, F ·-

MST. L.M.S. UMMU SALBBMA

B.B. GUJARAL & ANR.

May 4, 1981

( 0. CHINNAPPA REDDY, A.P. SEN AND

BAHARUL !SLAM, JJ. ]

Conservation of Foreign Exchange and Prevention of Smuggling Activities~Act

1974, S.3(1).

Detention under-Delay in disposal of representation-Whether vitiates detention.

Detaining Authority-Failure to consider prosecution under the ordinarvJicriminal /aw-Whether voids order of detention.

Constitution of India 1950, Art. 22(5)-Detaining authoritv-Failure of- To furnish copy of document to which reference is made in grounds of detention-

Whether fatal to order of detention. ·

Indian Evidence Act 1872, Ss. 16andI14-Detenu alleging despatch of communicatian under certificate of posting-Detaining authority contending non-receipt-

Court whether compelled to draw a presumpiion that communication reached the E addressee.

On August 6, 1980 the car in which the detenu was travelling was intercepted by Customs Officers and on a search of the car, wrist watches of foreign origin and semi-precious stones valued at Rs.2.95 lakhs were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank. The goods were seized by the Customs Officers alongwith the Car. On 7.8.1980 the detenu was interrogated and a statement was recorded which incriminated himself and others. He was taken before the Magistrate on 8.8. 19d0 and was remanded to custody. On 12.8.1980 he was granted bail. On 14.8.80 the detenu was stated to have sent a communication addressed to the Assistant Collector of Customs, in which, according to him, he retracted from the statement made by him on 7.8.80 and claimed that

the statement.had been obtained by torturing him.

On 31.10.80. the first respondent made an order of preventive detention against the detenu under Section 3(1) of the Conservation of Foreign Exchange

and Prevention of Smuggling Activities Act 1974. The order of detention and the grounds of detention were served on 2.2.81, as the detenu was avoiding service and arrest. The detenu made a representation on 4.2.81, whih was rejected by H the detaining authority, the first respondent on 19.2.1981. ·

648 SUPREME COURT R.l!PORTS

[ 1981} 3 S.C.R.

In the writ petition to this Court it was contended on behalf of detenu : (1) that as material documents viz. record of investigation revealing the trunk telephone calls and the record of investigation relating to the petrol which was put into the jeep owned by the brother of the detenu, upon which reliance was placed in the order of detention were not supplied to the detenu along with the grounds of detention, the detenu was thereby prevented from making an effective representation and denied the Fundamen ta! Right guaranteed under Article 22(5). (2) The detaining authority was under obligation to supply alongwith the grounds, copies of all documents to which reference was made in the grounds irrespective of whether such documents were not relied upon in making the order of detention. (3). Although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority (4). There was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention, (5). The detaining authority did not apply his mind to the representation which made an express reference to the retraction. (6). The detaining authority had failed to consider the question whether a prosecution under the ordinary criminal law would not suffice to prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances of the case.

Dismissing the petition the Court,

HELD : 1. (i) A perusal of the grounds of detention reveal that neither the record of Trunk Calls nor the record of investigation relating to the petrol put into the jeep were in any manner relied upon by the detaining authority in making the order of detention. [652 CJ

(ii) The reference to the reord of trunk calls was made for the purpose of verifying the trunk call which was received in the premises when the customs officers were there. The reference to the record of investigation relating to the petrol put into the jeep was to refute the statement of the detenu's brother that the jeep was not used during the previous year and was in the garage. [651 G, 651 E, 653 DJ

2. (i) The Constitutional requirement of Article 22(5) is insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. Every failure to furnish copy of a document to which reference is, made in the grounds of detention is not an infringment of Art. 22 (5), fatal to the order of detention. It is only a failure to furnish copies of such documents as were relied upon by the detaining authority making it difficult for the detenu to make an effective representation that amounts to violation of the fundamental right guaranteed by Article 22(5), [652 H-653 BJ

2. (ii) It is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.

[653C}

~.-"

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L.M.S.U. SALl!BMA v. B.B. GUJARAL 649

Smt. Sha/ini Soni v. Union of India and Ors.AIR 1981 SC 431, lechu Devi A Choraria v. Union of India, AIR 1980 SC 1983, Khudiram Das v. The State Q/

West Bengal, [1975) 2 SCR 832 @ 848, 849, referred to.

In the instant case the two documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention.

Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaran• teed by Art. 22 of the Constitution. [653 D]

3(i). If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction alongwith his represen

talion instead of a copy of the certificate of posting. [ 654 A]

(ii) The Certificate of posting might lead to a presumption tethat a letr addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. [654 BJ

(iii) Neither Section 16 nor section 114 of the Evidence Act compels the

Court to draw a presumption that a letter proved to be posted has reached the D addressee. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. [654 F)

In the instant case, the alleged letter of retraction was only a myth. No such letter of retraction was posted as claimed by the detenu. [654 E, G]

4. The representation made by the detenu has to be considered by the detaining authority with utmost expedition but the time imperative can never be absolute. or obsessive. The occasional observations made by this Court that each day's delay in the dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere. but despotic formulae. [655 B-C]

Pritam Nath Hoon v. Union of India and Ors. A. I. R. 1981 SC 92, Shanker Raju Shelly v. Union af India, W. P. 640 of 1980 decided on 26.6.80, Francis Coralie Mullin v. W.C. Khambra, [1980] 2 S.C.R. 1005, referred to.

In the instant case the representation was despatched on 5.2.1981 and was received in the office of the detaining authority on 13.2.1981. It was put up before the detaining authority on 19.2.81 and disposed of that very day. The detaining authority was not available from 13th to 16th as he had gone abroad.

He returned on 16th and considered the matter on 19th. There has not been any unaccontable or unreasonable delay in the disposal of the representation by the detaining authority. [655 D-G]

5. The note file shows that the detaining authority also considered the

question whether the alleged letter of retraction was posted. [656 BJ

A reading of the entire counter-affidavit makes it clear that in the opinion of the detajning authority prosecution or no prosecution, the only effective way of preventing the detenu from engaging himself in objectionable activities was to detain him. [656 G-H]

ORIGINAL JURISDICTION: Writ Petition No. 1745 of 1981.

(Under Article 32 of the Constitution of India.)

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.

M.M. Abdul Khader and MiH A. Subhashini for the Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. In this application under Art. 32 of the Constitution, we are concerned with the question of the legality of the detention of Jahaubar Moulana under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

On August 6, 1980, a car in which the detenu Jahaubar Moulana was travelling was intercepted by Customs Officers near Perumber-Kandigal diversion road on Tiruchirappalli- Madras G.S.T. Road. On a search of the car, 768 Wrist watches of foreign origin and l 560 semi-precious stones were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank.

The goods which were valued at Rs. 2,95,188 were seized by the Customs Officers alongwith the car.

On 7.8.80 the detenu, Jahaubar Moulana, was interrogated and a statement was recorded which incriminated himself and others.

He was taken before the Magistrate on 8.8.80 and was remanded to custody.

He was granted interim bail on 12.8.80 and the bail was finally confirmed on 16.8.80.

On 14.8.80 the detenu claims to have sent a communi cation addressed to the Assistant Collector of Customs, Cuddalore, in which, according to him, he retracted from the statement made by him on 7.8.80 and claimed that the earlier statement had been obtained from him by torturing him.

According to the case of t'he detenu this communication was sent by him under Certificate of posting. Subsequently, on 31.10.80, Shri B.B. Gujral, Additional Secretary to the Govt. of India, Ministry of Finance made an order

of preventive detention against the detenu Jahaubar Moulana under S. 3 (I) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act. The order of detention and the grounds of detention were served on Jahaubar Moulana on 2.2.8 I. According to the respondent they could not be served earlier as Jahaubar Moulana \vas not available and was avoiding service and arrest.

The detenu made a representation on 4.2.81.

The representation was rejected by the detaining authority, Shri

B.B. Gujral on 19.2.81.

Shri Ram Jethmalani, learned counsel for the detenu urged that material documents upon which reliance was placed in the order cf detention were net supplied to the detenu along with the grounds of detention and the detenu was thereby prevented from making an effective representation.

He was thus denied the Fundamental Right afforded to him under Art. 22 (5) of the Constitution. The two documents which according to Mr. Jethmalani were not supplied to the detenu were (l) record of investigation revealing the trunk telephone calls booked from Telephone No. 315 at Kila Karai totelephone No.27115 at Madras on 15.7.80, 18.7.80, 24.7.80, 26.7.80, 27.7.80, 29.7.80, 6.8.80, and 7.8.80; and (2) record of investigation relating to the petrol which was put into Jeep No. TMC 1850 owned by Shri Shamsuddin, brother of the detenu.

In paragraph 4 of the grounds of detention it is mentioned when premises No. 66, Malayappan St. Mannady, Madras was being searched on 7.8.80, a telephone call was received at telephone No. 27115 which was in the premises, from telephone No. 315 Kila Karai enquiring about the arrival of the detenu.

The information about the call was verified with reference to the record of trunk calls and it was found that on the various dated mentioned trunk calls had been booked from telephone No. 315 at Kila Karai to telephone No. 27115 at Madras.

The reference to the record of trunk calls was made for the purpose of verifying the trunk call which was received on 7.8.80 at telephone No. 27115 in the premises No. 66 Malayappan Street when the Customs Officers were there.

After carefully perusing the grounds of detention we find it impossible to hold that the record of trunk calls was one of the documents upon which the detaining authority had relied in making the order of detention.

The reference in the grounds of detention to the petrol put into Jeep No. TMC 1850 was made in the following circumstances.

Paragraph 5 of the grounds of detention refers to a statement made by the detenu's brother Shamsuddin on 20.9.80 in which he stated that his Jeep No. TMC 1850 has not been used during the previous years and that it was kept locked up in a garage. Paragraph 5 then recites that the investigation showed that during the period between

1.6.80 and 5.8.80, on as many as 36 occasions petrol had been put into the jeep at various petrol pumps.

Here again we are unable to say, on a perusal of the grounds of detention, that the record of investigation relating to the petrol put into the jeep was in any manner relied upon by the detaining authority in making the order of detention.

Shri Jethmalani's submission was that the detaining authority was under an obligation to supply alongwith the grounds, copies of all documents to which reference was made in the grounds irrespective of whether sucl:i documents were or were not relied upon in making the order of detention.

He submitted that the very fact that the documents were mentioned in the grounds established that the documents were relied upon in making the order of detention.

We are unable to agree with the submission of Shri Jethmalani. True, it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt. Shalini Soni v. Union of India & Ors.).(1) But these observations must be read in the context in which they were made.

In Shalini Soni' s case, for example, the observations were made immediately after stating that "grounds" in Art. 22 (5) did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences.

In lcchu Devi Choraria v. Union of India(') the Court observed :

''It is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention."

The stress was upon the words "relied upon". In Khudiram Das v. The State of West Bcnga/(3) the Constitutional requirement of Art. 22 (5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite

(I) AIR 1981 SC 431.

(2) AIR 1980 SC 1983.

(3) [1975] 2 SCR 832@ 848, 849.

satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infrin3me:lt of Art. 22 (5), fatal to the order of detention.

It is only failure to for.1ish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an elfective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art. 22 (5).

In our view it is unnecessary to furnish copies of documents to which casual or passing rf erec~ may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.

In the case before us we are satisfied that such wer~ the two documents, copies of which were not furnished to the detenu.

We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention.

Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution.

The next submission of the learned counsel for the detenu was that although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority before making the order of detention. The plain and simple answer of the respondents was that there was no such retraction as claimed by the detenu. According to the detenu as soon as he was released on bail, on 14.8.80, he addressed a letter to the Assistant Collector of Customs, Cuddaiore, retracting from his former statement. This communication was sent under Certificate of Posting, a photostat copy of which was produced before us. In support of the claim that he 'had retracted from his former statement and had communicated the retraction under Certificate of Posting, the detenu invited our attention to the reply sent by him to the show cause notice issued by Collector of Customs under the Customs Act, and to the representation made by him to the detaining authority, in both of which he made a reference to the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority alongwith his representation a photostat copy of the Certificate of Posting but carefully refrained from sending a copy of the letter of retraction

itself.

This is indeed extraordinary. If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction alongwith his representation instead of a copy of the certificate of posting.

One cannot help a suspicion that evidence was being brought into existence to support the assertion that a letter of retraction was sent on 14.8.80.

The detaining authority has stated in the counter that no such letter dated 14.8.80 was received by the Assistant Collector of Customs.

The entire file has been produced before us and on a perusal of the file we find that a thorough search was made, not once but several times, to find out if such a letter was received in the office of the Assistant Collector of Customs, Cuddalore but no such letter coul.d be traced.

The learned counsel urged that the detaining authority was not competent to state that the Assistant Collector of Customs had not received such a letter and that it was for the Asstt. Collector to say so.

There is no force in this submission. The file produced before us shows that the Asstt.

Collector of Customs had informed the detaining authority and the Collector of Customs that he had made a thorough search for the letter said to have been written on 14.8.80 and that no such letter had been received in his office.

We are satisfied that the alleged letter of retraction was only a myth.

The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption.

Neither Section 16 nor Section 114 of the Evidence Act compels the Court to draw a presumption. The presumption may or may not be drawn.

On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed.

After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu.

Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the

c:taining authority and this was sufficient to vitiate the detention.

L.M.S.U. SALEEMA v. B.B. G_UIARAL (Chinnappa Reddy, J.) 655

The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India & Others (1) and in Shanker Raju Shetty v. Union of India (2).

We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Francis Coralie Mullin v. W.C.

Khambra.(') "The time imperative can never be absolute or obsessive''. The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu.

Law deals with the facts of life.

In law, as in life, there are no invarible absolutes.

Neither life nor law can be reduced to mere but despotic formulae.

Considered in that light, can it be said that there was an unreasonable delay in the present case? The representation was despatched on 5 .2.1981 and was received in the office of the detaining authority on 13.2.1981.

Apparently it was in postal transitJrom 5th to 13th. It was put up before the detaining authority on 19.2.1981 and disposed of that very day.

From the records produced before us we notice that the detaining authority, Shri B.B.

Gujral, was not available from 13th to 1 <ith as he had gone abroad.

He returned on 16th and considered the matter on 19th. The learned counsel for the detenu urged that the absence of the detaining authority from India cannot be allowed to violate the fundamental right of the detenu to have his representation considered with the utmost expedition. We agree that in such cases appropriate arrangements must be made for considering the detenu's representation. Apparently, it was not thought necessary in the present case as Shri Gujral was returning on 16th, that is, within a few days.

After the 16th the delay, was for a period of three days only. It can hardly be described as delay though one wishes there was no room even for that little complaint. We are of the view that there has not been any unaccountable or unreasonable delay in the disposa1 of the representation by the detaining authority.

The learned counsel for the detenu further submitted that the detaining authority did not apply his mind to the representation.

(1) AIR J 981 SC 92.

(2) W.P. No.640 of 1980 decided on 26.6.80.


He argued that the representation made express reference to the retraction and yet the detaining authority did not enquire or send for the retraction which admittedly was not available with him. We have already found that no letter of retraction was sent to the Assistant Collector of Customs.

A perusal of the note file shows that the detaining authority also considered the question whether the alleged letter of retraction was posted. In the circumstances we are unable to hold that there was non-application of mind by the detaining authority.

Shri Jethmalani then submitted that the detaining authority had failed to consider the question whether a prosecution under the ordinary criminal law would not suffice to prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances of the case.

Reliance was placed upon the observations made by this Court in Kanchanfal Maneklal Chokshi v. The Stute of Gujurat & Ors. (1) In the counter affidavit filed by the detaining authority, Shri B.B. Gujaral, it has been stated:

"Having regard to the nature of the activities in which the detenu was engaged and after having applied my mind very carefully to all the facts and circumstances of the case and the material placed before me, I arrived at the subjective satisfaction that it was necessary to detain Shri Jahaubar Moulana for preventing him from engaging in transporting smuggled goods. The adjudication of the case under the Customs Act and prosecution of the detenu are entirely on a different footing.

I say that the detention order was passed by me with due care and after careful consideration of all the materials placed before me".

The deponent may not have stated in express words that when he made the order of detention he also considered the question whether a prosecution under the ordinary criminal law would not meet the situation and would not be sufficient to prevent Jahaubar Moulana from engaging himself in the objectionable activities.

But a reading of the entire counter affidavit makes it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from engaging himself in objectionable activities was to detain him.

(l) (1980] 1 S.C.R. 54.

Some other grounds were mentioned by the learned counsel A for the detenu but they were not pressed before us. In the result the Writ Petition is dismissed.

N.V.K.

Petition dismissed.