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PETITIONER: HARIDAS AMARCHAND SHAH OF BOMBAY

       Vs.

RESPONDENT: K.L. VERMA & ORS.

DATE OF JUDGMENT09/12/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR  497            1988 SCR  Supl. (3)1031  1989 SCC  (1) 250        JT 1988 (4)   632  1988 SCALE  (2)1507

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974: Section 3--Detention order-- Detenu  contending that failure to furnish bank  pass  books vitiated the detention order--Held that bank pass books were not  vital  and material documents  in  reaching  subjective satisfaction  of detaining authority--Detention  order  held valid.

HEADNOTE:     The  house  of  the appellant-detenu  was  searched  and currency  notes,  bank  drafts, bank  pass-books  and  loose sheets  seized. The detenu’s statement was recorded  and  he was  arrested. Iater, he made an application retracting  his statement  and the Magistrate made an order thereon:  "Taken on  record".  He was subsequently released on  bail  with  a condition that he would attend Enforcement Department office every day. On his moving another application, the  condition was varied.     Thereafter, an order of detention was made by respondent No.  1 against the appellant under s. 3 of the  Conservation of  Foreign Exchange and Prevention of Smuggling  Activities Act,  1974.  The detenu thereupon filed a writ in  the  High Court challenging  the order, which was dismissed.     Before  this  Court, it was contended on behalf  of  the detenu  that  (i)  his  application  for  variation  of  the condition  of  bail  and the order thereon as  well  as  his application  retracting his statement and the order  thereon were  not  placed before the Detaining Authority,  and  non- consideration   of  these  vital  documents   vitiated   the detention  order;  and (ii) copies of  bank  statements  and loose  sheets  were  not supplied to  the  detenu  and  this infringed his right to make an effective representation.     Dismissing the appeal, it was,     HELD:  1. The application for variation of condition  of bail  and  the  order passed thereon were  not  material  or relevant  documents and failure to produce the  same  before                                                   PG NO 1031                                                   PG NO 1032 the  Detaining Authority before arriving at  his  subjective satisfaction had not vitiated the detention order. [1035A]

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   Asha  Devi  wife  of Gopal  Sherwal  Mehta  (detenu)  v. Shiveraj, Addl. Chief Secretary to the Government of Gujarat JUDGMENT:     Arvindbhai  Purshottambhai Patel y. R.O. Iyer and  Ors., Writ Petition No. 1304 of 1987 dated 25.2.1988, Bombay  High Court, distinguished.     2.  Though  the  detenu’s  application  retracting   his statement and the Magistrate’s order thereon was not  placed before  the Detaining Authority, his retraction  letter  and the reply of the Directorate of Enforcement had been  placed before  the Detaining Authority, and as such  the  Authority knew about these facts. [1035G; 1036A]     3.  There  was no dispute that all the  documents  which were  considered by the Detaining Authority in reaching  his subjective  satisfaction and referred to in the  grounds  of detention  had  been  furnished to the detenu.  It  was  not necessary  to furnish copies of all the documents  including the  bank pass books which were not material  and   relevant for  reaching the subjective satisfaction of  the  detaining authority   merely  because  they  were  mentioned  in   the panchnama. 11036F-G]     4.  The  bank  pass books were not  vital  and  material documents   in  reaching  subjective  satisfaction  of   the detaining authority and  as such the failure to furnish  the bank pass books to the detenu had not infringed any right of the  appellant  and  the order of  detention  could  not  be questioned as illegal or vitiated on that account. [1037B-C]     Ashok  Kumar  v. Union of India, [ 198X]  1  Scale  194, referred to.

&     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 627 of 1988.     From  the  Judgment  and Order dated  10.6.1988  of  the Bombay High Court in Criminal Writ Petition No. 257 of 1988.     R.K.Garg and P.N.Gupta for the Appellant.     Kuldip  Singh, Additional Solicitor General, Arun  Madan and P.Parmeshwaran for the Respondents.                                                   PG NO 1033     The Judgment of the Court was delivered by     RAY, J. Special leave granted. Arguments heard.     This  appeal  on special leave is against  the  judgment dated  10th  June,  1988 made by  High  Court  of  Allahabad dismissing Criminal Writ Petition No. 257 of 1988 instituted by the detenu.     The facts giving rise to this appeal are that on  August 25,  1987  the house of the appellant was  searched  by  the officers of the Enforcement Directorate under Section 37  of Foreign  Exchange  Regulation  Act,  1973  and  they  seized currency notes of Re. 1 lakh and four bank drafts  amounting to  Rs.30,000, bank pass book and loose sheets Nos. 1 to  44 as  per item No. 2 in panchnama dated August 25,  1987.  The statement of detenu was recorded and he was arrested on  the same day. On August 26, 1987 the detenu made an  application in  the  Court of Addl. Chief Metropolitan  Magistrate,  8th Court at Esplanade retracting his statement. The  Magistrate made   an  order  thereon  that  "  Taken  on  record".   An application for bail was moved on September 15, 1987 and  an order had been made on that day releasing him on bail of Re. 1  lakh  with  a  condition imposed  that  he  would  attend Enforcement Department Office every day between 11 a.m. to 2 pUll.  until further order. The detenu filed an  application on September 22, 1987 for variation of the said  conditional

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order  and  the condition was varied by  the  Magistrate  by directing  that  the  detenu  may  attend  the   Enforcement Department   as   and  which   required.   The   Enforcement Directorate  sent a letter directing the detenu  to  collect his  passport  deposit during the time of  questioning.  The passport however. remained with the Enforcement  Department. Thereafter.  on  February  9. 1988  the  impugned  order  of detention  of the detenu in Central Prison, Bombay was  made by  the responded No. 1, the Joint Secretary, Government  of India.  The order of detention was served on the  detenu  on February  19,  1988  and  the  grounds  of  detention   were furnished to him.     A  Criminal  Writ  Petition No. 257 of  1980  was  filed before  High Court, Bombay for quashing the  said  detention order on the grounds inter alia that certain vital documents such  as  the  application  dated  September  21,  1987  for variation  of  the condition ot bail as well  as  the  order passed  by  the Chief Metropolitan  Magistrate  varying  the condition, the application dated August 26, 1987  retracting the statement by the detenu filed before the Magistrate  and non-consideration of the same, as well as the non-supply  of the  copies of Bank pass books and loose papers seized  from the  residence  of detenu and mentioned in  panchnama  dated                                                   PG NO 1034 August  25,  1987  which were placed  before  the  detaining authority  etc. vitiated the subjective satisfaction of  the detaining  authority on consequently the order of  detention is illegal and bad. A Rule Nisi was issued.     A  return was filed by the respondent No. 1 wherein  the detaining  authority denied the allegations and stated  that all  vital and material documents which had been  considered in forming his subjective satisfaction and mentioned in  the grounds  have been supplied to him and as such the  impugned order of detention is not illegal and bad. The criminal writ petition was, therefore, dismissed.     Aggrieved by the judgment of the High Court, the instant appeal on special leave has been filed.     It was firstly contended on behalf of the appellant that the  application for bail and the order dated September  15, 1987  by  the Metropolitan Magistrate  granting  conditional bail  of  Re. 1 lakh with one surety of like  amount  though placed  before the detaining authority, the application  for variation of the condition and the order made thereon by the Magistrate on September 21, 1987 was not produced before the detaining   authority.   This  is  a  vital   document   and non-consideration  of  the same by the  detaining  authority results in the order being illegal. The decision in Ashadevi wife  of Gopal Ghermal Mehta (detenu) v. K. Shiveraj,  Addl. Chief Secretary to the Government of Gujarat & Anr.,  [1979] 2  Scr  215 was cited at the bar. In this case it  has  been observed  by this Court thai documents which are  vital  and necessary for formation of subjective satisfaction,which  is the  pre-requisite for making an order of  detention  having not been placed before the detaining authority before making the  detention  order.  the  order  of  detention  will  get vitiated.  The  detention  was to prevent  the  detenu  from indulging in Hawala business i.e. making various payments to various  persons in this country on  receiving  instructions from  Rafiq  from Dubai. The application  for  variation  if condition  of bail and the order passed by the  Metropolitan Magistrate varying the condition of bail is, in our opinion, not  a  vital  and  material documents in  as  much  as  the granting  of  bail by the Magistrate enabled  the  detention come  out  and carry on his business activities  as  before. Condition imposed by the Magistrate directing the detenu  to

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appear before the office of the Enforcement Department every day between 11 a.m. to 2 p.m. has been varied to the  extent that  the  accused to attend Enforcement Department  as  and when required". The condition imposed by the Magistrate  has no relation to the activities  carried on by the detenu  and                                                   PG NO 1035 as   such   the  High  Court  after  considering   all   the circumstances  held that the order varying the condition  of bail was not a relevant document and failure to produce  the document  before the detaining authority before arriving  at his  subjective satisfaction had not vitiated the order.  We agree with the same.     The  judgment  delivered by the High  Court,  Bombay  in Criminal Writ Petition No. 1304 of 1987 entitled  Arvindbhai Purshottambhai Patel v. R. C. Iyer and Ors., on February 25. 1988  was  referred  to  us. In this  case  the  detenu  was arrested  for smuggling prohibited articles and  the  detenu was  prosecuted  for  smuggling.  He  was  granted  bail  by Magistrate on certain condition. Subsequently that order was varied.  The initial order granting bail was  placed  before the  detaining  authority,  but  the  subsequent  order   of variation was not placed. It was held by the Division  Bench of the High Court that the order of modification might  have influenced the detaining authority in forming his subjective satisfaction and as such the non-placement of the same would vitiate  the  order.  That  was  a  case  of  smuggling   of prohibited  articles and the condition in the bail was  that he would not leave the shores of the country and so he could not  have indulged in smuggling activities pending  decision of  the case. This condition was relaxed by  the  subsequent order. In that context it was observed by the Court that the order of variation is a material document which might affect the formation of subjective satisfaction before passing  the order  of detention and the failure to place  that  document vitiated  the detention order. This observation was made  in the  facts of that case. This case has no relevance  in  the facts of this case as we have held that in the present  case the  order  of  Variation  is  not  a  relevant  and   vital document.     It   has  been  submitted  that  the  detenu   made   an application  on August 26,1987 in the Court of  Addl.  Chief Metropolitan Magistrate. 8th Court. Esplanade retracting his statement whereon an order was made that "taken on  record". This  application  was  not  placed  before  the   detaining authority and this has vitiated the detention order as  this vital  document  was not considered before arriving  at  the subjective  satisfaction by the detaining authority. It  may be  convenient to mention that in the  counter-affidavit  to the writ petition the respondent No. 1 has stated in para  5 that  the  application dated August 26, 1987 and  the  order passed  thereon was not placed before him as the  Sponsoring Authority  did  not know about the  said  application  dated August  26,  1987  and the order  thereon.  The  Enforcement Directorate  was not aware of the said application  and  the order thereon. In any case, the respondent No. 1 has already stated that the retraction letter of detenu dated  September                                                   PG NO 1036 20,1987  and the reply of the Directorate of Enforcement  to the  said  letter  of the detenu dated  August  26,1987  was placed  before  the detaining  authority.  This  submission, therefore,  has  no merit as the  detaining  authority  knew about  the retraction statement and the order  made  thereon before making the order of detention.     It has been contended that the Enforcement Department in course  of search of the house of detenu on August 25,  1987

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attached  bank drafts and cheques, bank pass books of  State Bank of India, Kandivali Branch, New India Co-operative Bank and  Bank of Baroda, Dahisar, loose sheets bunched  together and  marked  ‘C’ containing pages 1 to 44 and  seized  under panchnama  but did not place before the detaining  authority and  if placed copies of those documents were not  given  to the detenu. It has been submitted that the failure to supply these  documents infringed his fundamental right to make  an effective  representation  and  so  the  impugned  order  is required  to  be quashed. In reply to  this  submission  the detaining   authority  filed  a  return  stating  that   all documents  mentioned in panchnama were placed  before   him. But  only  relevant  and vital  documents  were  taken  into consideration  for reaching subjective  satisfaction.  These documents have been referred to in the grounds of  detention and copies of all the said documents have been furnished  to the  detenu. It has been strenuously contended on behalf  of the  appellant that Bank pass books and some pages out of  1 to  44 of the loose sheets bunched together and referred  to in  the Panchnama were not given to him and so he could  not make  an  effective representation. This has  infringed  his right.  In support of his sub-mission the decision  of  this Court  in Ashok Kumar v. Union of India and Ors., [ 1988]  1 Scale 194 (to which one of us is a party) has been cited  at the  bar. There is no dispute that all the  documents  which were  considered by the detaining authority in reaching  his subjective  satisfaction and referred to in the  grounds  of detention  have  been  furnished to the detenu.  It  is  not necessary  to furnish copies of all the documents  including the bank pass books which are not material and relevant  for reaching  the  subjective  satisfaction  of  the   detaining authority   merely  because  they  were  mentioned  in   the panchnama. Moreover, no application had been made before the detaining authority for giving the detenu the copies of  the bank   pass   books  necessary  for  making   an   effective representation  against  the order of  detention.  In  Ashok Kumar’s  case  (supra)  wherein this  Court  held  that  the order  of detention had been vitiated due to  non-supply  of bank pass books of the detenu and his wife seized in  course of search of some houses wherefrom foreign currency as  well                                                   PG NO 1037 as  primary gold with foreign makings were recovered, as  it was  held  that  these documents  were  vital  and  material documents.  The detenu in that case made an application  for furnishing him the bank pass books in order to enable him to make  an  effective  representation  against  the  order  of detention  stating  that the houses from which  the  alleged foreign  currency  as  well as  primary  gold  with  foreign markings  had been recovered did not belong to or  owned  by the  detenu.  In that background this Court held  that  non- supply  of the bank pass books infringed the detenu’s  right to make an effective representation. In the instant case  as we have said hereinbefore  that the bank pass books are  not vital   and  material  documents  in   reaching   subjective satisfaction  of  the detaining authority and  as  such  the failure to furnish the bank pass books to the detenu has not infringed   any  right  of the appellant and  the  order  of detention  cannot  be questioned as illegal or  vitiated  on that score.     No other points have been urged before us.     For  the reasons aforesaid we dismiss the appeal.  There will be no order as to costs. R.S.S.                                     Appeal dismissed .

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