1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.468 OF 2008 Madhu Kamal Gyanchandani, Age 46 years, r/o. B.N.No.1742, Room No.14, Near Tasildar Office, Gandhi Road, Ulhasnagar-5, Dist.Thane. Petitioner Gyanchandani Kamal Shankarlal (Detenu) versus 1. The State of Maharashtra through the Secretary to the Government of Maharashtra, Home Department, Mantralaya, Mumbai-32. 2. Anna Dani, The Principal Secretary to the Government, Home Department, Mantralaya, Mumbai-32. 3. The Superintendent of Prison, Mumbai Central Prison, Mumbai. 4. The Superintendent of Prison, Nasik Road Central, Nasik. Respondents Mrs.A.M.Z.Ansari for petitioner. Shri D.S.Mhaispurkar, APP for State. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGEMENT : 30th July 2008 2 DATE OF PRONOUNCING THE JUDGEMENT : 11th September 2008 JUDGEMENT (PER : A.A.KUMBHAKONI, J.) :- 1. This Habeas Corpus petition is filed by Smt.Madhu Kamal Gyanchandani, the wife of detenu : Mr.Kamal Shankarlal Gyanchandani who has been detained in pursuance of detention order dated 28th January 2008 issued under The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the said Act” for short). The order of detention was served on the detenu on the same day i.e. 28th November 2008 along with grounds of detention and the documents relied by the detaining authority for issuing such a detention order. 2. The case of the detenu was referred to the Advisory Board which interviewed the detenu and after considering the case of the detenu found that there was sufficient cause for detaining the detenu under section 3(1) of the said Act. Upon receipt of report/opinion of the Advisory Board, the detention order has been confirmed under section 8(f) of the said Act. The confirmation order was also served on the detenu. 3. By the present writ petition the sustainability of the detention is 3 questioned on two grounds. First ground is as to the delay that has been caused in issuance of the detention order which includes the delay caused by the sponsoring authority in moving the proposal for detention. The second ground is that a vital document was not placed before the Advisory Board when the case of the detenu was referred to the Board, as required by section 8(b) of the said Act. On this basis it is contended that such non placement of a vital document has resulted into causing infringement of the right of the detenu guaranteed under section 8 of the said Act and further that the confirmation of the detention of the detenu therefore suffers from non application of mind. 4. Before dealing with the grounds of detention of the detenu under challenge, we may set out few facts that led to passing of the detention order, which are reflected in the grounds of detention framed by the detaining authority. The detenu was intercepted at Mumbai Air-Port on 6th July 2007 when the detenu was proceeding to board a flight after completing his immigration and custom formalities. A black colour zipper hand bag which the detenu was carrying with him, when subjected to a detailed examination, revealed that the detenu was carrying some assorted Foreign and Indian 4 Currencies packed inside the inner lining of the hand bag. However, two checked-in-baggages of the detenu did not reveal anything incriminating articles except some readymade garments. Upon further questioning, the detenu admitted that the detenu had some foreign currency concealed in his rectum and volunteered to eject the capsules purported to contain foreign currency. In presence of Panchas the detenu ejected two capsules from his rectum which were found to contain 10 Euro Currency notes each of 500 denomination. In all foreign and Indian currency equivalent to Indian Rs.8,26,631/- was recovered from the person and baggage of the detenu. Accordingly, a seizure Panchanama was drawn up on 7th July 2007. In the preliminary statement recorded on 7th July 2007 u/s 108 of the Customs Act, the detenu admitted the knowledge, possession, concealment, non-declaration, carriage, recovery and seizure of the aforesaid Indian and Foreign Currency totally valued in Indian rupees at 8,26,631/-. The detenu disclosed further that the said currency was given to him by one Mr. Harchandani Choith Nanikram who used to finance the trips of the detenu abroad. The detenu further admitted to have taken currency given by aforesaid Mr.Harchandani in similar manner by concealing in his baggage and/or his person on his earlier trips abroad also. 5 The detenu was arrested on 7th July 2007 and was released on bail on 21st July 2007. The detenu moved an application before the Additional Chief Metropolitan Magistrate on 7th July 2007 retracting the statements naming the aforesaid Mr.Harchandani as the master mind. The rebuttal application to counter the retraction of the detenu was made by the department on 1st August 2007. However, a show cause notice dated 22nd November 2007 was issued to the detenu and the aforesaid Mr.Harchandani who was also made co-accused in the case. It is alleged that the activities of the detenu fall under section 113(d) and (i) of Customs Act, 1962. It is further alleged that the detaining authority was satisfied that unless detained, the detenu was likely to continue to do the aforesaid activities and, therefore, it was necessary to detain the detenu under the said Act with a view to prevent the detenu to do said illegal acts. 5. As aforesaid, the first ground of attack on the detention of the detenu is that an inordinate delay is caused in issuance of detention order, 6 which includes delay caused by the sponsoring authority as well in moving a proposal for the detention. For better appreciation of the said ground, we set out hereunder the relevant chronology of dates and events. 6.7.2007 - The incident aforesaid occurred at Mumbai Air-Port 7.7.2007 - The detenu was arrested in connection with the said incident. The detenu gave voluntary statements u/s 113 of the Customs Act and named Mr.Harchandani as the master mind. The detenu also identified his photograph. On the same day, when produced before the Additional Chief Metropolitan Magistrate, the detenu moved an application retracting his statements naming Mr.Harchandani as master mind and instead accused the officers of inducing him to name Mr.Harchandani; 21.7.2007 - The detenu was released on bail; 1.8.2007 - Rebuttal application to counter the aforesaid retraction was made by the department; 22.11.2007 - A show cause notice was issued to the detenu as also Mr.Harchandani who was made a co- accused; 16.7.2007 - Search of residential premises of Mr.Harchandani was carried out and his statement was recorded, who denied his involvement; 18.7.2007 - Search of detenu's residential premises was carried out; 23.7.2007 - The detenu sent a letter to the Joint 7 Commissioner of Customs retracting his statement recorded on 7th July 2007; 18.9.2007 - A proposal was prepared by the sponsoring authority initiating an action of preventive detention against the detenu under the COFEPOSA Act; 7.11.2007 - The proposal was forwarded to the Screening Committee ; 7.11.2007 - The Screening Committee approved the proposal 23.11.2007- The approval was received by the sponsoring authority ; 26.11.2007 - The sponsoring authority forwarded the proposal to the detaining authority; 4.12.2007 - The proposal was scrutinized by the Assistant, Under Secretary from the office of detaining authority; 8.12.2007 - The proposal was scrutinized by the Deputy Secretary; 28.12.2007 - The detaining authority approved the proposal and directed to issue detention order as also personally formulated the draft grounds of detention; 7th January to 9th January 2008 - These grounds of detention formulated by the detaining authority were typed and endorsed by the Assistant, Under Secretary and Deputy Secretary 10.1.2008 - The detaining authority approved the order of detention and grounds; 23.1.2008 - The draft detention order, approved 8 grounds, annextures etc. were submitted for signature of the detaining authority ; 28.1.2008 - The detaining authority signed the order of detention and issued the same; 28.1.2008 - The detention order was served on the detenu along with grounds of detention etc.. - On the same day, report u/s 32 of the said Act was forwarded to the Central Government; 27.2.2008 - The case of detenu was referred to the Advisory Board u/s 8(b) of the said Act; – The Advisory Board interviewed the detenu and after considering the case of the detenu found that there was sufficient case for detention of the detenu; 10.3.2008 - Report of the Advisory Board was received by the State. The same was thereafter processed by Under Secretary, Deputy Secretary; 24.3.2008 - The Additional Chief Secretary (Home) considered the report, opinion of the Advisory Board and was pleased to confirm the detention order issued u/s 8(f) of the said Act; 25.3.2008 - Confirmation order was issued; 28.3.2008 - The same was served on the detenu. 6. On behalf of the respondents affidavits have been filed not only by the detaining authority but also by the sponsoring authority explaining the steps that were taken in the present matter by each of them trying to 9 justify that in the shortest possible time the impugned action was taken by each of them and that there is no delay caused as alleged by the petitioner. 7. Inasmuch as the contention of the petitioner that the sponsoring authority itself has caused delay in moving the proposal is concerned, the aforesaid chronology of events demonstrates that the incident took place between 6th and 7th July 2007 and a proposal was prepared by the sponsoring authority on 18th September 2007 which was put up before the Screening Committee on 7th November 2007. The Screening Committee appears to have held a meeting on 7th November 2007 and approved the proposal in its meeting. Thus, it is clear that the sponsoring authority prepared the proposal after two months and twelve days of the incident. This period of two and a half months has been explained by the sponsoring authority by showing that it took various steps set out in the affidavit of the sponsoring authority in the mean while between 7th July 2007 and 18th September 2007. These steps taken were, such as : recording statements of the detenu, co- accused Mr.Harchandani, Bharat Mehra (sub-agent of the travel agent through whom the detenu had booked the air tickets), search conducted at the residential premises of the aforesaid co-accused Mr.Harchandani as also of the detenu. 10 8. In the affidavit of sponsoring authority it is further stated as under:- “ ... ... As per previous records of the Customs Department, the detenu was found involved in smuggling of dutiable goods at Chhatrapti Shivaji International Airport, Mumbai on an earlier occasion also when action against the detenu was taken for violation of ITC and the Customs Act, 1962 vide case F.No.Air/Cus-49/MIII/73/2007 dated 23.5.2007 and fine and penalty was imposed by the Assistant Commissioner of Customs, CSI Airport, Mumbai vide Order dated 23/05/2007. The detenu's further statement was recorded on 14/11/2007 and the show cause notice was issued to the detenu on 22/11/2007.” 9. In our view, the sponsoring authority has properly explained the time of two months and odd days that it took in preparation of the proposal for being forwarded to the Screening Committee. The affidavits shows that the sponsoring authority was very much working on the case in the meantime. It appears that the Screening Committee met on 7th November 2007 when this proposal was placed before it for approval. It is stated in the affidavit of the sponsoring authority that the sponsoring authority received the approval of the Screening Committee on 23rd November 2007. The Screening Committee has approved the proposal on the very same day and 11 forwarded it to the detaining authority, which the detaining authority has received on 26th November 2007. 10. In this regard it cannot be overlooked that the detenu was arrested on 7th July 2007 and was in the custody till 27th July 2007. Thus, the detaining authority appears to have taken time of fifty and odd days to prepare the proposal after release of the detenu. It also appears that the sponsoring authority in the mean while applied for rebuttal of retraction of statements by the detenu on 1st August 2007. After taking into consideration the over all activities of the sponsoring authority and the time taken by it for the same though it appears that it was possible for the sponsoring authority to move the proposal at some what early date, we do not think that the sponsoring authority has caused an inordinate delay in moving its proposal for taking action against the detenu. 11. Now, turning to the alleged delay caused by the detaining authority in issuing the detention order after receiving the proposal from the sponsoring authority, what we observe from the aforesaid chronology is as under. The proposal was received by the detaining authority on 26th 12 November 2007. The same was scrutinized initially at the level of Assistant, then at the level of Under Secretary, then Deputy Secretary and was put up before the sponsoring authority on 5th December 2007. The sponsoring authority thereafter has considered the proposal and is said to have personally formulated the draft grounds of detention and thereafter having satisfied for the need to issue the detention order, has directed to issue the detention order on 20th December 2007. From 23rd December 2007 steps appears to have been taken for clerical work and also for approval of the draft detention order, the grounds of detention as also the final detention order, which, ultimately, came to be issued on 20th January 2008. Thus the detaining authority has taken time of just less than two months to issue the detention order after receipt of the proposal from the sponsoring authority. Before we comment upon this factual aspect of the matter we must recapitulate the legal aspect of the matter, which now we do hereunder. 12. The Supreme Court in the case of Abdul Salam Vs. Union of India reported in 1990 (3) SCC 15 in paragraph 14 has observed thus : 13 This extract is taken from Abdu Salam v. Union of India, (1990) 3 SCC 15, at page 21 : “14......................In our view, the delay has been reasonably explained. The courts have not laid down that on mere such delay the detention has to be struck down. In Yogendra Murari v. State of U.P.9 it is held that : (SCC p. 563, para 6) “... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay.... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not.” That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the court should not normally strike down the detention on that ground. In Hemlata Kantilal Shah v. State of Maharashtra 10 it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.” (emphasis supplied) The aforesaid observation of the Supreme Court shows that delay 'ipso facto' in passing an order of detention after an incident is not fatal to the detention of a person involving in such an incident. The Court is required to appreciate the potentiality in the detenu and/or the likelihood of his repeating the alleged illegal activities. 14 13. If we apply these principles to the facts of this case, it becomes clear that (as pointed out by the sponsoring authority by its affidavit, the relevant portion whereof is extracted by us hereinabove) it is not that the detenu has committed the alleged illegal act for the first time on 6th/7th July 2007. What he did on 6th/7th July 2008 was just a repetition of something that was done by him earlier also on 23rd May 2007, when the detenu was caught. Even when an action was taken against the detenu on an earlier occasion, within two months thereof, the detenu is alleged to have committed a some what similar act. Moreover the method and the manner in which the foreign currency was allegedly concealed, as aforesaid, not only in the accompanying zipper hand bag but also in the rectum by the detenu, demonstrates the potentiality of the detenu of likelihood to repeat the same prejudicial activity. 14. In this factual background of the matter, we are of the view that the time of couple of months taken at the level of the sponsoring authority or at the instance of the detaining authority in taking the impugned action 15 can not be catagorised as 'a delay caused' in taking such an action of detention and that it is fatal. There is nothing on record to show that even in the aforesaid background of the potentiality and the propensity of the detenu to again commit the same prejudicial activity again mere alleged delay has resulted into severance of the necessary nexus as also making the grounds of detention stale and illusory. For all these reasons we hold that the detention order is not liable to be set aside on the mere ground of alleged delay that has occurred in its issuance. 15. The second ground of attack of the petitioner on the detention of the detenu, as aforesaid, is that on behalf of the detenu Advocate Ravi M. Hirani had replied vide reply dated 27th February 2008, to the show cause notice issued to the detenu by the Department. This reply was sent to the Joint Commissioner of Customs, Mumbai. It is the contention of the petitioner that this reply was not placed before the Advisory Board when the matter of the detenu was referred to the Advisory Board, as required under section 8(b) of the said Act. It is contended that this document was vital and that it would have influenced the Advisory Board as also the Confirming Authority in taking an action of confirmation of the detention. On this ground, it is submitted that on account of such a non placement of a 16 vital document, the right of the detenu u/s 8 of the said Act has been infringed and that in any event, it has led to a non application of mind, both, by the Advisory Board as also by the Confirming Authority in confirming the detention. This ground was not initially raised by the petitioner and, therefore, the petition was sought to amend the present petition, which amendment was permitted by us. 16. In reply the fact that the aforesaid document in issue was not placed before both the authorities is not disputed. On the contrary it is contended on behalf of the respondents by learned APP that the aforesaid documents i.e. reply to the show cause notice is not a vital document at all and, therefore, it's non placement before the Advisory Board as also the Confirming Authority, cannot vitiate the confirmation of the detention of the detenu. It was further contended that even otherwise, a perusal of the said document shows only narration of facts which includes retraction of the statements by the detenu, which fact has already been placed before both, the Advisory Board as also the Confirming Authority. It was contended that such non-placement of the document has not caused even otherwise any prejudice to the detenu. 17 17. Learned counsel appearing on behalf of the petitioner has placed reliance on the following decisions in support of the aforesaid ground :- I. 2000-All.MR (Cri)-1092 – (Smt.Nirmala Bharat Keshwani Vs. The State of Maharashtra and others); II. AIR-1991-SC-1375 – (K.Satyanarayan Subudhi Vs. Union of India and others); III. An order of Supreme Court in Criminal Appeal No.115 of 1986, dated 5th February 1986; On the contrary, on behalf of the respondents, learned A.P.P. In support of his case has relied on the following decisions :- I. 2004(3)-Mh.L.J.-505 – (Kirti Kumar Narulla Vs. State of Maharashtra nd others); II. 1997-ALL MR (Cri) – 528 – (Smt.Sharifa Abubakar Zariwala Vs. The Union of India and others); III. AIR-1986-SC-687 – (Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and others); IV. (1999)8-SCC-473 – (Ahamed Nassar Vs. State of Tamil Nadu and others). 18. We have perused the documents which are supplied to the detenu along with detention order. These very documents were placed before both, 18 the Advisory Board and the Confirming Authority. This set of documents at page 59 contains the retraction statement of the detenu. The very short hand written retraction statement reads thus :- Retraction of Statements May it please your honour :- It is prayed by the Accused that when he was arrested by the officers of A.I.U. with Indian Currency and Foreign Currency, he submitted the same belongs to him. But at that time one of the I.A.S. Officers suggested him that recently one person by name Harchandani Choith Nanikram was arrested by same Department, he should say that same belongs to him so he acted as per advice of that officers, and implicated Harchandani Chaitu Nanikram. In fact, he has nothing to do with the seized currency belongs to accused. So the accused retract his statement and ..............(two words are not legible) the same as not voluntered. Bombay sd/- Kamal S. 7-7-07 Accused” 19. It is pertinent to note that by this retraction statement what the detenu has really retracted from his statement given u/s 108 of the Customs Act, is that the co-accused of the detenu, aforesaid Mr.Harchandani, is not concerned with the offence that the detenu has committed. By this retraction the detenu has retracted the statements initially made by the 19 detenu for roping in Mr.Harchandani. By this retraction the detenu has not at all retracted the statements that were made by the detenu about his own personal involvement in the alleged offence. We are, therefore, of the view that this retraction by the detenu, in any event, was not of any help to the detenu. At the highest, it would help the aforesaid Mr.Harchandani, the co-accused of detenu. In any case, admittedly this retraction was placed before the Advisory Board as also the Confirming Authority. 20. A perusal of the aforesaid document in issue dated 27th February 2008 (i.e. the reply to the show cause notice issued by the advocate on behalf of detenu, which, in submission of the detenu ought to have been placed before the Advisory Board and the Confirming Authority) shows that it contains all factual statements which are already on record and which also form part of the show cause notice itself that was admittedly on record. This reply in issue also refers to the retraction of statement by the detenu and particularly states as under :- “(5) Sir, during investigations, statements were recorded and various questions were put, but my client stated that currencies belong to him and same is 20 reflected in para 31, page 12 of the S.C.N.” Thus by this reply the detenu has admitted the currencies seized belong to him and not to the said Mr. Harchandani. Thus the perusal of all the relevant material on record in this regard gives a clear picture that both the retraction as also the reply in issue (to the show cause notice) were prepared as also issued only and only to shield and save, if possible, the co- accused Mr.