1 wp2481.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2481 OF 2010 Bhavesh Rajendrabhai Dani Age 36 years, an Indian Citizen, residing at 64, Siddhesh Deep Bldg., B Wing, 6th Floor, Balram Street, Grant Road, Mumbai 400 007 ....Petitioner (friend of detenu) Pravinchandra Mansukhlal Wadecha. ....Detenu. Vs. 1. The State of Maharashtra through the Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai 400 032. 2. Ms.Medha Gadgil, the Principal Secretary (Appeals 2 wp2481.10.sxw and Security), Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai - 400 032. 3. The Superintendent of Prison, Nasik Road Central Prison, Nasik, Maharashtra, ....Respondents Mrs. A.M.Z. Ansari with Mrs. Nasreen Ayubee, advocate for petitioner. Mr. D.P.Adsule, APP for State. CORAM:- A.M.KHANWILKAR AND U.D.SALVI, JJ. DATED:- SEPTEMBER 23/24, 2010. P.C. (Per A.M. Khanwilkar, J.) 1. Heard counsel for the parties. By consent, the matter was proceeded for final disposal as was indicated in the order issuing notice. 3 wp2481.10.sxw 2. By this Petition filed under Article 226 of the Constitution of India, it is prayed that the preventive detention order dated 19th December, 2009, issued by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority in exercise of powers conferred under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (In short, COFEPOSA Act, 1974), against the detenu Pravinchandra Mansukhlal Wadecha, be quashed and set aside and the detenu be set at liberty forthwith. From the grounds of detention, it is noticed that on 29th April, 2009, the detenu was arrested by Officers of AIU, who intercepted the detenu at Boarding Gate No.6, while keeping surveillance on the passengers. On examination of the hand baggage and check-in baggages of the detenu, it was noticed that he was carrying assorted foreign currency equivalent to Indian Rs. 16,37,570/-. The foreign currency consisted of US$ 28685, UAE Dirham 440, South African Rand 1780, Turkey yen 90, Israeli Shekel 350, Jordan Dinar 09 and Swiss Franc 20. Upon recording statement of the detenu under section 108 of the Custom Act, 1962, the detenu admitted his possession, carriage, recovery of the foreign currency under seizure. According to the Petitioner, the 4 wp2481.10.sxw detenu was produced before the Magistrate on 30th April 2009 and after initial remand order, was released on bail on 4th May 2009. After release, his further statements were recorded in May 2009. The detenu then received show-cause notice dated 27th October 2009 and came to be detained by AIU on 1st January 2010, purportedly in connection with the impugned preventive detention order dated 19th December 2009. We shall refer to the other relevant factual matrix at the appropriate stage while dealing with the grounds of challenge in the present Petition. 3. The first ground of challenge, in substance, is that, the detenu was taken into custody by AIU in the first instance on 1st January, 2010, as a consequence of detention order dated 19th December, 2009; and was later on handed over to Sahar Police Station, who in turn handed over custody of detenu to Umra Police Station of Surat, who immediately took him to Surat. They reached Surat at around 2.00 a.m. on January 3, 2010. However, the detention order alongwith grounds was served on the detenu in the Umra Police Station only at 4.10 p.m. on January 3 2010. In other words, the grievance is that, when the detenu was taken into custody by AIU at around 11 a.m. on 1/1/2010, it was obligatory on the part of the said Authority to contemporaneously serve the detention order 5 wp2481.10.sxw on the detenu. In any case, that ought to have been done by Sahar Police Station who took custody of the detenu from AIU at around 7.05 p.m. on 1/1/2010. Further, atleast the Umra Police Officials who visited Mumbai to take custody of detenu from Sahar Police Station and in fact took his custody at around 4.05 p.m. on 2/1/10, while taking his custody ought have served the detention order on him at the same time. Nothing of the above happened. Instead, the order of detention and the grounds therefor were served on the detenu only at around 4.10 p.m. on 3rd January 2010 while in custody of the Umra Police Station, Surat even though he was lodged there from 2.00 a.m. of 3rd January 2010 after he reached there along with the Officials of the Police Station from Mumbai. Thus, it is asserted that, the initial detention of the detenu was illegal. As a consequence, even the impugned preventive detention order itself has vitiated. In support of this submission, reliance has been placed on unreported decisions of our High Court. The first such decision is in the case of Yeshwant Laxmilal Pamecha v/s Union of India & ors. decided on September 27, 1994 in Criminal Writ Petition No.698 of 1994. Reliance is also placed on the decision in the case of Prabhudas Devji Ghutla Vs. State of Maharashtra & ors. being Criminal Writ Petition No.316 of 2008 6 wp2481.10.sxw decided on July 16, 2008. Reliance is then placed on another decision in the case of Reyon Roldon v/s. L. Hmingliana & ors. being Criminal Writ Petition No. 513 of 1988 dated 7th July, 1988, Smt. Fulvanti Tejraj Doshi V/s. Union of India & ors. in Criminal Writ Petition No.350/1988 decided on 1/7/1988. And lastly, Ram Barbhan Keshvala v/s. Shri L. Hmingliana & Anr. in Criminal Writ Petition No.688 of 1990 decided on September 28, 1990. 4. This ground of challenge can be discerned from paragraph- (xii) of the Petition. In response, the Sponsoring Authority has filed reply, which reads thus: "12. With reference to para 6(xii) of the petition, I say that detenu reported to Air Intelligence Unit office on 01-01-2010 at about 13.00 hours for collecting his passport. He was handed over to Sahara Police Station on the same day at 15.00 hours in terms of detention order dated 19-12-2009. The Under Secretary to the Government of Maharashtra, Home Department had issued a letter in the name of Commissioner of Police, Surat for execution of detention order and accordingly in terms of section 3 of COFEPOSA all the documents were served on the detenu within a stipulated period of 5 days." 5. Counsel for the Petitioner had invited our attention to the 7 wp2481.10.sxw documents Exh. F collectively, which according to the Petitioner would indicate different fact situation. The said document dated January 5, 2010, is a reply submitted by the Senior Police Inspector, Sahar Police Station, in respect of the grievance of the detenu, made in the application filed before the Magistrate on 2nd January, 2010, about his illegal detention. The said report suggests that the detenu was arrested and was handed over to Sahar police station at 16.05 hrs. The accompanying documents being case diary reinforces the factual statement made in the said report. 6. It is not necessary for us to allude to the controversy about the difference of timing of detention or handing over of custody of detenu from one Agency to the other. The fact remains that when the detenu was arrested in the first place by AIU and his custody was handed over to Sahar Police Station, neither the Officials of AIU nor that of the Sahar Police Station caused to serve the detention order on the detenu at the relevant time. As a matter of fact, the Sahar Police Station informed the Umra Police Station to make arrangement to take the detenu to Surat, where he could be lodged to undergo the period of preventive detention 8 wp2481.10.sxw in terms of order dated 19th December, 2009. The Officials of the said Umra Police Station arrived at Mumbai and took custody of the detenu from Sahar Police Station on the evening of 2nd January, 2010 and immediately took him to Umra Police Station at Surat, Gujarat. They reached Surat at around 2 a.m. on 3/1/2010. Whereas, the order of detention alongwith grounds therefor were served on the detenu only in the evening of 3rd January, 2010. The question is: whether due to non- service of detention order when the detenu was detained pursuant to the order of preventive detention dated 19th December, 2009 would by itself vitiate the preventive detention order. In our opinion, this argument will have to be stated to be rejected. In the first place, it is cardinal and well established position in law, that, even though a person is placed under illegal detention, the detention would become lawful on an from the moment the constitutional or statutory obligation is complied by the Authority detaining such person. The detenu cannot be ordered to be released once the mandatory formality of his continued detention were to be complied with by the Detaining Authority. 7. The learned APP has rightly invited our attention to the 9 wp2481.10.sxw decision of the Apex Court in the case of Saptawna v/s. The State of Assam [AIR 1971 SC 813]. In that case, the detenu was arrested on January 10, 1968 and was not produced before the Magistrate within 24 hours. While considering somewhat similar grievance in the said decision, the Apex Court rejected the argument in the following words: "2. The learned counsel for the petitioner says that the petitioner is entitled to be released on three grounds : (1) The original date of arrest being January 10, 1968 and the petitioner not having been produced before a Magistrate within 24 hours, the petitioner is entitled to be released; (2) The petitioner having been arrested in one case on January 24, 1968 and he having been discharged from that case, he is entitled to be released; and (3) As the petitioner was not produced for obtaining remand he is entitled to be released. 3. A similar case came before this Court from this very District V.L. Rohlua v. Dy. Commissioner Aijal Dist. Writ Petition No.238 of 1970 D/- 29-9-1970 (SC) (reported in 1971 Cri LJ (N) 8) and the first point was answered by a Bench of five Judges thus : 'If the matter had arisen while the petitioner was in the custody of the Armed Forces a question might well have arisen that he was entitled to be released or at least made over to the police. However, the question does not arise now because he is an under trial prisoner.' It seems to us that even if the petitioner had been under illegal detention between January 10 to January 24, 1968 - though we do not decide this point - the detention became lawful on January 24, 1968 when he was arrested by the Civil Police and produced before the Magistrate on January 25, 10 wp2481.10.sxw 1968. He is now an under-trial prisoner and the fact that he was arrested in only one case does not make any difference. The affidavit clearly states that he was also treated to have been arrested in the other cases pending against him." 8. Applying the principle underlying the dictum of the Apex Court to the case on hand, it would necessarily follow that when the order of detention and grounds were served on the detenu at 4.10 p.m. on 3/1/2010 by the Executing Authority, his continued detention on and from service of the order of detention and grounds therefor would become lawful. At any rate, the order of preventive detention would not vitiate merely because the detention order was not served on the detenu at the time of his initial arrest or because it was actually served on him in the Umra Police Station, Surat. 9. Further, the right of the detenu under Article 22 of the Constitution of India is that, he should be served with the "grounds" on which the order of detention is passed, as soon as may be, from his arrest pursuant to preventive detention order. So that, the detenu would be free to make representation against the order of preventive detention at the earliest opportunity. Notably, there is a marked difference in the language 11 wp2481.10.sxw of Article 22(1) in contradistinction to that of Article 22(5). In case of arrest or detention of a person under any law providing for preventive detention, the stipulations contained in clauses (1) and (2) of Article 22 have no application. The requirements of clauses (1) and (2) are that the person arrested has a right: (i) to be informed about the grounds of such arrest; (ii) to consult, and to be defended by, a legal practitioner of his choice; and (iii) to be produced before the nearest Magistrate within 24 hours of his arrest. Article 22(5) does not provide for any specific time period within which grounds on which the order of detention, is to be served. That however, can be discerned from Section 3 of the COFEPOSA, which reads thus: "3. Power to make orders detaining certain persons. - (1) The Central Government or the State Government or any officer of the Central Government, nor below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - (i) smuggling goods, or (ii) abetting the smuggling of goods, or 12 wp2481.10.sxw (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detailed. Provided, that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 ( J & K Ordinance 1 of 1988). (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detailed in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention." 10. Thus, Section 3(3) of the Act provides for the maximum period within which the "grounds" on which the preventive detention 13 wp2481.10.sxw order should be served. Infraction of that stipulation, may result in vitiating the continued detention. Indeed, this does not mean that the Detaining Authority or the Executing Authority is not required to serve the detention order contemporaneously at the time of arrest of the detenu. However, the fact of non-service of the grounds on which the detention order is made, even if it was possible to do so at the time of arrest of the detenu, will have to be answered on the facts of each case. In the present case, as the detenu was resident of Surat in the State of Gujarat, the detention order was required to be executed by the Commissioner of Police, Surat. The said Authority was duly notified to take necessary measures in that behalf. Besides, intimation about passing of detention order against the detenu was given including to AIU, who initially arrested the detenu. It is not possible to hold that the Detaining Authority or the Executing Authority would itself travel from place to place in search of the detenu alongwith physical copy of the order and grounds of detention in hand. In a given case, the detenu could be arrested by some other agency, who has been informed about the detention order passed against the detenu. That agency may not be in possession of the detention order. However, when the Officials deputed 14 wp2481.10.sxw by the Detaining Authority or the Executing Authority take over custody of the detenu from such agency or person, ordinarily, they are expected to make arrangement to serve the copy of the detention order on the detenu at the same time or as soon as may be after the arrest. We are not examining the question as to whether the initial arrest of the detenu before us is illegal or otherwise. Significantly, the Executing Authority (Commissioner of Police, Surat) who eventually caused to take custody of the detenu from the Sahar Police Station has not been made party Respondent to this proceedings. The said Authority would have explained the circumstances as to why the order of detention was not served on the detenu when his custody was taken from Sahar Police Station or until 4.10 p.m. on January 3, 2010 even though the detenu was lodged in Umra Police Station at 2.00 a.m. on January 3, 2010. Be that as it may, assuming that the initial arrest of the detenu was illegal for want of service of the detention order, that does not result in automatic invalidation of the detention order itself, as is sought to be contended. We are in agreement with the submission canvassed on behalf of the State that the point of time at which the order of detention along with the grounds were served on the detenu, the continued detention of the 15 wp2481.10.sxw detenu on and from that time would be lawful detention. 11. We may now turn to the decisions pressed into service on behalf of the Petitioner. In the first unreported decision in Yeshwant Pamech (supra), the fact situation was that the detenu was arrested by Surajpole Police station on 7th May, 1994. He remained in the custody of the said Police Station till 8th May, 1994 and the order of detention was served on the detenu while he was about to board the flight at the airport on 8th May 1994. The Division Bench of our High Court opined that since the detenu was apprehended on 7th May, 1994 and thereafter was in the custody of the concerned Police Officer and Custom officer till he was brought to Mumbai and that the order of detention came to be served on him only at the Airport on 8th May, 1994, it was clear that from the time the detenu was apprehended by the concerned Police Officials from his native place in the night of 7th May, 1994, till he was served the order of detention at about 9 p.m. on 8th May, 1994 at Udaipur airport, the detenu was in the detention for which, he was not served with any valid order of detention. On that finding, the Court went on to further observe that since initial detention till the order of detention was served 16 wp2481.10.sxw upon the detenu, the continuation of detention of the detenu had become illegal and cannot be sustained. However, considering the exposition of the Apex Court, which has been alluded to, the decision which is pressed into service by the Counsel appearing for the Petitioner will be of no avail. The legal position is that on and from the order of detention or the grounds of detention are served in compliance with the Constitutional or Statutory requirements, atleast from such time, the detention would become lawful. If so, the order of detention cannot be invalidated because the initial arrest of the detenu was without serving copy of the detention order. 12. We would now turn to the decision in Prabhudas Ghutla(supra). Even in this case, the fact situation was more or less similar. The detenu was not served with the detention order when he was arrested on 3rd January, 2008. The detention order was served on him only on 5th January, 2008. The Division Bench of our High Court proceeded to observe that since the detenu was not produced before the nearest Magistrate within 24 hours from his detention on 3rd January, 2008 and was not served with the detention order, his initial detention and custody was illegal till 5th January, 2008. The Court then made 17 wp2481.10.sxw reference to Article 22(1) and 22(2) of the Constitution of India to opine that failure to serve the order of detention when the Petitioner was arrested; coupled with the non-production of the detenu before the nearest Magistrate within 24 hours, had the effect of denying the detenu of his right to consult and to be defended by a legal practitioner of his choice. It is on this premise, the Court proceeded to opine that the initial custody of detenu was illegal and, therefore, the detention order was vitiated. In support of this reasoning, reliance was placed on the above noted unreported decision in Yeshwant Pamecha (supra). With utmost humility at our command, we would observe that the logic applied by the Division Bench is per incuriam. In matters of preventive detention, compliance of requirements under Article 22(1) and 22(2) has no place. That position has been pronounced in Article 22(3) itself. It plainly provides that nothing in clause (1) and (2) shall apply, interalia, to any person, who is arrested or detained under any law providing for preventive detention. This crucial aspect has been completely glossed over in the decision under consideration. The governing provision in respect of arrest or detention of a person pursuant to a law providing for preventive detention would be Article 22(5), as in the present 18 wp2481.10.sxw case.Besides, the legal position expounded in the decision of the Apex Court in Saptawna (Supra) has been overlooked in both the aforesaid decisions. Whereas, the statement of law occurring in the said decision has been consistently followed by the Apex Court. Somewhat similar argument was considered by the Constitution Bench of the Apex Court in the case of State of UP v/s. Abdul Samad[AIR 1962 SC 1506]. Even in that case, after the person was arrested, he was not produced before the nearest Magistrate within 24 hours. But, later on, was produced before the Court. The majority view of the Constitution Bench of the Apex Court, is that, guarantee under Article 22(2) had not been violated. The Apex Court went on to observe that during the "second state" or when the person was produced before the Court, it is not possible to say that he was illegally detained thereafter for more than 24 hours without producing before a judicial authority as required by Article 22(2). In the case of Subhash Muljimal Gandhi Vs. L. Himingliana reported in 1994 AIR SCW 4975, the Court rejected similar argument in paragraph No.11 of the reported judgment. It held that even if it is found that the explanation offered by the Respondents for delayed production is not a satisfactory one and that the Customs Officers have failed to comply with 19 wp2481.10.sxw constitutional and statutory requirements, the order of detention, which has been made by the detaining authority on the basis of its satisfaction that the petitioner was smuggling gold, would not be bad on that score. The Petitioner, however, would be entitled to seek appropriate relief by way of compensation or otherwise, in case he succeeds in proving that he was wrongfully and illegally detained. In the case of Godavari Shamrao Parulekar v/s. State of Maharashtra [1964 SC 1128], the Constitution Bench of the Apex Court rejected the argument of the detenu