http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: MST. L.M.S. UMMU SALEEMA

       Vs.

RESPONDENT: B.B. GUJARAL & ANR.

DATE OF JUDGMENT04/05/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1191            1981 SCR  (3) 647  1981 SCC  (3) 317        1981 SCALE  (1)843  CITATOR INFO :  R          1981 SC2166  (15)  RF         1982 SC1500  (7)  R          1990 SC 176  (38)  RF         1991 SC2261  (7)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act 1974, S.3(1).      Detention under-Delay  in disposal  of  representation- Whether vitiates detention.      Detaining  Authority-Failure  to  consider  prosecution under the  ordinary  criminal  law-Whether  voids  order  of detention.      Constitution  of   India  1950,   Art.  22(5)-Detaining authority-Failure of-To  furnish copy  of document  to which reference is  made in  grounds of detention-Whether fatal to order of detention.      Indian  Evidence   Act  1872,  Ss.  16  and  114-Detenu alleging despatch  of  communication  under  certificate  of posting-Detaining  authority   contending  non-receipt-Court whether compelled  to draw  a presumption that communication reached the addressee.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

    On 31.10.80.  the first  respondent made  an  order  of preventive detention  against the  detenu under Section 3(1) of the  Conservation of  Foreign Exchange  and Prevention of smuggling Activities  Act 1974.  The order  of detention and the grounds  of detention  were served  on  2.2.81,  as  the detenu was  avoiding service  and arrest.  The detenu made a representation  on   4.2.81,  which   was  rejected  by  the detaining authority, the first respondent on 19.2.1981. 648      In the  writ petition to this Court it was contended on behalf of  detenu :  (1) that  as  material  documents  viz. record of  investigation revealing the trunk telephone calls and the record of investigation relating to the petrol which was put  into the  jeep owned  by the brother of the detenu, upon which  reliance was  placed in  the order  of detention were not  supplied to  the detenu  along with the grounds of detention, the  detenu was  thereby prevented from making an effective representation  and denied  the Fundamental  Right guaranteed under  Article 22(5). (2) The detaining authority was under obligation to supply alongwith the grounds, copies of all  documents to which reference was made in the grounds irrespective of  whether such documents were not relied upon in making  the order  of detention. (3). Although the detenu had retracted  from his  alleged  original  statement  dated 7.8.80 long before the order of detention was made, the fact of such  retraction was  not  considered  by  the  detaining authority (4).  There was considerable delay in the disposal of the  representation by  the detaining  authority and this was sufficient  to vitiate the detention, (5). The detaining authority did not apply his mind to the representation which made an  express  reference  to  the  retraction,  (6).  The detaining authority  had failed  to  consider  the  question whether a  prosecution under the ordinary criminal law would not suffice  to prevent  the detenu  from indulging  in  the alleged activities  and  whether  preventive  detention  was necessary in the circumstances of the case.      Dismissing the petition the Court, ^      HELD :  1. (i)  A perusal  of the  grounds of detention reveal that neither the record of Trunk Calls nor the record of investigation  relating to  the petrol  put into the jeep were in any manner relied upon by the detaining authority in making the order of detention. [652 C]      (ii) The  reference to  the record  of trunk  calls was made for  the purpose  of verifying the trunk call which was received in  the premises  when the  customs  officers  were there. The reference to the record of investigation relating to the  petrol put into the jeep was to refute the statement of the  detenu’s brother  that the  jeep was not used during the previous  year and was in the garage. [651 G, 651 E, 653 D]      2. (i)  The Constitutional requirement of Article 22(5) is  insistence   that  basic  facts  and  particulars  which influenced  the  detaining  authority  in  arriving  at  the requisite satisfaction must be communicated to the detenu so that the  detenu  may  have  an  opportunity  of  making  an effective representation  against the  order  of  detention. Every failure  to  furnish  copy  of  a  document  to  which reference is  made in  the grounds  of detention  is not  an infringement  of   Art.  22  (5),  fatal  to  the  order  of detention. It  is only  a failure  to furnish copies of such documents as  were relied  upon by  the detaining  authority making it  difficult for  the detenu  to make  an  effective representation that  amounts to violation of the fundamental right guaranteed by Article 22(5). [652 H-653 B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

    2.  (ii)   It  is  unnecessary  to  furnish  copies  of documents to  which casual  or passing reference may be made in the course of narration of facts and which are not relied upon by  the detaining  authority in  making  the  order  of detention. [653C] 649      Smt. Shalini Soni v. Union of India and Ors.AIR 1981 SC 431, Icchu  Devi Choraria  v. Union  of India,  AIR 1980  SC 1983, Khudiram Das v. The State of West Bengal, [1975] 2 SCR 832 @ 848, 849, referred to.      In the instant case the two documents cannot be said to be  documents  which  were  relied  upon  by  the  detaining authority in  making the  order of detention. Therefore, the detenu could  not properly  complain that  he was  prevented from  making  an  effective  representation.  There  was  no violation  of  the  right  guaranteed  by  Art.  22  of  the Constitution. [653 D]      3(i). If the detenu was serious in his request that his retraction should  be considered  by the detaining authority while considering his representation one would expect him to send a  copy of  the  letter  of  retraction  alongwith  his representation instead  of a  copy  of  the  certificate  of posting. [654 A]      (ii)  The  Certificate  of  posting  might  lead  to  a presumption  that   a  letter  addressed  to  the  Assistant Collector of  Customs was  posted on  14.8.1980 and  in  due course  reached   the  addressee.   But,  that   is  only  a permissible and not an inevitable presumption. [654 E]      (iii)  Neither  Section  16  nor  section  114  of  the Evidence Act  compels the Court to draw a presumption that a letter proved  to be  posted has  reached the addressee. The presumption may  or may  not be  drawn.  On  the  facts  and circumstances of  a case,  the Court  may refuse to draw the presumption. [654 F]      In the  instant case,  the alleged letter of retraction was only  a myth. No such letter of retraction was posted as claimed by the detenu. [654 E, G]      4. The  representation made  by the  detenu has  to  be considered by the detaining authority with utmost expedition but the  time imperative can never be absolute or obsessive. The occasional  observations made  by this  Court that  each day’s delay  in the  dealing with the representation must be adequately explained  are meant  to emphasise the expedition with which  the representation  must be  considered and  not that it  is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of  life. In  law, as in life, there are no invariable absolutes. Neither  life nor  law can be reduced to mere but despotic formulae. [655 B-C]      Pritam Nath  Hoon v.  Union of  India and Ors. A. I. R. 1981 SC 92, Shanker Raju Shetty v. Union af India, W. P. 640 of 1980  decided on  26.6.80, Francis Coralie Mullin v. W.C. Khambra, [1980] 2 S.C.R. 1005, referred to.      In the  instant case  the representation was despatched on 5.2.1981  and was received in the office of the detaining authority on  13.2.1981. It  was put up before the detaining authority on  19.2.81 and  disposed of  that very  day.  The detaining authority  was not  available from 13th to 16th as he had  gone abroad.  He returned on 16th and considered the matter on  19th. There  has not  been any  unaccountable  or unreasonable delay  in the disposal of the representation by the detaining authority. [655 D-G] 650      5. The  note file  shows that  the detaining  authority also considered  the question  whether the alleged letter of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

retraction was posted. [656 B]      6. A  reading of  the entire counter-affidavit makes it clear  that  in  the  opinion  of  the  detaining  authority prosecution or  no prosecution,  the only  effective way  of preventing the detenu from engaging himself in objectionable activities was to detain him. [656 G-H]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 1745 of 1981.       (Under Article 32 of the Constitution of India.)      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the Petitioner.      M.M. Abdul  Khader  and  Miss  A.  Subhashini  for  the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. In  this application under Art. 32 of the  Constitution, we  are concerned with the question of the legality  of the detention of Jahaubar Moulana under the provisions of  the  Conservation  of  Foreign  Exchange  and Prevention of  Smuggling Activities  Act, 1974. On August 6, 1980, a  car  in  which  the  detenu  Jahaubar  Moulana  was travelling  was   intercepted  by   Customs  Officers   near Perumber-Kandigal diversion  road on  Tiruchirappalli-Madras G.S.T. Road.  On a  search of  the car, 768 Wrist watches of foreign origin  and 1560  semi-precious  stones  were  found ingeniously concealed  in the  panelling of  the front doors and the  cavity between  the petrol tank and the steel plate covering the petrol tank. The goods which were valued at Rs. 2,95,188 were  seized by  the Customs Officers alongwith the car.  On   7.8.80  the   detenu,   Jahaubar   Moulana,   was interrogated and a statement was recorded which incriminated himself and  others. He  was taken  before the Magistrate on 8.8.80 and  was remanded  to custody. He was granted interim bail on  12.8.80 and  the  bail  was  finally  confirmed  on 16.8.80. On  14.8.80  the  detenu  claims  to  have  sent  a communication  addressed   to  the  Assistant  Collector  of Customs, Cuddalore, in which, according to him, he retracted from the  statement made  by him  on 7.8.80 and claimed that the  earlier   statement  had  been  obtained  from  him  by torturing him.  According to  the case  of the  detenu  this communication was  sent by him under Certificate of posting. Subsequently, on  31.10.80,  Shri  B.B.  Gujral,  Additional Secretary to the Govt. of India, Ministry of Finance made an order 651 of preventive  detention against the detenu Jahaubar Moulana under S.  3 (1)  of the Conservation of Foreign Exchange and Prevention  of   Smuggling  Activities  Act.  The  order  of detention and  the  grounds  of  detention  were  served  on Jahaubar Moulana on 2.2.81. According to the respondent they could not  be served  earlier as  Jahaubar Moulana  was  not available and  was avoiding  service and  arrest. The detenu made a  representation on  4.2.81.  The  representation  was rejected by  the detaining  authority, Shri  B.B. Gujral  on 19.2.81.      Shri Ram  Jethmalani, learned  counsel for  the  detenu urged that material documents upon which reliance was placed in the  order of  detention were  not supplied to the detenu along with  the grounds  of detention  and  the  detenu  was thereby prevented  from making  an effective representation. He was  thus denied  the Fundamental  Right afforded  to him under Art.  22 (5)  of the  Constitution. The  two documents which according  to Mr.  Jethmalani were not supplied to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

detenu were  (1) record of investigation revealing the trunk telephone calls  booked from Telephone No. 315 at Kila Karai to telephone  No.  27115  at  Madras  on  15.7.80,  18.7.80, 24.7.80, 26.7.80,  27.7.80, 29.7.80, 6.8.80, and 7.8.80; and (2) record of investigation relating to the petrol which was put into Jeep No. TMC 1850 owned by Shri Shamsuddin, brother of the detenu.      In paragraph  4 of  the  grounds  of  detention  it  is mentioned when  premises No.  66,  Malayappan  St.  Mannady, Madras was  being searched  on 7.8.80,  a telephone call was received at  telephone No.  27115 which was in the premises, from telephone  No.  315  Kila  Karai  enquiring  about  the arrival of  the detenu.  The information  about the call was verified with  reference to the record of trunk calls and it was found  that on  the various  dated mentioned trunk calls had been  booked from  telephone No.  315 at  Kila Karai  to telephone No.  27115 at  Madras. The reference to the record of trunk  calls was  made for  the purpose  of verifying the trunk call  which was  received on  7.8.80 at  telephone No. 27115 in  the premises  No. 66  Malayappan Street  when  the Customs Officers  were there.  After carefully  perusing the grounds of  detention we find it impossible to hold that the record of  trunk calls  was one  of the documents upon which the detaining  authority had  relied in  making the order of detention.      The reference in the grounds of detention to the petrol put into  Jeep No.  TMC  1850  was  made  in  the  following circumstances. 652 Paragraph  5  of  the  grounds  of  detention  refers  to  a statement made by the detenu’s brother Shamsuddin on 20.9.80 in which  he stated  that his Jeep No. TMC 1850 has not been used during  the previous  years and that it was kept locked up  in   a  garage.   Paragraph  5  then  recites  that  the investigation showed  that during  the period between 1.6.80 and 5.8.80,  on as  many as 36 occasions petrol had been put into the  jeep at  various petrol  pumps. Here  again we are unable to  say, on  a perusal  of the  grounds of detention, that the  record of investigation relating to the petrol put into the jeep was in any manner relied upon by the detaining authority in making the order of detention.      Shri Jethmalani’s  submission was  that  the  detaining authority was  under an  obligation to supply along with the grounds, copies of all documents to which reference was made in the  grounds irrespective  of whether such documents were or were not relied upon in making the order of detention. He submitted  that  the  very  fact  that  the  documents  were mentioned in the grounds established that the documents were relied upon  in making the order of detention. We are unable to agree  with the  submission of  Shri Jethmalani. True, it was observed in some cases that copies of documents to which reference was  made in  the grounds  must be supplied to the detenu as  part of  the grounds  (vide Smt.  Shalini Soni v. Union of India & Ors. But these observations must be read in the context in which they were made. In Shalini Soni’s case, for example,  the observations  were made  immediately after stating that  "grounds" in  Art. 22  (5) did  not mean  mere factual inferences but meant factual inferences plus factual material which led to such factual inferences. In Icchu Devi Choraria v. Union of India the Court observed :           "It  is  difficult  to  see  how  the  detenu  can      possibly make  an effective representation unless he is      also furnished  copies of the documents, statements and      other  materials   relied  upon   in  the   grounds  of      detention."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

The stress was upon the words "relied upon". In Khudiram Das v. The  State of  West Bengal the Constitutional requirement of Art. 22 (5) was stated as insistence that basic facts and particulars which  influenced  the  detaining  authority  in arriving at the requisite 653 satisfaction leading to the making of the order of detention must be  communicated to  the detenu  so that the detenu may have an  opportunity of  making an  effective representation against the order of detention. It is, therefore, clear that every failure  to  furnish  copy  of  a  document  to  which reference is  made in  the grounds  of detention  is not  an infringement  of   Art,  22  (5),  fatal  to  the  order  of detention. It  is only  failure to  furnish copies  of  such documents as  were relied  upon by  the detaining authority, making it  difficult for  the detenu  to make  an  effective representation,  that   amounts  to   a  violation   of  the Fundamental Rights guaranteed by Art. 22 (5). In our view it is unnecessary  to furnish  copies  of  documents  to  which casual or  passing reference  may be  made in  the course of narration of  facts and  which are  not relied  upon by  the detaining authority in making the order of detention. In the case before  us we  are satisfied  that such  were  the  two documents, copies of which were not furnished to the detenu. We are  satisfied that  the documents  cannot be  said to be documents which  were relied upon by the detaining authority in making  the order  of detention.  Therefore,  the  detenu could not  properly complain  that  he  was  prevented  from making an  effective representation.  There was no violation of the right guaranteed by Art. 22 of the Constitution.      The next  submission of  the learned  counsel  for  the detenu was  that although  the detenu had retracted from his alleged original  statement dated  7.8.80  long  before  the order of detention was made, the fact of such retraction was not considered  by the detaining authority before making the order of  detention. The  plain and  simple  answer  of  the respondents was that there was no such retraction as claimed by the  detenu. According  to the  detenu as  soon as he was released on  bail, on  14.8.80, he addressed a letter to the Assistant Collector  of Customs,  Cuddalore, retracting from his former  statement. This  communication  was  sent  under Certificate of  Posting,  a  photostat  copy  of  which  was produced before  us. In  support of  the claim  that he  had retracted from his former statement and had communicated the retraction under  Certificate of Posting, the detenu invited our attention  to the  reply sent  by him  to the show cause notice issued by Collector of Customs under the Customs Act, and to  the representation  made by  him  to  the  detaining authority, in  both of  which he  made a  reference  to  the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority alongwith his representation  a photostat  copy of  the Certificate of Posting but  carefully refrained  from sending a copy of the letter of retraction 654 itself. This  is indeed  extraordinary. If  the  detenu  was serious  in  his  request  that  his  retraction  should  be considered by  the detaining authority while considering his representation one  would expect  him to  send a copy of the letter of retraction alongwith his representation instead of a copy  of the  certificate of  posting. One  cannot help  a suspicion that  evidence was being brought into existence to support the  assertion that  a letter of retraction was sent on 14.8.80.  The  detaining  authority  has  stated  in  the counter that  no such  letter dated  14.8.80 was received by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

the Assistant Collector of Customs. The entire file has been produced before us and on a perusal of the file we find that a thorough  search was  made, not once but several times, to find out  if such a letter was received in the office of the Assistant Collector of Customs, Cuddalore but no such letter could  be   traced.  The  learned  counsel  urged  that  the detaining authority  was not  competent to  state  that  the Assistant Collector  of Customs  had  not  received  such  a letter and  that it  was for the Asstt. Collector to say so. There is  no force  in this  submission. The  file  produced before us  shows that  the Asstt.  Collector of  Customs had informed  the  detaining  authority  and  the  Collector  of Customs that  he had  made a  thorough search for the letter said to have been written on 14.8.80 and that no such letter had been  received in  his office. We are satisfied that the alleged  letter   of  retraction   was  only   a  myth.  The certificate of  posting might  lead to  a presumption that a letter addressed  to the  Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that  is only  a  permissible  and  not  an  inevitable presumption. Neither  Section 16  nor  Section  114  of  the Evidence Act  compels the  Court to  draw a presumption. The presumption may  or may  not be  drawn.  On  the  facts  and circumstances of  a case,  the Court  may refuse to draw the presumption. On  the other hand the presumption may be drawn initially but  on a  consideration of the evidence the Court may hold  the presumption  rebutted and  may arrive  at  the conclusion that  no letter  was received by the addressee or that no  letter was  ever despatched  as claimed. After all, there have been cases in the past, though rare, where postal certificates and  even postal  seals have been manufactured. In the  circumstances of  the present case, circumstances to which we  have already  referred, we  are satisfied  that no such letter  of retraction  was posted  as  claimed  by  the detenu.      Another submission  of the  learned  counsel  was  that there  was   considerable  delay  in  the  disposal  of  the representation by  the  detaining  authority  and  this  was sufficient to vitiate the detention. 655 The learned  counsel submitted  that the detaining authority was under  an obligation  to adequately  explain each  day’s delay and  our attention  was invited  to the  decisions  in Pritam Nath  Hoon v.  Union of India & Others and in Shanker Raju Shetty  v. Union  of India.  We do  not doubt  that the representation made  by the  detenu has  to be considered by the detaining  authority with  the utmost  expedition but as observed by  one of  us in  Francis Coralie  Mullin v.  W.C. Khambra. "The  time imperative  can  never  be  absolute  or obsessive". The  occasional observations  made by this Court that each  day’s delay  in dealing  with the  representation must be  adequately explained  are meant  to  emphasise  the expedition with  which the representation must be considered and not  that it  is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the  facts of  life. In  law, as  in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae. Considered in that light, can it be said  that there was an unreasonable delay in the present case? The  representation was despatched on 5.2.1981 and was received  in  the  office  of  the  detaining  authority  on 13.2.1981. Apparently  it was  in postal transit from 5th to 13th. It  was put  up  before  the  detaining  authority  on 19.2.1981 and  disposed of  that very  day. From the records produced before  us we  notice that the detaining authority,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

Shri B.B.  Gujral, was not available from 13th to 16th as he had gone  abroad. He  returned on  16th and  considered  the matter on  19th. The  learned counsel  for the  detenu urged that the  absence of  the  detaining  authority  from  India cannot be  allowed to  violate the  fundamental right of the detenu to have his representation considered with the utmost expedition.  We   agree  that   in  such  cases  appropriate arrangements must  be  made  for  considering  the  detenu’s representation. Apparently,  it was not thought necessary in the present  case as Shri Gujral was returning on 16th, that is, within  a few  days. After the 16th the delay, was for a period of  three days  only. It  can hardly  be described as delay though  one wishes  there was  no room  even for  that little complaint. We are of the view that there has not been any unaccountable  or unreasonable  delay in the disposal of the representation by the detaining authority.      The learned  counsel for  the detenu  further submitted that the  detaining authority  did not apply his mind to the representation. 656 He argued  that the representation made express reference to the retraction  and yet  the  detaining  authority  did  not enquire or  send for the retraction which admittedly was not available with  him. We have already found that no letter of retraction was sent to the Assistant Collector of Customs. A perusal of  the note file shows that the detaining authority also considered  the question  whether the alleged letter of retraction was posted. In the circumstances we are unable to hold that there was non-application of mind by the detaining authority.      Shri  Jethmalani  then  submitted  that  the  detaining authority had  failed to  consider the  question  whether  a prosecution  under  the  ordinary  criminal  law  would  not suffice to  prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances  of the case. Reliance was placed upon the observations made  by  this  Court  in  Kanchantal  Maneklal Chokshi v.  The State  of Gujurat  &  Ors.  In  the  counter affidavit  filed  by  the  detaining  authority,  Shri  B.B. Gujaral, it has been stated:           "Having regard  to the nature of the activities in      which the  detenu was  engaged and after having applied      my  mind   very  carefully   to  all   the  facts   and      circumstances of  the  case  and  the  material  placed      before me,  I arrived  at the  subjective  satisfaction      that it  was necessary  to detain Shri Jahaubar Moulana      for  preventing   him  from  engaging  in  transporting      smuggled goods.  The adjudication of the case under the      Customs Act  and prosecution of the detenu are entirely      on a  different footing. I say that the detention order      was passed  by me  with  due  care  and  after  careful      consideration of all the materials placed before me". The deponent  may not have stated in express words that when he made  the order  of  detention  he  also  considered  the question whether  a prosecution  under the ordinary criminal law would not meet the situation and would not be sufficient to prevent  Jahaubar Moulana  from engaging  himself in  the objectionable  activities.  But  a  reading  of  the  entire counter affidavit  makes it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way  of preventing  Jahaubar Moulana from engaging himself in objectionable activities was to detain him. 657      Some  other  grounds  were  mentioned  by  the  learned counsel for  the detenu but they were not pressed before us.

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

In the result the Writ Petition is dismissed. N.V.K.                                   Petition dismissed. 658