical ground
We therefore do not see any merit in this contention
There are a few other minor grounds on which the deten tion orders are challenged
These may stated to be rejected
Firstly it was contended that under section 31 of the Act a detention order can be passed on one or more of the five grounds set out in clauses i to v thereof
Since the impugned orders make no mention of the clause number on which they are rounded they are bad in law
The detention orders clearly state that the power is being exercised with a view to preventing the smuggling of goods referrable to clause i of the subsection
Merely because the number of that clause is not mentioned it can make no difference whatsoever
So also we see no merit in the contention that the value of goods seized varies in the grounds of detention from that mentioned in the panchnama or appraisal report
How that has prejudiced the detenus is difficult to compre hend in the absence of any material on record
The submis sion that the declaration under section 91 was required to be communicated within five weeks from the date of its making is not specifically raised in the writ petitions nor was it argued before the High Court
We were however told that the declaration was communicated in the first week of January 1990 a statement which was not contested on behalf of the petitioners
In fact the submission was not pursued after this fact was disclosed
We also see no merit in it
Lastly it was said that the authority had failed to take notice of the retraction of the statement recorded under section 108 of the 
In fact there is a specific reference to the retraction letter dated 12th October 1989 and the subsequent letter of 19th October 1989 wherein the detenus stated that they had signed the letter of 12th October 1989 without knowing the contents thereof and had in fact not disowned their earlier statement of 5th October 1989
It is clear from the above that this challenge is also without substance
These were the only contentions urged at the hearing of the special leave petitions as well as the writ petitions
As we do not see any merit in any of these contentions we dismiss the special leave petitions as well as the writ petitions and discharge the rule in each case
RNJ SLPs and Writ Petition dismissed


Summary:
Respondent was assessed for the assessment years of 1967 68 1968 69 and 1969 70 treating her as the head of the HUF
She contended before the income Tax Officer that under the partition agreement dated 371958 the Tavazhi was divided the HUF status of the Tavazhi was disrupted on account of the CIvil Court decree made in a partition suit and the properties were divided into 14 shares and the HUF could not be assessed to income tax
The Income Tax Officer rejected the claim of the respondent on the ground that since the preliminary decree of the Civil Court and not become final and no physical or actual partition had taken place the status of HUF continued for the purpose of Tax
The Single Judge of the High Court allowed the Writ Petition of the respondent holding that Section 171 of the Income Tax Act does not apply to a case where the division was effected before the commence 474 ment of the accounting period and HUF having received no income during the accounting period it could not be assessed to tax notwithstanding the legal fiction under Section 171
In appeal the Division Bench held that there was no express provision in Section 171 nor was there any necessary impli cation arising from the provisions of the section that the income of the family after its division must be treated or deemed to be the income of the HUF inspite of disruption of joint status
The Bench held that HUF is a separate and distinct entity from the members constituting it and if that entity does not receive any income the members  income could not he assessed as income of the HUF
The Division Bench further held that since there had been partition in the family and Tavazhi had ceased to he HUF long before the accounting periods the provisions of the Act could not he pressed into service for the purpose of taxing the income of the individual members of the family treating them having the status of HUF with the aid of Section 171 of the Act
The High Court granted certificate to the Revenue under Article 133 of the Constitution
Hence these appeals
Allowing the appeal the Court HELD 1
Under Section 171 a Hindu Family assessed as HUF is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section
The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family and to record findings on the question of parti tion
If on inquiry he comes to the finding that there has been partition individual liability of members is to be computed according to the portion of the joint family property allotted to them
The definition of partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition
In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation even if the partition is effected through a decree of the court
Ordinarily decree of a Civil Court in a partition suit is good evidence in proof of partition but under Sec tion 171 a legal fiction has 475 been introduced according to which a preliminary decree of partition is not enough instead there should be actual physical division of the property pursuant to final decree by metes and bounds
The Legislature has assigned a special meaning to partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue
Any assessee claiming partition of HUF must prove the disruption of the status of HUF in accordance with the provisions of Section 171 having special regard to the Explanation
The assessee must prove that a partition ef fected by agreement or through court s decree was followed by actual physical division of the property
In the absence of such proof partition is not sufficient to disrupt the status of Hindu Undivided Family for the purpose of assess ment of tax
Under the Hindu Law members of a joint family may agree to partition of the joint family property by private settlement agreement arbitration or through court s de cree
Members of the family may also agree to share the income from the property according to their respective share
In all such eventualities joint status of family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of Income Tax
Section 171 of the Act and the Explanation to it prescribes a special meaning to partition which is different from the general principles of Hindu Law
It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property in the absence of any such proof the HUF shall be deemed to continue for the purpose of assessment of tax
Any agreement between the members of the joint family effecting partition or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accord ance with the agreement or decree of the Court
The respondent for the first time raised the plea of partition and disruption of HUF in the proceedings for the assessment years 1967 68 1968 69 and 1969 70
There had been no physical division of the properties by metes and bounds
The status of HUF had not been disrupted and the income derived from the properties for the purposes of assessment continued to be impressed with the HUF character
Parameswaran Nambudiripad vs Inspecting Assistant Com missioner of Agricultural Income tax  In specting Assistant Commissioner of Agricultural Income Tax and Sales Tax Special Kozhikode vs Poomulli Manekkal Parameswaran Namboodiripad  distinguished
476 Kaloomal Tapeshwar Prasad vs
CIT Kanpur 133 ITR 690 followed
Sunder Singh Majithia vs Commissioner of Income Tax Shankar Narayanan vs Income Tax Offi cer  referred