http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 24  

PETITIONER: PRAKASH CHANDRA MEHTA

       Vs.

RESPONDENT: COMMISSIONER AND SECRETARY GOVERNMENT OF KERALA & ORS.

DATE OF JUDGMENT12/04/1985

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1986 AIR  687            1985 SCR  (3) 697  1985 SCC  Supl.  144     1985 SCALE  (1)813  CITATOR INFO :  RF         1986 SC2177  (47)  D          1987 SC1192  (12)  RF         1988 SC 723  (9)  F          1990 SC 176  (28)  RF         1990 SC 605  (11,12)  RF         1990 SC1272  (11)  D          1991 SC1375  (4)

ACT:      Constitution of  India 1950  Act. 22  Cls. (4)  &  (5)- Preventive  detention-Permissibility   of-Safeguards  to  be followed by  the detaining  authority-Rights of  detenu-What are-Grounds for detention-What are      Conservation of  foreign  Exchange  and  Prevention  of smuggling Activities  Act 1974 SS 3 and 5A-Detention-Grounds of detention-Communication  in a  language understood by the detenu at  the earliest-Afford  the detenu an opportunity to make a  representation-Confession statements  under s 108 of the Customs Act  1962-Retraction by detenu-Non-consideration by detaining  authority but  considered by  Advisory  Board- Whether vitiates detention      Words & Phrases-Meaning of      " Grounds"  -Content of  in  detention  order-Not  mere factual inferences  plus  factual  material-Constitution  of India 1950 Article 2 (5).

HEADNOTE:      The petitioner  in his  three writ petitions under Art. 32 challenged  the detention orders made against his father, sister  and   brother  under  the  Conservation  of  Foreign exchange and Prevention of Smuggling Activities Act 1974.      On the  basis  of  intelligence  reports,  the  customs officials searched  the room  of the  Hotel where father and daughter-Venilal D. Mehta and Pragna Mehta were staying. The search led  to the  recovery of  60 gold biscuits of foreign origin from  the suit  case belonging to the daughter. Since both of  them had  no valid  document to prove the nature Or import of the gold biscuits to.. 698 India  and   for   their   legal   possession,   there   was contravention of  the Customs Act, 1962 and the Gold Control

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 24  

Act, 1960,  and, therefore,  liable for  confiscation.  Both were arrested and statements recorded.      In the  meanwhile Bharat  Mehta,  another  son  of  the father, -detenu  who had  come from  Calcutta to arrange for bail was  arrested on 4th May 1984 by the Central Excise and Customs Officials  after his room in the Hotel, was searched and Indian  currency notes  amounting  to  Rs.  24,865  were seized, which he allegedly had brought for meeting the legal expenses for  securing release  of his  father and sister on bail. All  the three  were remanded  to jail  custody.  They retracted their  statements made  before the  Central Excise and Customs  Officers alleging  that they  were made  at the dictates of the customs officers.      Pragna Mehta  was served  with a  detention order under the Conservation  of  foreign  Exchange  and  Prevention  of Smuggling Activities  Act 1974  under s.  3(1) (iii) on 20th June 1984  and was  served with  the grounds of detention in English  language.  Hindi  translation  of  the  grounds  of detention was  served on  30th June, 1984. Venilal Mehta and his son Bharat Mehta were served with detention orders under s. 3(1)  (iii) and (iv) of the Act on 20th June, 1984 and on 1) 25th June, 1984 the grounds of detention were also served on them.  The grounds  of detention were in English language while some  of the accompanying documents were in Malayalam. The detenus made representations for the revocation of their detention. They  appeared before  the Advisory  Board on 6th August, 1984.  The advisory  Board reported  that there  was sufficient  cause   for  detention   of  the   detenus   and accordingly the  Govt. confirmed  their detention  Orders on 13th August, 1984.      All the  three detention  orders have  been  challenged contending: (1)  that the  grounds were  not communicated to the detenus  in a  language understood by them, (2) that the retraction of  the confessions  or statements  made under s. 108 of  the Customs  Act,  1962  had  not  been  taken  into consideration, (3)  that there  was  delay  in  serving  the grounds upon  the detenus,  (4) that  the detenus  were  not allowed to  be  represented  properly  before  the  Advisory Board, (5)  that the  fact of  retraction of the confessions having not  been taken  into consideration  the  proceedings were vitiated,  and (6) that the detaining authority did not independently consider  the representations  of the  detenus but mechanically followed the advice of the Advisory Board.      Dismissing the Petitions, ^      HELD: 1.  The procedural  safeguards have been complied with as  far as  practicable. There  are no  merits  in  the fancied grievances of the detenus .[732]      2. Article  22 of  the Constitution  ensures protection against arrest  and detention  except in  certain prescribed circumstances and conditions. Art. 22(4) 699 stipulates that  no law  providing for  preventive detention shall authorise  the   detention of  a person  for a  longer period than  three months  unless  (a)  Advisory  Board  has reported before  the expiration  of the said period of three months that  there is  in its  opinion sufficient  cause for such detention and (b) such person is detained in accordance with the  provision of  any law made by the Parliament under sub-cls. (a) and (b) of cl. (7). [618D-G]      Clause (5)  of Art.  22 provides  that the  grounds  of detention must  be communicated to the detenu as soon as may be and  that he  should be afforded the earliest opportunity of making  a representation  against the order. There. fore, it must  follow as  an imperative  that the  grounds must be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 24  

communicated in  a language understood by the person so that he can make an effective representation. [719; 72013-C]      Harikisan v. The State of Maharashtra & Others, [1962]  2 Supp. SCR 918. C      In the instant case, the facts revealed that the detenu Vanilal Mehta  was constantly  accompanied and  was  in  the company of his daughter as well as his son-both of whom knew English very  well. The  father signed his mercy petition in Gujrati which was written in English, accepting the guilt of his involvement  in smuggling.  There is no rule of law that common sense should be put in cold storage while considering constitutional provisions  for safeguards  against misuse of powers by authorities though these constitutional previsions should be  strictly construed.  He was in any event given by 30th June 1984 the Hindi translation of the grounds of which he claimed ignorance. The gist of annexures which were given in Malayalam  language had  been stated in the grounds. That he does  not know anything except Gujrati  merely ipse dixit of father  -detenu and is not the last word and the Court is not denuded  to its powers to examine the truth The Court is not the  place where  one can  sell all tales. The detaining authority came  to the  conclusion that  he knew both  Hindi and English. It has been stated so in the counter-affidavit. The circumstances  indicate that  father -detenu  was merely feigning ignorance of English                                            [720C-H; 720 A-B]      In the  instant case,  the grounds  were given  on 20th June, 1984 following the search and seizure of gold biscuits from room  of detenu  Venilal Mehta  in  the  Hotel  in  his presence and in the background Or the mercy petition, he was in constant touch with his daughter and sons and there is no evidence that  these people  did not  know Hindi or English. Indeed they  knew English  as well as Hindi. It is difficult to accept  the position  that in  the peculiar facts of this case, the  grounds were  not communicated  in this sense the grounds of  detention were  not  conveyed  to  the    detenu Venilal. Whether  grounds were  communicated or  not  detenu upon the fact and circumstances of each case. [712 D-F]      Hadibandhu Das  v. District  Magistrate, Cuttack & Anr. [1969] 1  SCR 227, Nainmal Partap Mal Shah v. Union of India and Ors [1980] 4 SCC 427 and Ibrahim Ahmad Batti v. State of Gujrat & ors. [1983] 1  SCR 540 distinguished. 700      4 Article  22(5) of  the Constitution  has two elements (i) communication  of the  grounds on  which  the  order  of detention has  been made  and  (ii)  opportunity  of  making representation against the order of detention. Communication of the  grounds pre-supposes  the formulation of the grounds and formulation  of the  ground  requires  and  ensures  the application of  the mind  of the  detaining authority to the facts and  materials before  it that  is to say to pertinent and proximate  matters in regard to each individual case and excludes the element of arbitrariness and automatism. [725E- G]      5. The "ground." under Art 22(S) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual  material  which led to such factual inferences The concept  of’grounds’.,  therefore’  has  to  receive  an interpretation which  will keep it meaningfully in tune with the contemporary notions of the realities of the society and the purpose  of the Act in question in the light of concepts of liberty  and fundamental freedom guaranteed by Art. 19(1) 21 and 22 of the Constitution[725-H; 726 A-B]      Smt. Shalini  Soni Etc. v. Union of India & Ors. [1981] 1 SCR 962 relied upon.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 24  

    6. A  democratic Constitution  is not to be interpreted merely from  a lexicographer’s  angle but with a realisation that  it  is  an  embodiment  of  the  living  thoughts  and aspiration of  a free  people. The concept of "grounds" used in  the   context  of   detention  in   Art.  22(5)  of  the Constitution and  in sub s. (3) of s.3 of COFEPOSA therefore has  to   receive  an  interpretation  which  will  keep  it meaningfully in  tune with  a contemporary notion. While the expression "grounds"  for  that  matter  includes  not  only conclusion of  facts but also all the "basic facts" on which those conclusions  were founded,  they  are  different  from subsidiary  facts   or  further  particulars  or  the  basic facts.[726C-E]      Hasmukh S/o  Bhagwanji M. Patel v. The State Of Gujarat JUDGMENT:      In the  instant ease  the grounds  of detention  is the satisfaction of  the detaining authority that with a view to preventing the  detenu from acting in any manner prejudicial to the  conservation or  augmentation of foreign exchange or with a  view to  preventing  the  detenu  from  inter  alia, dealing in  smuggled goods  otherwise then  by  engaging  in transporting or concealing or  keeping the smuggled goods or engaging in  transporting or  concealing or keeping smuggled goods  the   detention  of  the  detenu  us  necessary  This satisfaction was  arrived  at  an  inferences  from  several factors. One  of  them  is  that  the  retraction  from  the statements made in the confession or statements under s. 108 of the  Customs Act had not been taken into consideration by the detaining  authority while  passing detention order. The question  is  whether  even  if  the  facts  stated  in  the confession are  completely ignored  then the  inferences can still be  drawn from  other independent  and objective facts mentioned in this 701 case ,   namely  ,   the fact of seizure of 60 gold biscuits from the  suitcase of  the daughter  in the  presence of the father which indubitably belonged to the father and admitted by him  to belong  to him  for which no explanation has been given and  secondly the seizure of the papers connected with other groups and organisations to whom gold has been sold by the father  are relevant grounds from which an inference can reasonably be  drawn for  the satisfaction  of the detaining authority for  detaining the detenus for the purpose of Sec. 3(1)  (iii)  and  3(1)(iv)  The  impugned  order  cannot  be challenged merely  by the  rejection of  the inference drawn from confession. [726E-H; 727A-C]      7.(i) The  Court is  not concerned with the sufficiency of the  grounds. It  is concerned whether there arc relevant materials on  which a  reasonable belief or conviction could have been  entertained by  the detaining  authority  on  the grounds mentioned  in s.  3(1) of  the  Act.  Whether  other grounds should  have been taken into consideration or not is not relevant  at the  stage of  the passing of the detention order. If  that in the position then in view of s. 5A of the Act there  was sufficient material to sustain this ground of detention. [727D-E]      (ii) When  detention under  s. 3 Or the Act is only for the purpose of prevention of smuggling and all the grounds , whether there  are one or more ,  would be relatable only to various activities of smuggling and no other separate ground which could  deal with matters other than smuggling could be conceived of  because the  act of  smuggling covered several activities each  forming a  separate ground of detention and the Act dealt with no other act except smuggling ,  Whenever allegations of  smuggling were made against a person who was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 24  

sought to be detained for preventing further smuggling there is bound  to be  one act  or several  acts with  the  common object of  smuggling goods  which was sought to be prevented by the  Act.’ It would ,  therefore ,  not be correct to say 1 that  the object  of the  Act constituted  the ground  for detention. In the instant case ,  however ,  the authorities concerned came  to the  conclusion  that  the  detenus  were engaged in  smuggling ,   in support of the same they relied on several  factors namely:  (1) the  search and seizure and recovery of  60 gold  biscuits ,   (2)  the  fact  that  the importation of  the 60  gold biscuits could not be explained by the  detenu Venilal  ,  (3) the secretive manner in which the said gold biscuits were kept and (4) the connection with the various  dealers and  the statements of the employees of the dealers  that the  father and the sons used to come with gold  bars.   These  materials   were  in  addition  to  the statements and  concessions made under s. 108 of the Customs Act by  the father  ,  the sons and the daughter. So even if the statements  made by  the n are ignored and obliterated , the other  facts remain and these are- good enough materials to come  to prima facie belief that detention of the detenus was necessary.      State Or  Gujrat v.  Chamanlal Manjibhai  Soni [1981] 2 SCR 500 followed.      In the  instant case  ,    there  was  no  request  for consultation with  the Advocate.  There is  no case  of non- production of  the detenu  in spite  of  intimation  by  the Advocate to  the Customs  Officers before  a Magistrate. The confessional statement  was not the only fact upon which the detaining authority  had passed  an order.  In the  premises even if the confessional statements which were ret- 702 racted as  such could  not be  taken  into  consideration  , there  are  other  facts  independent  of  the  confessional statement which can reasonably lead to the satisfaction that the authorities had come to. [729E-G]      Ashadevi ,  wife of  Gopal Chermal Mehta (Detenu) v. K. Shiveraj Addl. Chief Secretary to the Government of Gujrat & Anr. [1979] 2 SCR 215 ,  distinguished.      In the  instant case  ,   there was no delay in serving the grounds upon the detenus. The father-detenu was detained on 20th June ,  1984. As required under s.8 (3) of the Act , the case of the detenu was referred to the Advisory Board on 18th July  ,   1984. The  representations submitted  by  the detenu  were  also  forwarded  to  the  Advisory  Board  for consideration. The  services of two persons were utilised by the Board  in understanding  the statement of the detenu and deciphering  the  representation  in  Gujrati  submitted  by detenu Venilal  Mehta to the State Government which was also forwarded to  the Board. Therefore ,  it cannot be said that detenus  have   not  been   given  proper   facility  to  be represented before  the Advisory  Board. Tee allegation that the detaining  authority did  not independently consider the representation of  the detenu  but mechanically followed the opinion of the Advisory Board cannot be sustained in view of the fact and circumstances of this case.[759H; J30 A-D]

&      CRIMINAL  ORIGINAL   JURISDICTION   :   Writ   petition (Criminal) NOS.1721 , 1722 and 1724 of 1984.          Under Article 32 Of the Constitution of India.      P. Govindan Nair ,  G.L. Sanghi ,  Farook M. Razaak and H.K. Puri for the Petitioners.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 24  

    T.S. Krishnamurthy  Iyer and E.M.S. Anam for Respondent Nos. 1 and 2.      N.C. Talukdar  and ,   R.N.  Poddar for  the Respondent NO.3.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI  ,   J. One  allegedly  Venilal  D. Mehta is  the father.  Miss Pragna Mehta is the daughter and Bharat Mehta  is the  son. They all have been detained under the Pro  visions of  Conservation of  Foreign  Exchange  and Prevention of  Smuggling Activities Act ,  1974 (hereinafter referred to  as the  ’Act’) ,   by  virtue of an order dated 19th June ,  1984. 703      Their detentions are challenged in three writ petitions under Article  32 of  the Constitution  ,   filed by Prakash Chandra Mehta ,  another son of Venilal D. Mehta and brother of Miss Pragna Mehta and Bharat Mehta.      The facts of these cases basically more or less are the same  with certain minor variations which would be noticed.      On the  2nd May  ,   1984 ,   the  father and  daughter Venilal D.  Mehta and  Pragna Mehta  were  arrested  by  the officers of  the Central Excise and Customs ,  Cochin on all accusation of  having in  their possession  60 gold biscuits alleged to  be of  foreign origin. After their arrest ,  the father and  his daughter  were taken  to the  office of  the Central Excise  and Customs  ,  Cochin where statements were made on  their behalf. It is ,  however ,  the allegation of the petitioner  that such statements were obtained by use of third degree method ,  molestation of the daughter ,  threat and intimidation.  We are  not concerned  with the  truth or otherwise  of  such  allegation  for  the  purpose  of  this application. The  statements of  the daughter as well as the father were  written by  the daughter. It is further alleged in the  petition that  the  statement  was  written  by  the daughter as dictated by the officers concerned. The father , Venilal D.  Mehta put  his signature  in English as ’Balvant Shah’. It  must be  noted  that  statement  in  English  was written by  the daughter.  lt is alleged that the father and the daughter  told the  officers concerned  that the correct name of  the father was Venilal Mehta. It is the case of the father in  the petition  on his  behalf  that  he  does  not understand ,  read or speak or write English but he can only sign his  name in  English. After  the said  statement.  the father and the daughter were taken to the Hotel Dwarka where they were  kept in  separate rooms  under the  guard of  the officers. [t  is alleged  on behalf  of the  father and  the daughter that  no legal  assistance was  allowed in spite of repeated requests.      On the  next day  ,   the father  and the daughter were brought to  the office  of the  Central Excise and Customs , Cochin ,  where once again ,  the daughter wrote a statement on her  behalf and  on behalf  of her  father. It is alleged that neither  the said statement was explained to the father nor a  copy was  supplied. After  the said  recording of the statement ,  both the father and the daughter 704 were kept detained at the Customs Department.      In the meanwhile one Bharat Mehta ,  another son of the father Venilal  Mehta who  had come from Calcutta to arrange for bail  was brought  under arrest  by the  officers of the Central Excise  in the  presence of the father and was asked to identify  the father and his sister whereupon Shri Bharat Mehta identified  Shri Venilal  D. Mehta  as his  father and Miss Pragna  Mehta as his sister. Upon such identification , Miss Pragna Mehta wrote down a third statement-one on behalf

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 24  

of her  father and one on her own behalf. It is alleged that such statements were dictated by the officers of the Central Excise.      Bharat Mehta  also wrote down a statement on his behalf which is  similarly alleged to have been written as dictated by the  officers.  Then  all  the  three  aforesaid  persons Venilal D.  Mehta ,  Miss Pragna Mehta and Bharat Mehta were produced before  the Acting Chief Judicial Magistrate on 5th May ,   1984  at 8.  30 P.M.  at his residence at Vanala and were reminded to jail custody.      So far  as Bharat  Mehta is  concerned ,   on 2nd May , 1984 ,   he  was in  Calcutta and  he was  informed  by  his brother from  Bombay that  his father  Venilal Mehta and his sister Pragna  Mehta had been arrested and upon hearing that he left  for Bombay  and arrived  in Bombay  by the  evening flight. On  the following  day i.  e. On  3rd  May.  1984  , Bharat Mehta  left on  the morning  flight  for  Cochin  for arranging bail  for his  father and  sister. At  the  Cochin Airport ,  he was apprehended by the officers of the Central Excise who  desired to  interrogate him  and  was  thereupon brought  to  the  office  of  the  Central  Excise  and  was interrogated about  his complexity in the smuggling of gold. According to  Bharat Mehta  ,   as he had nothing to do with the smuggling  of gold  ,   he denied  having any connection with the  same.  Thereafter he was allowed to go. On 4th May ,   1984 the  room in  the Indian  Airlines Hotel. Ernakulam where he  was staying  was searched  by the  officers of the Central Excise  and Customs. Though Bharat Mehta states that nothing incriminating  was found  ,   the Custom Authorities had seized  Indian currency  notes amounting  to Rs.  24,865 which sum  ,   he alleged  to have  brought for  meeting the legal expenses.  Thereafter ,  he was arrested and  taken to identify his 705 father and sister as mentioned hereinbefore. When all  the three  were remanded  to jail  custody ,   the father  ,     the  daughter  and  the  son  retracted  their statements. They made complaints to the Collector of Central Excise  and   Customs  about   the  manner  in  which  their statements were  obtained. Application for bail was moved on 7th May  ,   1984 before  the learned  Acting Chief Judicial Magistrate Miss  Pragna Mehta  was allowed interim bail till 7th May ,  1984. On 8th May ,  1984 the bail application was rejected. After  the cancellation  of her bail application , Pragna Mehta  moved an  application under section 439 of the Code of  Criminal Procedure  ,   1973 before the Kerala High Court and  the High  Court was  pleased  to  grant  bail  on certain conditions.  She was served with the detention order on 20th  June ,   1984 ,  and the detenu was served with the grounds of  detention in English language. Hindi translation of the  grounds of  detention was  served on , the detenu on 30th June ,  1984.      The  father’s   bail  application  was  ,    however  , rejected  by   the  Kerala   High  Court.   The  father  was transferred on  24th May ,  1984 from sub-jail ,  Ernakulam. to the  General Hospital  ,  Ernakulam because he had become ill. He was thereafter admitted in the General Hospital.      The son’s  bail application  was also  rejected by  the High Court  of Kerala  and he  was also  transferred to  the General ,   Hospital  ,   Ernakulam because  he became  ill. Thereafter on  6th June  ,  1984 ,  application for grant of bail was  moved on  behalf of  the father and the son before the Sessions  Judge and the said application was rejected on 12th June ,  1984 in respect of both of them.      Both Bharat Mehta and Venilal Mehta were transferred to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 24  

the Medical  College Hospital  ,  Kottayam for treatment. On 20th June  1984 ,   the  father and the son while in custody and undergoing  treatment in  Medical College  Hospital were served  with  the  detention  orders  under  the  said  Act. Thereafter they  were transferred  to the  Central Prison  , Trivandrum.      On 25th  June ,  1984 ,  the grounds were served on all three of  them. It  is alleged  that the  said grounds  were served nearly  at midnight  and  said  grounds  served  were written in English while 706 some of  the accompanying documents about six in number were In Malayalam.      On 25th  July  ,    1984  Miss  Pragna  Mehta  made  an application  praying  ,    inter  alia  that  the  order  of detention by  revoked and  she may be set at liberty. On 4th August ,   1984  ,   she wrote  a letter  to the  Chairman , Advisory  Board   seeking  the   assistance   of   a   legal practitioner  or   a  friend   during  the   Advisory  Board proceedings. It  is alleged  that on  or about  6th August , 1984 ,   she  was informed  at 9.00  A.M. for the first time that she  had to  appear before  the Advisory Board at 10.00 A.M.      It is her case that she appeared without being given an opportunity of  being assisted  by any  friend. She  further alleges that  she being  the only  lady detenu  in  solitary confinement ,   after  coming back  from the  Advisory Board meeting made a representation to the detaining authority for certain jail  facilities namely  ,   facility of home cooked food,   reading and writing materials ,  frequent interviews with relations and friends ,  facility of writing letters to mother  in   Gujrati  language  ,    sewing  and  embroidery materials and hygienic toilet facility.      She made  a representation to the Central Government on 9th August. 1981 for revocation of her detention order.      On 11th  August ,  1984 ,  a letter was received by her from  the   Commissioner  and   Secretary  to  Government  , Government of  Kerala respondent  No. 1  that there  was  no provision for  home cooked  food and  there was  no solitary confinement ,   that  interviews ,   and  all  outgoing  and incoming letters  are required to be censored and no special restrictions have been imposed upon her. She alleges that on 13th August  ,   1984 ,   she  came to  know from  the  jail authorities  that  the  Advisory  Board  had  confirmed  the detention of  her and of brother and father for one year and that the  opinion of the Advisory Board was published in the local newspaper Mothrubhumi on 13th August ,  1984.      On 23rd  August ,   1984 she received a letter that her representation dated  25th July ,  1984 had been rejected On 24th August  ,   1984 she  received a  letter from the Under Secretary to  the Government  of India  in terms whereof she was informed that her repre- 707 sentation dated  9th August ,  1984 addressed to the Central Government had been rejected.      On 23th  August ,  1984 ,  she was served with an order issued by respondent No. 1 whereby she was informed that the Advisory Board  in its  report had  expressed that there was sufficient cause for detention of the detenu and accordingly ,   the Government  confirmed the  order of  detention for a period of one year.      So far as father ,  Venilal Mehta is concerned ,  it is his case  that Hindi translation of grounds of detention was served on  him on  30th June  ,   1984. While  supplying the Hindi translation  Of the  grounds ,   the  annexures  being

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 24  

annexure Nos.  1. 6  ,   8 ,  27 ,  38 and 47 of the list of documents were  supplied in Malayalam. It is the case of the father that  he does  not know how to read ,  write or speak English or  Hindi or Malayalam. He can only sign his name in English. But  thereafter on  27th May  ,   1984  he  made  a representation in Gujrati to the detaining authority praying that he  was unable to read ,  write either English or Hindi or Malayalam  and the  grounds of  detention may be given to him duly translated in Gujrati.      On 5th  August ,   1984  ,  he was informed by a letter dated 4th  August ,  1984 that his representation could only be examined  after the  same was translated into English. On 5th August ,  1984 he made a representation to the detaining authority praying  that his  detention order may be revoked. He was informed on 6th August ,  1984 at 9. 15 A. M. that he would have to appear before the Advisory Board at 10.00 A.M. He appeared before the Advisory Board and the Advisory Board had confirmed his order of detention on 13th August ,  1984. He received a letter on 25th August ,  1984 that his request for supply  of grounds  of detention and connected documents was  not   considered  necessary   by  the  Government.  The representation dated 9th August ,  1984 was rejected and the same was communicated to him by a letter dated 28th August , 1984 ,   and he was informed on 31st August ,  1984 that the Advisory Board  was of the opinion that there was sufficient ground for detention. He was also informed by a letter dated 10th August ,  1984 that his representation dated 5th August ,  1984 had been rejected.      More or less similar is the Case of the son except that he 708 did not plead ignorance of any language English or Hindi.      As mentioned  hereinafter ,   all  the three  detention orders have  been challenged by Prakash Chandra Mehta ,  the son of  Venilal Mehta and brother of Bharat Mehta and Pragna Mehta by these three separate writ petitions.      The father  had on  or about  30th June  ,  1984 made a representation for  mercy. It  was written  in  English  but signed in Gujrati. It is the case of the father that his son brought this representation prepared by his wife and without understanding he  signed the  representation for  forwarding the same to the proper authorities. The detenu Venilal Mehta ,   the father  and Bharat Mehta ,  the son ,  were detained on grounds  mentioned in  section 3 (1) (iii) and 3 (i) (iv) of the  Act and the detenu Miss Pragna Mehta ,  the daughter was detained  on grounds mentioned in section 3 (i) (iii) of the said  Act. The  said orders were dated 19th June ,  1984 were served  on 20th  June ,   1984 alongwith the grounds in English It  was  further  mentioned  in  the  communications containing the said grounds that the said grounds were being communicated to  them for  the purpose  of Article 22 (5) of the Constitution  and they  were given opportunities to make representation against the said grounds.      The grounds  of detention  stated that  on the basis of intelligence received  a search  of room  No. 316 of Dwaraka Hotel at  M.G. Road  ,  Ernakulam ,  was conducted and after being identified  it was stated that the Customs authorities had reason  to believe  that gold of foreign origin was kept in the  room in the custody of B.V. Shah in contravention of the provisions  of the  Customs Act ,  1962 and Gold Control Act ,  1960. The occupants of the room ,  the father and the daughter had  informed that  they were  not having  any such articles. Thereafter the Superintendent and the party made a through search  in the presence of the independent witnesses ,   the occupants  and the  accountant of  the hotel  ,  Mr.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 24  

Jayaprakash. In  addition to the furniture in the room there were three suitcases and one vanity bag in side the room. On enquiry ,   the  father informed  that two  of the suitcases belonged to  him and  the third  suitcase and the vanity bag belonged to  his daughter.  The Superintendent requested the daughter  to  identify  her  suitcase  and  accordingly  she identified a  brown coloured  suitcase marked Aristocrat and vanity bag as hers. The two 709 suitcases claimed  to be  of the father were examined by the Superintendent.  There   were  no   gold  or   incriminating documents   in the  suitcases. The  Superintendent asked the daughter to open her suitcase and accordingly she opened the suitcase by  taking a  key from  her vanity  bag.  When  she opened ,   the  suitcase was  found to  contain one inflated air pillow  and certain  personal clothings- Beneath the air pillow and  the personal  clothings ,   there was some thing warped in  a Turkish  towel.  When  the  Turkish  towel  was removed three paper packets with abnormal weight were found. The  Superintendent  enquired  Or  the  daughter  about  the contents of  the three  packets and she had remained silent. Immediately the  father disclosed that the packets contained gold biscuits  of foreign  origin. When  the  Superintendent asked about  the quantity  ,   the father  informed that the three packets  totally contained 60 gold biscuits ,  with 25 gold biscuits  each  in  two  bigger  packets  and  10  gold biscuits in  the small  packet. All  the three  packets were covered with  paper bearing  printed  English  letters.  The three packets  were opened and examined and found to contain 60 gold  biscuits ,   with  25 gold  his suits  each in  two packets and 10 gold biscuits in the third packet. All the 60 gold biscuits were thoroughly examined ,  weighed and purity tested by  a certified  goldsmith. Each  gold  biscuits  was found to be of 24 carat purity with a weight of 116.5 grams. The total  weight and  other particulars  of the  said  gold biscuits and  other particulars  of certain  other materials found were  mentioned. It is unnecessary to set these out in detail. The persons of both the father and the daughter were searched. Nothing  incriminating was found from the daughter ,   but certain  documents which  are noted as incriminating were found  from the  person of father ,  the particulars of the said  documents have also been set out in that: grounds. It is  not relevant for our present purpose to set these out in detail.      The Superintendent  asked the  daughter and  the father whether they  were having  any valid  documents to prove the nature of  import and  prove the  legal possession of the 60 gold biscuits  of foreign origin recovered from the suitcase claimed to  be of the daughter. She replied that she did not have any  such document  and that she carried the above said gold biscuits  from Bombay  to Cochin  as  directed  by  her father. The  father also said that he had no valid documents to prove  the nature  of import  of the  60 gold biscuits to India and for the possession of 710 the same  and that  the daughter  carried the  gold biscuits from Bombay to Cochin as directed by him.      In the premises it was stated that there was reasonable belief that  60 gold  biscuits were  smuggled into India and acquired and  possessed and  dealt with  in contravention of the Customs Act ,  1962 and the Gold Control Act ,  1960 and hence were liable for confiscation.      The show  cause notice  further stated  that the entire articles in  the suitcase  from which the gold biscuits were recovered ,   the  key of  the suitcase  and  the  documents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 24  

recovered from  the vanity bag of Miss Pragna Mehta and from the shirt  pocket of  Venilal Mehta  (B.V. Shah)  were  also seized for  further necessary  action. The value of the gold biscuits seized  came to  round about Rs. 14 lakhs. B.V Shah alias Venilal Mehta ,  Miss Pragna Mehta and the independent 1) witnesses  have  signed  on  the  documents  and  on  the mahazar. Mr.  Jayaprakash accountant  of Dwaraka  Hotal  had also appended  his signature  in the  mahazar.A copy  of the mahazar was  also given to B.V. Shah alias Venilal Mehta and his acknowledgement was obtained on the original.      Ground I  (b) stated  about the  search on intelligence report of  Hotel Airlines  at M.G.  Road ,  Ernakulam. It is not necessary  to set  out in  detail the  documents and the currency notes  seized ,  particulars whereof were stated in the said show cause.      In Ground  I (c)  ,   the search and seizure of Swastic Society ,   Bombay  have been  set  out.  Certain  telephone numbers are  noted. The  documents seized  from  this  place included telephone  bills  installed  at  the  residence  of Venilal Mehta  and two  other telephone numbers noted in the paper. Other  details of  the ground and facts of the search need not be set out in detail.      In  Ground   I  (d)   ,     it  was   stated  that  the Superintendent of  Customs searched premises of R.D. Mehta & Co. and  certain particulars  of telephone numbers and other documents recovered were stated therein.      In  Ground   I  (e)   ,     it  was   stated  that  the Superintendent searched  the silver  refinery controlled  by Shri Partap Sait. Certain 711 diaries and  documents are  seized.  The  telephone  of  the refinery is  37144. In the documents and diaries seized from the silver  refinery ,  phone number 625768-the phone number of the residence of Venilal Mehta was found entered.      In Ground  I (f)  ,   it  was  mentioned  that  certain documents  were   recovered  from   Sadasiva  Sait  ,    the particulars whereof  arc mentioned therein the grounds. As a result of  search 10  foreign made  gold  biscuits  weighing 116.500 grams each ,  8 primary gold bars weighing 1714 gms. and one  gold piece weighing 95 gms. were recovered from the office room.  It is  further stated in the show cause notice in ground  11 (iii)  that during  the sight  seeing trip  to Cochin with  family in  January ,   1983  Venilal Mehta  had contacted different jewellers in Cochin. Shri Pratap Sait of Shalimar Jewellery ,  Cochin alone responded to the business of Venilal Mehta.      These were entered into in the statement signed by Miss Pragna Mehta which of course ,  she had retracted thereafter      From different  searches at  different places telephone number 37144  of Pratap  Sait (at  the  silver  refinery  of Pratap Sait) was found in various documents.      In Ground  II (c)  ,   the  statements  recorded  under section 108  of the  Customs Act by Venilal Mehta and others were mentioned. It is not necessary in view of the fact that these statements have been retracted ,  to refer and set out the said grounds in detail.      In Ground  II (f)  ,  the interrogation of Bharat Mehta is set  out. Here also the same cannot be set out because he has also retracted.      In Ground  III ,   it is mentioned that Venilal Mehta , Miss  Pragna  Mehta  and  Bharat  Mehta  were  arrested  and produced before  the  then  Chief  Judicial  Magistrate  who granted permission  to interrogate  Shri Venilal  Mehta  and Shri Bharat  Mehta in  the presence  of Jail Superintendent. Thereafter Bharat  Mehta was  interrogated and the result of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 24  

such interrogation is mentioned in Ground IV. The same again cannot be relied on because these have been retracted.      In Ground  V(1) ,   it was stated that Shri Pratap Sait of 712 ’Mahadev Parvathy  House’ was interrogated under section 108 of the  Customs Act.  He denied having seen Venilal Mehta or B.V. Shah.  He also  denied  any  dealings  with  B.V.  Shah regarding the gold biscuits.      In Ground  V (2)  ,   it was  stated that  Mr.  Prakash Krishnan Yadav  ,   an employee  of the  silver refinery was interrogated under section 108 of the Customs Act. He stated that his  normal work  in the refinery was purifying silver. He used  to purify the gold from Shalimar Jewellery also. He knew Bharat  Mehta ,   Venilal  Mehta and Rashmi Mehta. They used to  come to the refinery. They used to meet the younger brother of  Pratap Sait ,  Shri Suresh. They were doing some secret business.  Suresh used  to entrust  him with  certain bundles of  notes to  be handed over to Venilal Mehta or his sons. This  he used  to do.  The documents  seized from  the refinery contained  the accounts  of agriculture  and grapes were written  by Pratap  Sait. Some  times Venilal  Mehta  , Bharat Mehta  and Rashmi  Mehta used  to stay  at Hotel Blue Diamond and  he had  1> met  them while they were there. The telephone number  of the refinery ,  he stated ,  was 37144. His statement  was read  over to  him  and  admitted  to  be correct. This statement was not retracted.      In Ground  V (3)  ,  it was stated that one Shri Suresh Mahadeva Salunkhe  S/o Mahadev  Dari Salunkhe  was  examined under section  108 of  the Customs  Act. He  has also  given certain facts  about the business of Pratap Sait and others. He said that Pratap was looking after Blue Diamond Hotel. He also knew Venilal Mehta ,  Bharat Mehta and Rashmi Mehta. He further stated  that Venilal Mehta came to the refinery some time ago  and thereafter  as per the telephonic direction of his brother  ,   Shri Pratap  Sait ,   he received some gold biscuits from  him and  had given  these to his brother. His brother gave  a bundle  of currency notes. This was repeated many times.      In Ground  V (4)  ,  it was stated that one Shri Suresh S/o Damodharan  ,  was interrogated under section 108 of the Customs  Act.  He  also  stated  certain  facts  giving  the connection and the phone number of Venilal Mehta. These have been set  out in  details in  the ground. The particulars of other grounds in V (5) need not be set out in detail. 713      In Ground  VI (i)  ,  it was stated that as a follow up action ,   the  house of  Pratap Sait  at Convent Junction , Cochin was  searched. No  contraband goods  or incriminating documents  were   recovered.  Shalimar  Jewellery  was  also searched In the premises ,  it was stated ,  against Venilal Mehta that  evidence collected showed that Venilal Mehta had large scale  dealings in  smuggled gold biscuits.A paper bit recovered from  him on  2nd May  ,  1984 ,  which show d the details of  transaction and  the particulars of the writings of the  paper have been set out in the show cause notice and it is  further stated that one Sadasiva Sait was apprehended with 2974  grams foreign gold biscuits and the numbers shown against the  letters ’S’  in the  paper  mentioned  here  in before related  to the  gold biscuits  delivered to  him  by Venilal Mehta  and his  sons on  the dates mentioned against each. From  this ,   according  to the  respondent ,  it was evident that  the other  numbers shown  were also related to gold biscuits-  As set  out before  ,   Sadasiva Sait in his statement stated  that letters  ’P’ might  be in relation to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 24  

Pratap Sait and letter ’B‘ might be in relation to Bhim Rao.      From the aforesaid ,  it was stated that it was evident that Venilal  Mehta ,   and  in the  case of the other two , son and the daughter more or less similar grounds are made , was dealing  in smuggled  gold biscuit   and  that  60  gold biscuits weighing 6990 grams and valued at Rs. 14 lakhs were seized and that Venilal Mehta ,  sons Rashmi Kanth Mehta and Bharat Mehta  and Miss Pragna Mehta were actively engaged in the business  of smuggled  foreign  gold  biscuits.  Venilal Mehta was  the master  brain behind  this business.A list of documents was  annexed. The  search list  and the deposition and necessary  documents ,   the panchnama and he statements were also annexed with the show cause notice.      One of  the documents which is annexed to the affidavit in opposition  of the  respondents is a mercy petition which is annexure  R-1 dated  30th June  ,   1984 addressed to the Secretary and  Commissioner ,   Home  & Vigilance  ,    Home Department ,  Government of Kerala ,  Trivandrum through the Superintendent ,   Central  Jail ,   Trivandrum.  In that he stated as follows:-           "I ,   Venilal  M Mehta  ,   beg to request you to      give kindly  and sympathetic attention to the following      few 714 lines and render mercy to me.           I am  an old  man of  60 years.  I had my peaceful      life as  a business  man and  commanded respect  in the      business circle  and friends.  I myself am surprised to      understand what prompted me to involve in such activity      as dealing  in Imported  Gold. My  financial and social      status was  unblemished during  all these  years of  my      life. I  would not  say it  was a greed it was only the      destiny that played this part.           Looking to my old-age and unstinted career up till      now ,  I beg you to show mercy on me and t o revoke the      order of  detention under  COFEPOSA. I  assure you that      never in  my life to come ,  I will indulge in any such      activity there are detrimental to the nation as a whole      and me in particular.      Thanking you in anticipation of your favours ,                                           Yours faithfully ,      Trivandrum ,                                       Sd/-      30th June ,  1984.                  (Venilal M. Mehta)"      It was written in English but signed in Gujrati. It was stated as  mentioned  before  that  it  was  signed  without understanding as  this was  sent by the wife of the detenu , Venilal Mehta.      The charges  against the  daughter were under section 3 (1) (iii) ,  and against the father ,  Venilal Mehta and the son ,   Bharat Mehta ,  these were under section 3 (1) (iii) and 3  (1) (iv)  of the said Act. The relevant provisions of section 3 of the said Act reads as follows:-           "3.  Power   to  make   orders  detaining  certain      persons-  (1)  The Central  Government or the State Government or any officer of the Central Government ,  not below the rank of a Joint Secretary  to that  Government ,  specially em powered for the  purposes of  this section  by that Government ,  or any officer of a State Government ,  not below the rank 715      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 24  

    prejudicial to  the  conservation  or  augmentation  of      foreign exchange or with a view to preventing him from-      (i)  XXXX      (ii) XXXX      (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)  XXXX      it is  necessary so  to do  ,   make an order directing      that such person be detained"      Before we  consider the  submissions on  behalf of  the detenus in this case ,  certain board facts have to be borne in mind.  Search of room No. 316 of Dwarka Hotel M.G. Road , Ernakulam ,  by the Superintendent of the Central Excise and Customs ,   Cochin  stands demonstrated.  It also  cannot be disputed that  the occupants  of the  room at  the  time  of search were  Venilal Mehta  alias B.V.  Mehta  and  daughter Pragna Mehta.  60 gold  biscuits  were  recovered  from  the suitcase belonging  to Miss  Pragna Mehta. Details have been mentioned in  Ground I(a)  ,  Panchnama regarding the search and seizure  was prepared and was signed by the daughter and the father  and attested by independent witness-one of being the accountant  of the  Hotel Secondly  ,    B.V.  Shah  was interrogated and  he made  certain statements.  On 2nd May , 1984 ,   there  was search  of the  house of  Pratap Sait at Ernakulam. On  the same  day ,    Shalimar  Jewellery  Fixed Deposit Door  No. 37/8  ,  Broadway ,  Cochin was searched , The statements of B.V. Shah or Venilal Mehta ,  Pragna Mehta and Bharat Mehta under section 108 even if these are ignored ,  there 716 were searches  and statement  by one Shri S. Kumar and there was also  search on  14th May  ,   1984 of  the  residential quarters of  Venilal Mehta  at Bombay where telephone having No 625768  was installed. This telephone number tallied with certain papers  of Pratap  Sait and  other houses  mentioned here in before.      There was  search of  the premises  of Venilal Mehta in the name  of  R.D.  Mehta  &  Co.  Bombay.  There  also  the telephone numbers  339774 and  338286 were  found installed. These tallied with the telephone numbers found in the papers in other  houses The  documents recovered  from  R.D.  Mehta included telephone  bills of  phone No.  625768 installed at the house  of Venilal  Mehta which showed that from the said phone trunk calls were booked to Cochin telephone Nos. 37144 and 33221  Ernakulam ,   37144  is the  telephone number  of Silver Refinery  and 33221  is the  telephone number of Blue Diamond Hotel controlled by Pratap Sait.      The search  of Silver Refinery owned by Pratap Sait was made on  21st May ,  1984. Two diaries and certain documents were seized.A  Panchnama was  prepared. In  the diary seized from the  Silver Refinery  ,   telephone No.  625768 of  the residence of Venilal Mehta was found entered.      Then there  was statement of Prakash Krishna  Yadav v , one of  the employees of Silver Refinery where he had stated Venilal Mehta  ,   Bharat Mehta and another son of Venilal M Mehta used  to come  to Refinery.  He had    further  stated that they  (the aforesaid  named persons)  used the meet the younger   brother Or Pratap Sait 1’ and they were doing some secret business.  Suresh usual to entrust him with bundle of notes to be handed over to Venilal Mehta and his sons. These statements were made under section 108 of the Customs Act by these persons  and these  statements were  not retracted. He

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 24  

further stated  that he  had met  them at Hotel Blue Diamond when they  had stayed  there. In  the statement  of Suresh M Chalunka ,  younger brother of Pratap Sait ,  he established the connection  of B.V.  Shall with  the refinery  of Pratap Sait at  Ernakulam. He also confirmed that they were dealing in gold  biscuits. He  did not  know how  many gold biscuits were there.  Mr. Bharat  and Mr. Rashmi ,  sons of B.V. Shah used to  come ,   according  to his  statement ,   with gold biscuits. He  used to  receive the  gold biscuits  and  give these to his brother Pratap Sait. 717      Shri Suresh  ,   receptionist of  Blue Diamond Hotel in statement on  25th May  ,  1984 under section 108 of Customs Act had  stated that  on  3rd  May  1984  ,    Bharat  Mehta contacted him  over the  phone and accordingly he and Bharat Mehta met  at Oberoi  Hotel. Bharat  Mehta had told him that his father  and sister  were caught  with gold  biscuits and requested for  help.  On  5th  June  ,    1984  ,    Customs Department  Superintendent   party  arrived  at  the  Silver Refinery ,   Trichur of Sadashiv Sait and as a result of the search 10  foreign made  gold biscuits  ,   8  primary  gold biscuits and 1 gold piece were recovered. Then on 5th June , 1984 ,   Sadashiv  Sait was  interrogated. Extracts from his examination have  been set  out here  in  before  ,    which clearly established  the connection  of Venilal  with  these transactions. Some  documents were  recovered from B.V. Shah (Venilal) while  he was  caught with  60 gold  biscuits  and letter ’S’ has been explained as indicated before.      On the  above facts  ,   detailed show cause notice was issued. It  is true  that in  the said  show cause  ,    the statements of  Venilal Mehta on 2nd May ,  1984 ,  3rd May , 1984 and  4th May  ,   1984 were also taken into account but Annexure ’C’  to letter  to  the  Collector  retracting  the statement was not taken into account.      It has  therefore to  be examined  that in  view of the fact that  the whole  statement had  been retracted ,  these statements  should  have  been  considered  along  with  the retraction.  The   fact  of   not  doing   so  will  require examination. It  may ,   however ,  be mentioned that in the counter-affidavit ,   it  has been  stated that the basis of the detention  order was  not  only  the  statement  by  the detenus but  also other materials which were supplied to the detenus.      In support  of these applications ,  the following main grounds were urged namely:      (1) The grounds were not communicated to the detenus in a language understood by them.      (2) The  retraction of  the confessions  or  statements made under section 108 of the Customs Act had not been taken into consideration. 718      (3) There  was delay  in serving  the grounds  upon the detenus.      (4) The  detenus were  not allowed  to  be  represented properly before the Advisory Board.      (5)  The   fact  that   there  was  retraction  of  the confession having  not been  taken  into  consideration  the proceedings were vitiated.      (6)  The  detaining  authority  did  not  independently consider the  representation  of  detenus  but  mechanically followed the advice of the Advisory Board.      Preventive   detention    under   certain    prescribed circumstances  under  the  provisions  of  certain  Acts  is permissible in  India with certain constitutional safeguards and  the   preventive  detention  which  is  recognised  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 24  

permitted by  our Constitution  must be resorted to strictly within those constitutional safeguards ,      Article  22   ensures  protection  against  arrest  and detention except  in certain  prescribed  circumstances  and conditions. Article  22(4) of  the  Constitution  stipulates that  no   law  providing  for  preventive  detention  shall authorise the   detention  of a  person for  a longer period than three months unless.           (a) an  Advisory Board  consisting of  persons who      are ,  or have been ,  or are qualified to be appointed      as ,   Judges  of a  High Court has reported before the      expiration of  the said  period of  three  months  that      there is  in its  opinion  sufficient  cause  for  such      detention;           Provided that  nothing in  this  sub-clause  shall      authorise  the  detention  of  any  person  beyond  the      maximum period prescribed by any law made by Parliament      under sub clause (b) of clause (7); or           (b) such person is detained in accordance with the      provisions of  any law  made by  Parliament under  such      clauses (a) and (b) of clause (7).      Clause l 5 of Article 22 reads as follows:- 719           "(5) When  any person  is detained in pursuance of      an order  made under  any law  providing for preventive      detention ,  the authority making the order shall ,  as      soon as  may be  ,   communicate  to  such  person  the      grounds on  which the  order has  been made  and  shall      afford  him   the  earliest  opportunity  of  making  a      representation against the order’. Clause (6)  provides that  nothing clause  (5) shall require the authority  making any  such order  as is  referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. Clause (7) of Article 2?.  ensures that  the Parliament  may make  law  in certain manner prescribed in that sub-clause.      Therefore it  was contended  that the order and grounds should be  communicated to  the detenus  in the languages or language they  understood. According  to  the  petitioner  , Venilal Mehta  understood nothing except Gujrati. He did not understand English  or Hindi  or Malayalam.  The grounds  of detention  were  initially  supplied  to  Venilal  Mehta  in English on  25th June  ,   1984 i.e. within five days of his arrest or  detention. But  certain accompanying documents in Malayalam language  were supplied to him namely ,  item Nos. 1 ,  6 ,  8 ,  27 ,  38 and 47.      Sub-section (3)  of section 3 of the s lid Act provides as follows:-           "For the  purposes of  clause (5) of Article 22 of      the  Constitution  ,  the  communication  to  a  person      detained in  1 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."      In the instant case it was submitted that assuming that Venilal Mehta  knew Hindi  ,   the translated  copy  of  the English grounds  was admittedly  made available  to  him  in Hindi language  on 30th June ,  1984-beyond a period of five days and for which neither any excep- 720 tional circumstances  existed nor  an reason given. Moreover it was  urged  that  the  annexures  in  Malayalam  language

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 24  

retained their places while supplying the translated copy of the grounds of detention in Hindi language. Therefore it was urged that  there was  noncompliance with  the provisions of the Act.      It will  be appropriate  to deal with the first ground. Whether the  grounds should  have been  communicated in  the language under  stood by  the  detenus  ?  The  Constitution requires that the grounds must be communicated. Therefore it must follow  as an  imperative  that  the  grounds  must  be communicated  in   a  language   understood  by  the  person concerned so that he can make effective representation. Here the definite case of the petitioner’s father is that he does not understand  English or Hindi or Malayalam and does under stand only  Gujrati language.  The facts  revealed that  the detenu Venilal  was constantly  accompanied and  was in  the company of  his daughter  as well  as son  both of them knew English very  well. The  father signed a document in Gujrati which was  written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. That document dated 30th June ,  1984 contained , inter alia  ,    a  statement  "I  myself  am  surprised  to understand what  prompted me  to involve in such activity as dealing in Imported Gold". He further asked for mercy. There is no  rule of  law that  common sense should be put in cold storage  while  considering  constitutional  provisions  for safeguards against  misuse of  powers by  authorities though these   constitutional   provisions   should   be   strictly construed. Bearing  this  salutary  principle  in  mind  and having regard  to the  conduct of  the detenu  Venilal Mehta specially in  the mercy  petition and other communications , the version  of the  detenu Venilal  is feigning lack of any knowledge  of   English  must   be  judged   in  the  proper perspective. He was ,  however ,  in any event given by 30th June ,   1984  the Hindi translation of the grounds of which he claimed  ignorance. The  gist of the annexures which were given in  Malayalam language had been stated in the grounds. That he  does not know anything except Gujrati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is  not denuded to its powers to examine the truth. He goes to  the extent  that he  signed the  mercy petition not knowing   the contents  ,  not understanding the same merely because his  wife sent  it though he was sixty years old and he was  in business and he was writing at a time when he was under arrest , 721 his room  had been  searched  ,    gold  biscuits  had  been recovered from  him. Court  is not  the place  where one can sell  all   tales.  The  detaining  authority  came  to  the conclusion that  he knew both Hindi and English. It has been stated  so   in  the   affidavit  filed  on  behalf  of  the respondent. We  are of  the opinion  that the detenu Venilal Mehta was merely feigning ignorance of English.             We may here notice the first decision upon which reliance was  placed a  decision in the case of Harikisan v. The State  of Maharashtra & Others.(l) This Court reiterated that the  provisions of  Article 22  (5) of the Constitution required that  the grounds  should be  communicated  to  the detenu as  soon as may be and that he should be afforded the earliest opportunity  of making a representation against the order.  This   Court  reiterated  that  communication  meant bringing home to the detenu effective knowledge of the facts and the  grounds on  which the  order was based. To a person who was not conversant with the English language ,  in order to satisfy the requirement of the Constitution ,  the detenu must be  given grounds in a language which he can understand

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 24  

and in  a script  which he  can read  ,  if he is a literate person  ,    in  that  case  it  was  held  that  mere  oral translation at  the time  of the  service was not enough. In that case  the detenu was served with the order of detention and the grounds in English. He did not know the language and asked for a translation in Hindi. The request was refused on the ground  that the  grounds had  been orally translated to him at  the time these were served upon him and that English was still  being the  official language  ,  communication of the order  and grounds in English was in accordance with the law and  the Constitution. This Court observed at pages 925- 926 of the report as follows:-           "If the  detained person  is conversant  with  the      English language  ,  he will naturally be in a position      to understand  the gravamen  of the  charge against him      and the  facts and  circumstances on which the order of      detention is  based. But  to a  person who  is  not  so      conversant with  the English  language ,   in  order to      satisfy the  requirements of  the Constitution  ,   the      detenu must be given the grounds in a language which he      can understand ,  and in a script which (1).[1982] 2 Supp. S.C.R. 918. 722 he can read ,  if he is a literate person.           The  Constitution   has  guaranteed   freedom   of      movement throughout the territory of India and has laid      down detailed  rules as to arrest and detention. It has      also ,   by  way of  limitations upon  the  freedom  of      personal liberty  ,   recognised the right of the State      to legislate  for preventive  detention ,   subject  to      certain safeguards  in favour  of the detained person ,      as laid  down in  cls.(4) & (5) of Art. 22 One of those      safeguards is that the detained person has the right to      be communicated  the grounds  on  which  the  order  of      detention has been made against him ,  in order that he      may be  able to  make his  representation  against  the      order  of   detention.  In   our  opinion  ,    in  the      circumstances of  this case  ,   it has  not been shown      that the appellant had the opportunity ,  which the law      contemplates in  his favour  ,    making  an  effective      representation against  his detention.  On this  ground      alone ,  we declare his (I detention illegal ,  and set      aside the  Order of  the High  Court and  the Order  of      Detention passed against him."           The principle is well-settled. But in this case it has to  be borne in mind that the grounds were given on 25th June ,   1984  following the  search  and  seizure  of  gold biscuits from  his room  in the hotel in his presence and in the background  of the  mercy petition  as we have indicated and he  was in constant touch with his daughter and sons and there is no evidence that these people did not know Hindi or English. Indeed  they knew  English as  well as Hindi. It is difficult to  accept the position that in the peculiar facts of this  case the grounds were not communicated in the sense the grounds  of detention  were not  conveyed to  the detenu Venilal. Whether  grounds were  communicated or  not depends upon the facts and circumstances of each case.             As early as in 1968 ,  in the case of Hadibandhu Dase v.  District Magistrate ,  Cuttack & Anr.(1) this Court was concerned  with a  case where  on December  15 ,  1967 , the District  Magistrate ,  Cuttack had served an order made in exercise  of power  under section  3(1) (a)  (ii) of  the Preventive Detention Act directing that (2) [1969] 1 S.C.R. 227. 723

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 24  

appellant be  detained on  various grounds. On December 19 , 1967 ,   the  appellant filed  a petition  in the High Court challenging the  order of  detention on the grounds ,  inter alia ,   that  the order  and the grounds in support thereof served upon  the  appellant  were  written  in  the  English language which  the appellant did not understand. On January 18 ,   1968  the  District  Magistrate  supplied  1  to  the appellant an Oriya translation of the order and the grounds. On January  28 ,   1968  ,   the State of Orissa revoked the order and issued a fresh order of detention.A translation of this order  in Oriya  was supplied  to  the  appellant.  The appellant  thereafter  submitted  a  supplementary  petition challenging the  validity of  the order  dated January  28 , 1968. The  High Court  of Orissa rejected the petition filed by the  appellant. There  was an  appeal to  this  Court  by certificate. It  was held  that in  the facts of that case , there was  no  proper  communication.  The  order  ran  into fourteen typed pages. Mere oral explanation of such an order without supplying  him a translation in a script or language which he  understood ,   amounted  to denial of the right of being communicated  the grounds  and of  being afforded  the opportunity of  making a  representation against  the order. The facts  in the instant case as mentioned hereinbefore are different.           In the case of Nainmal Partap Mal Shah v. Union of India and  Others (1)  ,  the detenu not conversant with the English  language  was  not  supplied  with  the  translated script. It  was stated  in opposition  that the grounds were explained to  the detenu  by the  prison  authorities.  This Court found  that who  explained it  was  not  stated.  This explanation was  not correct  and as such there is no proper communication. This  does not  help us  in the facts of this case.           It is submitted in the instant case before us that the accompanying  documents were  supplied to  the detenu in Hindi on 30th June ,  1984 beyond a period of five days. For this there  were no exceptional circumstances nor any reason had  been   recorded.  Reliance   was  placed   on   certain observations in  the case of Ibrahim Ahmad Batti v. State of Gujarat &  Others. (2) But again the facts of that case were entirely different because in the instant case all the (1)[1980] 4 S.C.C. 427. (2)[19831 1 S.C.R. 540. 724 factors were  pointed out  in the  grounds in  English which Venilal understood.  His mercy  petition  corroborates  that view. There  is no dispute that the other two detenus namely Pragna Mehta and Bharat Mehta knew English and Hindi. Indeed no point of non communication of the grounds was made out in respect of them.              It  was next  submitted that  the  detenus  had retracted the  alleged statements  by letters  dated 5th May and 6th  May ,   1984  addressed to the Collector ,  Central Excise  and  Customs.  While  the  statements  made  in  the confession or  statements before the Collector under section 108 had  been noted  in the  grounds of  detention  ,    the retraction had  not been  noted. It  was submitted  that the said retraction  was bound  to influence  the  mind  of  the detaining authority  one way or the other whether to make or not to  make the  detention order  and therefore  not taking this fact  into consideration  on or  about 19th/20th June , 1984 ,   there  was no  application of mind. It is true that retraction was not taken into consideration as it is evident from the  order of  detention ,   thought  the retraction as noted here in before ,  was considered before confirming the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 24  

order of  detention subsequently  after the  opinion of  the Advisory Board.           Section 5A of the said Act which was introduced by amendment in 1975 reads as follows:           ’5A. Grounds of detention severable-Where a person      has been detained in pursuance of an order of detention      under sub-section  (1) of section 3 which has been made      on two or more grounds ,  such order of detention shall      be deemed  to have been made separately on each of such      grounds and accordingly-      (a)  such order  shall not  be deemed  to be invalid or           inoperative merely  because one  or  some  of  the           grounds is or are-           (i) vague ,           (ii) non-existent ,           (iii) not relevant , 725      (IV) not connected  or not  proximately connected  with      such person ,  or      (V)  invalid for  any other reason whatsoever ,  and it      is not  therefore possible  to hold that the Government      or officer  making such order would have been satisfied      as provided  in  sub-section  (l)  of  section  3  with      reference to  the remaining  ground or grounds and made      the order of detention;      (b)  the Government  or officer  making  the  order  of           detention shall  be deemed  to have made the order           of detention  under the  said sub-section  (  I  )           after being  satisfied as  provided in  ground  or           that sub-section  with reference  to the remaining           grounds."          Section 5A stipulates that when the detention order has been  made on  two or  more grounds  ,   ’such order  of detention shall  be deemed  to have  been made separately on each of  such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad.              Article  22 (5)  of the  Constitution  has  two elements: (i)  communication of  the grounds  on  which  the order of detention has been made; (ii) opportunity of making a   representation   against   the   order   of   detention. Communication of the grounds pre-supposes the formulation of the grounds  and formulation  of the  grounds  requires  and ensures  the  application  of  the  mind  of  the  detaining authority to the facts and materials before it ,  that is to say ,   to pertinent and proximate matters in regard to each individual case  and excludes  the elements of arbitrariness and automatism.               The  ’grounds’  under  Article  22(5)  of  the Constitution do  not mean  mere factual  inferences but mean mere factual  inferences plus  factual material which led to such factual inferences. See the 726 observations of  this Court in the case of Smt. Shalini Soni Etc v. Union of India- & Ors. Etc.(1)              As  has been  said by  Benjamin Cardozo  ,   "A Constitution states  or ought  to state  not rules  for  the passing hour ,  but principles for an expanding future". The concept of  "grounds" ,   has to therefore ,  has to receive an interpretation  which will  keep it  meaningfully in tune with the  contemporary  notions  of  the  realities  of  the society and  the purpose of the Act in question in the light of concepts  of liberty  and fundamental freedoms guaranteed by Article  19 (1)  ,    21  and  22  of  the  Constitution. Reviewing several  decisions in  the  case  of  Hasmukh  S/o

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 24  

Bhagwanti M.  Patel v.  The State of Gujarat & Others. , (2) this Court  held that a democratic Constitution is not to be interpreted merely  from a  lexicographer’s angle but with a realisation that  it is an embodiment of the living thoughts and aspirations  of a  free people. The concept of ’grounds’ used in  the context  of detention  in Article  22(5) of the Constitution and in sub-section (3) of section 3 of COFFPOSA ,   therefore ,  has to receive an interpretation which will keep it  meaningfully in  tune with  a contemporary notions. While the  expression "grounds’’  for that  matters includes not only  conclusions of fact but also all the "basic facts" on  which  those  conclusions  were  founded  ,    they  are different from  subsidiary facts  or further  particulars or the basic facts.            In the instant case ,  the ground of detention is the satisfaction of the detaining authority that with a view to  preventing   the  detenu   from  acting  in  any  manner prejudicial to  the conservation  or augmentation of foreign exchange or  with a  view to  preventing the  detenu from  , inter alia  ,   dealing in  smuggled goods otherwise than by engaging  in  transporting  or  concealing  or  keeping  the smuggled goods  ,  or engaging in transporting or concealing or keeping  smuggled goods  the detention  of the  detenu is necessary. This  satisfaction was  arrived at  as inferences from several  factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without  taking note  of the  retraction  made thereafter. But  the inference of the satisfaction was drawn from several  factors which have been enumerated before.  We have to examine whether even if the facts (1) [1981] S.C.R. 962. (2) [1981] 1 S.C.R. 353. 727 stated in  the confession are completely ignored ,  then the inferences can  still be  drawn from  other independent  and objective facts mentioned in this case ,  namely the fact of seizure after  search of  60 gold biscuits from the suitcase of  the  daughter  in  the  presence  of  the  father  which indubitably belonged  to the  father and  admitted by him to belong to  him for  which no explanation has been given  and secondly the  seizure of  the papers  connected  with  other groups and organisations Pratap Sait and others to whom gold has been  sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining  authority for  detaining the  detenu for  the purpose of  section 3(1)  (iii) and 3(1) (IV). We are of the opinion that  the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument  was presented  in a  little  different  shade namely the fact or retraction should have been considered by the detaining  authority and  the Court  does  not know that had that  been taken  into consideration  ,  what conclusion the  detaining   authority  would   have  arrived  at.  This contention cannot be accepted. We are not concerned with the sufficiency of  the grounds.  We are concerned whether there are relevant  materials on  which  a  reasonable  belief  or conviction could  have been  entertained  by  the  detaining authority on  the grounds  mentioned in  section 3(1) of the said Act.  Whether other  ground should have been taken into consideration or  not is  not relevant  at the  stage of the passing of the detention order. This contention ,  therefore ,   cannot be accepted. If that is the position then in view of section  5A of  the Act  there was sufficient material to sustain this ground of detention.              In  the case  of State  of Gujarat v. Chamanlal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 24  

Manjibhai Soni  , (1) this Court maintained the order of the High Court  quashing the detention. This Court observed that detention under  section 3  of the  Act  was  only  for  the purpose of  preventing  smuggling  and  all  the  grounds  , whether there  are one or more ,  would be relatable Only to various activities of smuggling and no other separate ground which could  deal with matters other than smuggling could be conceived of  because the  Act of  smuggling covered several activities each  forming a  separate ground of detention and the Act  dealt with  no other act except smuggling. Whenever allegations of (1) [l981] 2 S.C.R. 500. 728 729 the  custody  of  the  Customs  Officers  ,    his  advocate addressed a  letter and  sent a  telegram to them protesting against his  detention and  illegal custody  beyond 24 hours and also  expressing  an  apprehension  that  he  was  being detained with a view to obtain confessional statements under duress. It  was admitted  that the  advocate’s  request  for permission to remain present at the time of interrogation of the detenu  was turned  down by  the Customs  Officers.  The advocate was  also told  that the  detenu would  be produced before a  Magistrate on  the day of request but that was not done. He  was produced on the following day and was remanded to judicial  custody permitting  further interrogation while in judicial  custody ,   the  detenu  refused  to  sign  the further statements  and squarely resiled. While the detenu’s application for  bail was  pending before  the Magistrate  , the respondent  passed the impugned order. In petition under Art. 226  of the  Constitution for  the issue  of a  writ of habeas corpus  ,   the appellant contended that the order of the detaining  authority was  liable to be set aside because full facts  of  the  case  were  not  intimated  before  the detention order  was passed  ,   and therefore  ,  there was complete non-application  of mind of the detaining authority to the  attendant vital  circumstances. It was held that the impugned order  was invalid  and illegal  because there  was complete  non-application  of  the  mind  of  the  detaining authority to  the most  material and  vital  facts.  In  the instant  case  before  us  ,    there  was  no  request  for consultation with  the advocate.  There is  no case  of non- production in  spite of  intimation by  the advocate  to the Customs  officers  before  a  Magistrate.  The  confessional statements of course ,  were retracted. But in this case the confessional statements was not the only fact upon which the detaining authority  had passed  an order.  In the  premises even if  the confessional statements which were retracted as such could  not be  taken into  consideration ,   there  are other facts  independent of  the confessional  statement  as mentioned hereinbefore  which can  reasonably  lead  to  the satisfaction that the authorities have come to.      The contention  on behalf of the detenus that there was delay in serving the grounds upon the detenus has been dealt with. There  is no  substance in  the contention  in view of what is stated hereinbefore .      So far  as the ground that the detenus were not allowed to be  represented properly  before the Advisory Board? from the facts 730 narrated in affidavit in opposition where it has been stated that services  of Dr.  S.C. Purohit  ,   Senior Scientist  , V.S.S C.  Thumba ,   Trivandrum  and Dr.  Mrs. Purohit  were available to  the detenu  to translate the statements of the detenu to  the Advisory  Board. The  detenu was  detained on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 24  

20th June ,  1984. As required under section 8(3) of the Act ,  the case of the detenu was referred to the Advisory Board in  Government   letter   dated   18th   July.   1984.   The representations submitted  by the detenu were also forwarded to the Advisory Board for its consideration. The services of the two  persons mentioned  here in  before were utilised by the Board  in understanding  the statement of the detenu and deciphreing the  representation in Gujarati submitted by the detenu ,   Venilal  Mehta to the State  Government which was also forwarded  to the Board. Therefore ,  it has  cannot be said that  detenus have not been given proper facility to be represented before  the Advisory  Board. The contention that the fact  that there  was retraction  of the  confession not having been taken into consideration had vitiated orders has been dealt  with. The  allegation or the submission that the detaining  authority  did  not  independently  consider  the representation of  the detenu  put mechanically followed the opinion of the Advisory Board cannot be sustained in view of the facts and circumstances of this case.      In this  case there was evidence before the authorities concerned that  60 gold  biscuits of  foreign origin without any explanation  of their  importation  were  found  in  the possession of  the father-that  is undisputed. Venilal could not give any explanation of their being in there possession. These were  smuggled. Secondly ,  there was evidence in view of the subsequent other facts independent of the confessions of the  father and the sons and the daughter that the father was in  contact with  persons who  were buying smuggled gold from him  and buying  at high prices. Their telephone number were found  and they  could be  identified from  the  papers seized during  the search  at  his  hotel  room  The  detenu Venilal made a mercy petition-      As  the  statement  of  objects  and  reasons  of  1975 Amending  Act  state  that  smuggling  of  foreign  exchange racketeering and  related activities have a deterious effect on the national economy and thereby a serious adverse effect on the security of State. The society must be protected from that social menace by immobilizing 731 the persons  by detention  of the  persons engaged  in those operations and  to disrupt  the  machinery  established  for furthering  smuggling  and  foreign  exchange  manipulations (Statement of  objects and  reasons of 1975 Act). Preventive detention unlike  punitive detention  which is to punish for the wrong  done ,   is  to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised  not   to  undermine   the  fundamental   freedoms guaranteed to our people ,  the procedural safeguards are to ensure that yet these must be looked at from a pragmatic and commonsense point  of view.  The exercise  of the  power  of preventive detention  must be strictly within the safeguards provided. We  are  governed  by  the  Constitution  and  our Constitution embodies  a particular philosophy of Government and  a   way  of   life  and   that   necessarily   requires understanding between  those who  exercise  powers  and  the people over  whom or  in  respect  of  whom  such  power  is exercised. The purpose of exercise of all such powers by the Government must  be to promote common well-being and must be to sub-serve  the common good. It is necessary to be protect therefore the  individual rights  in so  far as  practicable which arc  not inconsistent with the security and well-being of the society. Grant of power imposes limitation on the Use of the power. There are various procedural safeguards and we must construe  those in  proper  light  and  from  pragmatic commonsense point  of view. We must remember that observance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 24  

of written  law about  the  procedural  safeguards  for  the protection of  the individual  is normally  the high duty of public official  but in  all circumstances  not the highest. The law  of self  preservation and protection of the country and national  security may  claim in  certain  circumstances higher priority.      As has  bean said  by Thomas  Jefferson  "To  lose  our country by a scrupulous adherence to written law ,  would be to lose  itself ,   with life ,  liberty ,  property and all those who  are enjoying  them  with  us  ,    thus  absurdly sacrificing the  end  to  the  means"  (Thomas  Jefferson  , Writings (Washington  ed) ,  V. 542-545 and The Constitution Between friends  by Loutis  Fisher  47).  By  the  aforesaid approach both  justice and power can by brought together and whatever is  just  may  be  powerful  and  whatever  may  by powerful may be just 732          In the background of the facts and circumstances of this case  the procedural safeguards have been complied with as far  as practicable.  There are  no merits in the fancied grievances of  the detenus.  In that  view of  the matter  , these petitions fail and are accordingly dismissed.  A.P.J.                                 Petitions dismissed. 733