Case: Kamarunnissa Etc. Etc Vs. Union Of India And Ors

( 1. ) Three persons, namely (1) M. M. Shahul Hameed alias Gani Aslam, (2) Haja Mohideen alias Shahul Hameed Asarudeen and (3) Naina Mohammed alias Raja Mohd. Zafar were intercepted by the officers of Department of Revenue Intelligence on 5/10/1989 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 M. M. 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 M. M. Shahul Hameed were removed and were found to contain diamonds and precious stones weighing about 905.70 carats and 77.37 carats, respectively. The said diamonds and precious stones valued at about Rs. 70 lacs were attached under a Panchnama. In addition to the same foreign currency of the value of Rs. 10,706 was also recovered and attached. His passport was also seized.( 2. ) The other two persons were found to have swallowed 100 capsules each containing foreign currency of the total value of Rs. 6,99,930.00. The capsules were extracted from their person and the currency was recovered and attached under a Panchnama. In addition thereto foreign currency of the value of Rs. 1,466.50 was also found on their person during their search and the same too was attached and seized. Their passports were also seized.( 3. ) All the aforesaid three persons belonged to Village Namboothalai of District Ramnath, Tamilnadu. Their statements were recorded on the same day i.e. 5/10/1989. M. M. Shahul Hameed disclosed that his cousin Kasim, owner of a film company at Madras, had offered him a sum of Rs. 4,000.00 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 Mohammad and was duly introduced to the aforesaid two persons at a flat in Chembur where he stayed. The said Mohideen and Rahim arranged for his passport and ticket and gave him two rolls wrapped in balloons containing diamonds, etc., on the night of 4/10/1989 for being carried to Hongkong. As per the training he had received, he concealed these balloons 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 12/10/1989 he wrote a letter retracting his statement made on 5/10/1989. However, in his further statement recorded on 19/10/1989 he admitted that his signature was obtained on the letter of 12/10/1989 without disclosing the contents thereof to him and that his earlier statement of 5/10/1989 was both voluntary and correct. Incidentally the statement of retraction was rejected by the Deputy Director of Revenue Intelligence on 20/10/1989.( 4. ) The other two persons whose statements were also recorded on 5/10/1989 disclosed that they were both working 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 Rs. 2,000.00 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 Bhendi Bazar. On 4/10/1989 they were given air tickets 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 5/10/1989. 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 12/10/1989 retracting their statements made under Section 108 ofthe Customs Act, 1962 on 5/10/1989. However, in their subsequent statement of 19/10/1989 they admitted that they were not aware of the contents of the letter of 12/10/1989. They further admitted that what they had disclosed on 5/10/1989 was both voluntary and correct. Their statements of retraction were also rejected by the Deputy Director of Revenue Intelligence on 20/10/1989.( 5. ) All the three aforesaid persons were produced before the learned Additional Chief Metropolitan Magistrate, Esplanade, Bombay on 6/10/1989. They were taken on remand by the police for investigation. Barring M. M. Shahul Hameed, the other two had preferred applications for bail which were kept for hearing initially on 27/10/1989 but the date was later extended up to 16/11/1989. Their co-accused Kasim was arrested on 6/10/1989 and was produced before the Additional Chief Metropolitan Magistrate, Egmore, Madras. He too was taken on remand. On 19/10/1989 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 time to time in the case of all the aforesaid four persons finally up to 16/11/1989, the bail applications were also fixed for hearing on that date.( 6. ) In the meantime on 10/11/1989 the Joint Secretary to the Government of India in the Ministry of Finance, Department of Revenue, passed an order under subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act) directing the detention of all the three persons with a view to preventing them from smuggling goods. They were directed to be detained in the Central Prison, Bombay. This order of detention, though passed on 10/11/1989 was in fact served on the three detenus on 21/11/1989, i.e., after a lapse of about 11 days. The grounds of detention dated 10/11/1989 were also served on the three detenus on the same day. Thereafter the Additional Secretary to the Government of India in the Ministry of Finance, Department of Revenue, made a declaration concerning the three detenus dated 20/12/1989 under sub-section (1) of Section 9 of the Act after recording 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 Bombay on 18/01/1990. 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 non-application of mind by describing the offence with which the detenus were charged as bailable; (3) the representation of the detenus dated 18/12/1989 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 21/03/1990. 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. 731, 732 and 733 of 1990. Besides filing the said special leave petitions under Article 136 of the Constitution, the wives of the detenus have also filed separate Writ Petitions (Criminal) Nos. 751, 759 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.

Court's reasoning:
n our judgment, the complaint that some documents which according to the detenu were relevant for making representation were not furnished by the Detaining Authority and, therefore, the order of 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 these documents while issuing the detention order. The detenus would have been entitled to any document which was taken into consideration while formulating the grounds of detention but mere mention of the fact that certain searches were carried out 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 authority 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 Gurdeep Singh v. Union of India, Criminal Writ. No. 257 of 1988 decided on 7th October, 1988 [1989 C LJ NOC 41 (Delhi)] wherein Malik Shariefuddin, 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 detenus 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 Advisory Board, the detention orders stood vitiated. But in order to succeed it must be shown that the search authorisations had a bearing on the detention orders. If, merely an incidental reference is made to some part of the investigation concerning a co-accused in the grounds of detention which has no relevance to the case set up against the detenus 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 further be shown that the non-supply has impaired the detenus 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 insignificant 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 petitioners 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.( 15. ) The declaration under Section 9(1) dated 20/12/1989 is challenged on the ground that the second respondent failed to forward the copies of the documents on which he placed reliance for arriving at the subject to satisfaction that the detenus were likely to smuggle goods out of and through Bombay Airport, an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) 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 v. Home Secretary, Maharashtra, (1986) 2 Bom 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 9(1) are the very same which were earlier supplied to the detenus along with the grounds of detention under Section 3(1), 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 we would be justified in quashing the declaration made under Section 9(1) of the Act on such a hypertechnical ground. We, therefore, do not see any merit in this contention.( 16. ) There are a few other minor grounds on which the detention orders are challenged. These may be stated to be rejected. Firstly, it was contended that under Section 3(1) 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 founded 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 referable to clause (i) of the sub-section. 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 apprisal report. How that has prejudiced the detenus is difficult to comprehend in the absence of any material on record. The submission that the declaration under Section 9(1) 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 ofthe Customs Act, 1962. In fact there is a specific reference to the retraction letter dated 12/10/1989 and the subsequent letter of 19/10/1989, wherein the detenus stated that they had signed the letter of 12/10/1989 without knowing the contents thereof and had in fact not disowned their earlier statement of 5/10/1989. It is clear from the above that this challenge is also without substance