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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: SUNIL FULCHAND SHAH & ANOTHER

DATE OF JUDGMENT08/02/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J)

CITATION:  1988 AIR  723            1988 SCR  (2) 903  1988 SCC  (1) 600        JT 1988 (1)   274  1988 SCALE  (1)257  CITATOR INFO :  R          1990 SC 136  (14)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act 1974:  Section 3-Detention  order- Mere error  in description  of  a  document  in  grounds  of detention-Whether   vitiates   detention   order-Filing   of affidavit by  detaining authority-Not an inflexible rule-Not necessary to mention in grounds of detention the reaction of the detaining authority to every piece of evidence.

HEADNOTE: %      The second  respondent in the appeal was detained under subsection (1)  of section  3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.      The grounds  of detention-Annexure  ’B’ served  on  the detenu stated  that information  was received  by the custom staff that  a notorious  smuggler and his gang was likely to land packages  of contraband  goods on  the Saurashtra Coast and that  the modus operandi of the smugglers’ gang would be to remove  the goods  to trucks,  cover them  with cargo  of vegetables and  grain, and then to drive away. Vigilance was stepped up by the authorities. A Truck, an Ambassador Car in the service  of  the  respondent-detenu,  and  a  jeep  were stopped by  the  Officers  and  several  persons  travelling therein  were   detained  and   interrogated.  Incriminating documents were  recovered  indicating  involvment  of  other vehicles. Goods of foreign origin valued at over Rs.68 lakhs were also  recovered. The  arrested persons gave vital clues about the  clandestine business  of smuggling that was being carried on  and named  the 2nd  respondent-detenu  as  being directly involved in the business.      The co-conspirators  made an  application for  bail  on 2.10.1984 and on the following day i.e. 3.10.1984 they filed an  application   before  the   Chief  Judicial   Magistrate retracting some of their earlier statements.      Though the  detention order  was passed  on October 20, 1984, it could not be served on the detenu earlier than July 4, 1986  as he  was absconding.  On  his  arrest  the  first respondent-his nephew, challenged the detention order in the

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High Court on several grounds, but the High 904 Court allowed  the writ  petition and  quashed the  order of detention only on one ground viz. non-application of mind by the detaining  authority to a vital document i.e. the second application  dated   3.10.1984  whereby  the  other  accused persons retracted  their earlier  statements, and  held that this  had   vitiated  the  subjective  satisfaction  of  the detaining authority.      In the  appeal to this Court it was contended on behalf of the  State-appellant that  the second  application  dated 3.10.1984 was also placed before the detaining authority and that he  had applied  his mind  thereto.  The  document  was mentioned in  the grounds-Annexure ’B’, served on the detenu although  it  was  not  actually  described  as  a  petition containing the  retraction. The  original file  dealing with the detenu’s case was also produced for the Court’s perusal.      The appeal  was contested  on behalf of the respondents by stating  that the  plea of  the  State  that  the  second application dated  3.10.1984  had  been  considered  by  the detaining authority  should be rejected in the absence of an affidavit by  the  detaining  authority,  and  that  it  was necessary to  have mentioned  in the  grounds-Annexure  ’B’, served on the detenu that the detaining authority was of the view  "that   not  much  credence  could  be  given  to  the statements made in the petition dated 3.10.1984".      Allowing the Appeal, ^      HELD: 1.  It is true that in a given case the detaining authority should  personally affirm  on oath the stand taken on its behalf, but this cannot be suggested as an inflexible rule applicable  to all  detention cases irrespective of the circumstances. [908D-E]      In the  instant case, a further affidavit by the Deputy Secretary, Home Department of the State of Gujarat was filed stating that  the Home Minister who was authorised under the Rules of Business to pass orders on behalf of the Government in detention matters, had ceased to be a Minister before the filing of  the affidavit  in the  High Court,  and  he  was, therefore not  available. The  then Deputy  Secretary,  Home Department who  was fully  conversant with  the case  had to file the affidavit. [908E-F]      2. The  original file  dealing with  the detenu’s  case produced in  Court shows  that the  Home Minister,  State of Gujarat, while  passing  the  order  for  detention  made  a detailed note running in several para- 905 graphs and  in paragraph  2 he  pointedly mentioned both the bail application  dated 2.10.1984  and  the  petition  dated 3.10.1984. The  notes also show that the detaining authority correctly appreciated  the nature  and purport  of  the  3rd October document  but was of the view that not much credence could in the circumstances be given to it. [908B-C]      3. So  far as  the inference  drawn  by  the  detaining authority  from   the  materials  on  the  records  and  his subjective satisfaction  were concerned,  they are expressly stated in  the grounds  and there cannot be any grievance on that score. [909B-C]      4. It  is not  necessary to  mention in  the ground  of detention  the   reaction  of  the  detaining  authority  in relation to every piece of evidence separately. [909D-E]      In the  instant case,  the recital in Annexure ’B’ that the   detaining   authority   formed   his   opinion   after consideration of  the document  dated  3.10.1984  by  itself clearly implied  that he  was not impressed by the statement

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therein. [909E]      5. Several  other questions  were raised  in  the  writ petition which  were not  considered by  the High Court, and since the  order of  the High  Court by which it allowed the writ petition  has been  set aside,  it becomes necessary to decide the  other questions.  The  matter  is  remanded  for further hearing and disposal to the High Court. [909G]      P.C. Mehta  v. Commissioner  and  Secretary,  Govt.  of Kerala and others, [1985] Supp SCC 144, referred to.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 80 of 1988.      From the  Judgment and  Order dated  20.11.1986 of  the Gujarat High Court in Spl. Crl. A. No. 886 of 1986.      T.U. Mehta and M.N. Shroff for the Appellant.      V.A. Bobde,  Mrs. H.  Wahi and  Mrs. Kamini Jaiswal for the Respondents.      The Judgment of the Court was delivered by      SHARMA, J. The order of detention of the respondent No. 2, 906 Mahendra V.  Shah, passed  under the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities Act, 1974, was challenged  by his  nephew, respondent No. 1, before the Gujarat High Court under Article 226 of the Constitution. By the impugned  judgment the  detention order was quashed. The State of  Gujarat has  impugned the High Court’s decision by the present Special Appeal Application.      2. Special leave is granted.      3. The  detention order  was  passed  on  the  20th  of October, 1984, but could not be served on the detenu earlier than 4.7.1986 as he was absconding. The grounds of detention served  on   him  as  mentioned  in  Annexure-B  state  that information was  received by  the Customs staff of Ahmedabad on 26.9.1984  that a  notorious smuggler,  Juwansinh Jadeja, had shifted  his smuggling activites to the coast of Chorwad in Saurashtra,  and was working on behalf of two citizens of Pakistan. Information  about Jadeja’s  main  associates  was also received.  The authorities  were informed that the gang was likely  to land  about 180  packages of contraband goods within a  couple  of  days  and  vigilance  activities  were therefore stepped  up. The  officers further learnt that the modus operandi of the smugglers’ gang would be to remove the goods to  trucks and  to cover them with cargo of vegetables and grains and then to drive away. An Ambassador car bearing registered no.  MRH 6595 which was earlier in the service of the respondent  detenu a  resident of  Bombay was spotted in the late  night of  28.9.1984 and they suspected it to be on the road  in that  connection. They  proceeded in  the  same direction and  found a truck loaded with bags of vegetables. The truck  was intercepted  but the  driver  ran  away.  The Ambassador car  was also  passing by, but on being signalled to stop,  it took  a sharp  turn and  got away. The officers unsuccessfully chased it for some time. The suspicion of the officers was  thus confirmed and they searched the truck and discovered the  contraband goods. Two other vehicles, a Jeep and another  car  also  arrived  and  were  stopped  by  the officers and  several persons  travelling therein  including Jadeja were  taken to  the Excise  Office for interrogation. Incriminating  documents   were   recovered,   inter   alia, indicating that several other trucks were also involved. All available Customs  and  police  officers  thereafter  became

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active and two other trucks were seized. They also found the Ambassador car  MRH 6595  abandoned. The  goods found in the first truck  were all  of foreign  origin and were valued at over Rs.68  lakhs. Similar  contraband goods were discovered in the  other trucks  also. Later  a fourth  truck was  also intercepted. The arrested persons 907 gave vital clues about the clandestine business of smuggling and named  respondent Mahendra  V. Shah  as  being  directly involved in  the business.  It was  inter alia  stated  that Mahendra V.  Shah had gone to the coast where the goods were received. The  grounds have mentioned the various activities of the  detenu including  the fact that he was travelling in the Ambassador car MRH 6595. We do not consider it necessary to mention here all the details of his activities.      4. As  stated earlier,  although the order of detention was made  in October  1984, it  could not  be served  on the detenu before  July 1986 as he was absconding. On his arrest the writ  application was filed by his nephew the respondent no. 1.  The other  persons involved  in the affair were also detained. These co-conspirators made an application for bail on 2.10.1984  and on  the next  day, that  is, on 3.10.1984, they  filed   an  application   before  the  Chief  Judicial Magistrate,  Junagadh   retracting  some  of  their  earlier statements.      5. One  of the points urged on behalf of the detenu was that the  retraction by  the aforesaid  other  persons  (co- conspirators) was  not placed before the detaining authority and was,  therefore, not  considered by  him. The High Court held that this point by itself vitiated the detention order. The other grounds urged were not considered on merits.      6. It  has been  contended on  behalf of the State that the second  application dated  3.10.1984 whereby  the  other accused persons  retracted their earlier statements was also placed before the detaining authority and he had applied his mind thereto.  It was pointed out that the said document was mentioned in  the grounds  Annexure B,  served on the detenu although it  was not  accurately  described  as  a  petition containing the  retraction. The  mis-description was  in the following words:                "While arriving at the above satisfaction the           Detaining Authority  has taken  into consideration           the  bail   applications   dated   2.10.1984   and           3.10.1984  filed   jointly  by   Jayantilal  Damji           Thakker and  nine others before the Chief Judicial           Magistrate, Junagadh......" In paragraph  6 of  the State’s  counter affidavit this fact was pointedly  mentioned and  it was stated that the mistake in the  description  was  of  drafting,  and  the  detaining authority had considered the same while passing the order of their detention and that there was no substance in 908 the point taken on behalf of the detenu.      7. The  stand of  the State  that  the  petition  dated 3.10.1984 was  considered by the detaining authority appears to be  right. The  original file  dealing with  the detenu’s case was  produced in  Court for  our perusal,  and we found that the  Home Minister, State of Gujarat, while passing the order for  detention made a detailed note running in several paragraphs and  in paragraph  2 he  pointedly mentioned both the bail  application dated 2.10.1984 and the petition dated 3.10.1984. The notes also show that he (detaining authority) correctly appreciated  the nature  and purport  of  the  3rd October document  but was of the view that not much credence could be  in the  circumstances given to it. The first point

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urged on  behalf  of  the  respondent  must,  therefore,  be rejected. The  error in  the description  of the document in the grounds cannot in the situation be said to have vitiated the order.      8. Mr.  Bobde, the  learned counsel for the respondent, contended that  the plea  of the State should be rejected in absence of an affidavit by the detaining authority. Although it is  not an  essential requirement  of  law,  the  learned counsel proceeded,  but the  Court in  every detention  case must insist  on such  an affidavit  to be  filed. It is true that in  a case  where a point as mentioned above arises the detaining authority  should personally  affirm on  oath  the stand taken  on his behalf, but it cannot be suggested as an inflexible  rule   applicable   to   all   detention   cases irrespective of  the circumstances.  In the  present case  a further affidavit  by Sri  Pavitra  Narayan  Roy  Chaudhary, Deputy Secretary,  Home Department (Special) of the State of Gujarat was filed stating that the Home Minister Sri Prabodh Raval who  was authorised under the Rules of Business framed under Article  166 of  the Constitution  to pass  orders  on behalf of  the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court, and  he  was,  therefore,  not  available.  Sri  M.T. Parmar, the then Deputy Secretary, Home Department was fully conversant with  the case  and had  filed his affidavit. The original file was produced before us to dispel any suspicion about the detaining authority having considered the document dated 3.10.1984  and having  felt satisfied  that it  was  a proper  case  for  detention  of  the  respondent.  In  this background we do not attach much importance to the fact that the affidavit  was not  filed  by  the  detaining  authority personally.      9. The  next point  urged by  Mr. Bobde was that it was necessary to  have mentioned  in the  grounds  (Annexure  B) served on  the detenu  the fact that the detaining authority was of the view that "not much 909 credence could  be given  to the" statements in the petition dated 3.10.1984.  The state  of the  mind of  the  detaining authority while  holding that  much credence  could  not  be given to  the document  should be  treated to  be  a  ground essential to be served on the detenu. Reliance was placed on the  observations   in  P.C.   Mehta  v.   Commissioner  and Secretary, Government  of Kerala  and others, [1985] (Supp.) SCC  144.  The  contention  is  that  factual  inference  is included in the expression "grounds" and has to be expressly and specifically  stated. We  are afraid,  the assumption on which the  argument is founded is not correct. So far as the inference  drawn   by  the   detaining  authority  from  the materials on  the records and his subjective satisfaction in this regard  are concerned, they are expressly stated in the grounds and there cannot be any grievance on that score. The objection of  the respondent,  properly analysed,  comes  to this, that  the reason  why the  detaining authority  is not impressed by  a particular piece of evidence or on the other hand the reason why he prefers to rely on any other evidence should be  detailed in  the grounds. Mr. Bobde urged that if the respondent  had known  that the  detaining authority did not attach  much credence  to the statements in the petition dated 3.10.1984  he would have attempted to impress upon the relevant authorities to take a contrary view. We do not find any merit  in this  contention  and  hold  that  it  is  not necessary to  mention in  the grounds  the reaction  of  the detaining authority  in relation  to every piece of evidence separately. Besides,  the recital  in Annexure  B  that  the

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detaining authority  formed his  opinion after consideration of the  aforesaid document by itself clearly implied that he was not  impressed by  the  statement  therein.  The  detenu cannot, therefore, be heard to say that he was prejudiced in any manner.      10. As mentioned above, the points pressed on behalf of the respondents  before us have been rejected. Mr. Bobde has contended that  several other  questions also  arise in this case which  have not  been dealt  with by the High Court. He appears to  be right.  The  impugned  judgment  states  that several other  questions were  also raised  which  were  not necessary to  be considered  as  the  writ  application  was succeeding on  the first  point. Now  in view of our finding mentioned above,  it becomes  necessary to  decide the other questions also. In the circumstances, we think that the case should go  back to  the  High  Court  for  further  hearing. Accordingly, the  impugned judgment  is set  aside, and  the matter is  remanded for  further hearing and disposal of the case in accordance with law. N.V.K.                                       Appeal allowed. 910