SUBHASH MUUIMAL GANDHI  I'.  

L. HIMINGLIANA AND ANR.  

AUGUST 26, 1994  

[P.B. SAW ANT AND M.K. MUKHERJEE, JJ .]  

Conservation of Foreign Exchange and Prevention of Smuggling Ac-

tivities Act, 1974 :  

A  

B  

Detention order-<:ha//enge at pre-execution stage-When permis- C  sibl&-f'ower of coun to inte!fere with detnetion order prior to execu- tion-Scope and e.i.telll of-Detention ordei-Delay in execution-Effect of  

The respondent passed an order on August 23, 1990 under section  3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, 1974 to detain the appellant with a view to preventing him D  from smuggling goods. On getting the information about the making of the  order the appellant filed a writ petition in the High Court challenging the  same and it was dismissed.  

In appeal to this Court it was contended on behalf of the appellant E  that the grounds of detention, and scope of challenging detention order at  pre-execution stage, given by this Court in Addi. Secretary, Govt. of India  v.Alka Subhash Gadia, [1992) Supp. l S.C.C. 496 were not exhaustive but  illustrative; (ii) that the detention order was passed 'for a wrong purpose',  namely, to harass and humiliate the appellant by concocting a false case  of smuggling, based primarily on a confession obtained from him after F  subjecting to him to assault, illegal detention and extortion; (iii) there was  abuse of extraordinary constitutional power by the State machinery be- cause the appellant was not produced before the Magistrate within 24  hours and (iv) the detention order was passed long back and the maximum  period of detention which the appellant would have undergone i.e. 2 years G  was long over and therefore bis detntion now would be punitive and not  preventive.  

Dismissing the appeal, this Court  

HELD : 1. The order of detention is not made for a purpose ex- H  785

786 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.  

A traneous to the provisions or COFEPOSA. The detaining authority has  denied the allegation or assault and extortion and have stated in their  affidavit-in-reply that there was no breach or constitutional or legal  provision as the petitioner was produced before a competent court within  24 hours or his formal arrest. Needless to say these are disputed questions  

B  or fact, which this Court cannot entertain much less delve into or decide  upon. In any case, the said fact even if true cannot vitiate the order of  detention. [791-F·C, 792-A)  

2. Even if it is held that the explanation offered by the respondents  for delayed production is not a satisfactory one and that the Customs  

C Officers have failed to comply with constitutional and statutory require·  ments, the order of detention, which has been made by the detaining  authority on the basis of its satisfaction that the petitioner ivas smuggling  gold, would not be bad on that score. The appellant, however, would be  certainly entitled to seek appropriate relief by way of compensation or  

D otherwise in case he succeeds in proving that he was wrongfully and  illegally detained. [791-G·B]  

'E  

3. In Alka Subhash Gadia's case this Court has expressly laid down  that the grounds of interference with detention orders at pre-execution  stage have to be limited in scope and number as mentioned therein.  However, the other contingencies, if any, must be of the same species as of  the five contingencies referred to therein. [790-F, 791-B]  

Addi. Secy. Govt. of India v. Alka Subhash Gadia, (1992) Supp. 1  S.C.C. 496 and N.K Bapna v. Union of India, [1992] 3 S.C.C. 512, relied  

p on.  

4. It is undoubtedly true that an unusual delay In execution  of an order of detention if not satisfactorily explained, may persuade the  Court to draw an inference that the order is punitive and not preventive.  There is, however, no scope for drawing such an inference in this case as  

G the delay here has been occasioned not by any omission or commission on  the part of the detaining authority. On the contrary, it is the appellant who  has delayed the execution by first moving the High Court and then this  Court. [792-EJ  

H Bhawar/a/ v. State of T.N., (1979] 1 S.C.C. 465, referred to.  

I

S.M. GANDHI v. L. HIMINGLIANA [M.K. MUKHERJEE, J.] 787  

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A  540 of 1994.  

From the Judgment and Order dated 1.10.90 of the Bombay High  Court in W.P. Cr!. No. 1083 of 1990.  

Ram Jethmalani, Ms. Lata krishnamoorthy and Abani Kumar Saha B  for the Appellant.  

N.N. Goswami, A. Subba Rao, C.V. Subba Rao and Ms. Sushma Suri  

for the Respondents.  

The Judgment of the Court was delivered by  

M.K. MUKHERJEE, J. Special leave granted.  

This appeal is directed against the order dated October 1, 1990  passed by the Bombay High Court in Writ Petition (Cr!.) No. 1083 of 1990.  

On August 23, 1990, the Secretary (Preventive Detention) to the  Gvoernment of Maharashtra, the respondent No.1 herein, made an order  under secticm 3(1) of the Conservation of Foreign Exchange and Preven- tion of Smuggling Activities Act, 1974 ('COFEPOSA' for short) to detain  

c  

D  

the appellant with a view to preventing him from smuggling goods. On E  getting information about the making of the order the appellant filed a writ  petition in the Bombay High Court challenging the same and having failed  there moved this Court by filing the special leave petition. To the petition  the appellant has annexed, amongst other documents, purported copies of  the order of detention and the grounds on which it is based though it is  not quite clear how he came by them. The respondents, however, contend F  that the appellant obtained those copies clandestinely for they were to be  served upon him only on detention. However, this aspect of the matter  need not detain us as the respondents have not assailed the authenticity of  those copies.  

Before we proceed to consider the contentions raised by Mr. Jeth- G  malani, the learned senior counsel appearing in support of the appeal, we  may profitably refer to the factual allegations made in the grounds of  detention so far as they are relevant for our present purposes. It is first  stated therein that in the early hours cf May 22, 1990 when Cathay Pacific  Flight No. CX 750 arrived at the Sahar Airport, Bombay, some Customs H

788 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.  

A Officers accosted the appellant, who had come from Dubai, inside the  aircraft in presence of two panchas and asked whether he was carrying  gold. Initially he answered the question in the negative but when the  

Officers touched his person and felt some hard substance below his waist  

belt he admitted having concealed gold bars tied around his waist. He was  

B  then taken down to the Customs Baggage Examination Hall and from there  to the S.D.O's room in the Hall. There, on search, three cotton hells tied  around his body were recovered. Each of the three belts was found tu  

contain 60 gold bars, each weighing 10 tolas, and bearing foreign markings.  

The grounds of detention then detail the statement, the appellant  C made to the Customs O'fficers on that day whereform it appears that he  

not only admitted that be brought the seized 180 gold bars from Dubai but  earlier also on May 15, 1990 he had illegally imported 120 gold bars from  Dubai. In the statement be also disclosed the names of the persons who  were involved in the transactions. Another statment made by the appellant  

D on May 24, 1990 regarding his niodus operandi of smuggling the gold has  next been incorporated in the grounds of detention. The grounds of  detention then recite that on May 24, 1990 the appellant was arrested and  on May 25, 1990, when he was produced before the Addi. Chief  Metropolitan Magistrate, Bombay, he made a statement. The statement so  made has also been reproduced in the grounds of detention.  

E  The appellant's version of the incident as disclosed in that statement  

is that after he was brought down from the aircraft, he Wds allowed to take  out his baggage and then leave the airport. While he was waiting outside  he was brought back and taken to the S.D.O.'s office where he found cotton  

F belts lying on tne table. Then and there the Customs Officers asked the  appellant about the gold to which he replied that it did not belong to him.  Then the Officers started assaulting him and tying the belts around his  body. During the process he became unconscious. It is next stated in the  grounds that Addi. Chief Metropolitan Magistrate while remanding the  appellant into judicial custody ordered his medic&! examination. Pursuant  

G thereto he was examined by the Chief Medical Officer of the Bombay  Central Prison Hosptial and his report indicated that he had suffered  injuries. The Customs authorities, however, denied the allegations of  assault ;nade by the appellant.  

H According to the detaining authority, from all the facts stated in the

'  

S.M. GANDHI v. L. HIMINGLIANA IM.K. MUKHERJEE. J.) 789  

grounds of detention, it was evident that the appellant smuggled massive A  quantity of gold to India for the second time and he was likely to continue  to do so for which it was necessary to detain him.  

The question as to whether a detenu or anyone on his behalf is  entitled to challenge an order of detention without the detenu submitting  or surrendering to it and, if so, what will be the nature, scope and extent  of such challenge came up for consideration before a three-Judge Bench  of this Court, of which one of us (Swant J.) was a member, in Addi. Secy.,  Govt. of India v.Alka Subhash Gadia, [1992] Suppl. 1SCC496. The Court,  after striking a balance between the competing claims of the individual to  his liberty and of the State to detain an individual to safeguard the interest  of the society and on a conspectus of the decisions of this Court and of  different High Courts on the subject, answered the question with the  following words :  

B  

c  

"It is not correct to say that the Courts have no power to entertain D  grievances against any detention order prior to its execution. The  courts have the necessary power and they have used it in the proper  cases as has been pointed out above, although such cases ha,·e  been few and the grounds on which the courts have inteifered with  them at the pre-execution stage are necessarily very limited in scope  and number, viz., where the courts are prima facie satisfied (i) that E  the impugned orders is not passed under the Act under which it  is purported to have been passed, (ii) that it is sought to be  executed agsinst a wrong person, (iii) that it is passed for a wrong  purpose, (iv) that it is passed on vague, extraneous and irrelevant  grounds or (v) that the authority which passed it had no authority F  to do so. The refusal by the courts to use their extraordinary  powers of judicial review to interfere with the detention orders  prior to their execution on and other ground does not amount to  the abandonment of the said power or to their denial to the  proposed detenu, but prevents their abuse and the perversion of  the law in question." G  

(emphasis supplied)  

Mr. J ethmalani first contended that the five contingencies referred  to in the above quoted passage were not exhaustive but illustrative as there H

790 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.  

A might well be other contingencies in which- pre-execution challnenge to  the order of detention would be permitted. In elaborating his contention  

Mr. Jethmalani submitted that in the case in hand there were sufficient  

8  

c  

materials to prove that the Customs Officers concocted a false case of  smuggling against the appellant after beating him, keeping him in illegal  

custody for three days and coercing him to make a confessional statement.  

In support of this submission, Mr. Jethmalani first drew our attntion to the  report of the doctor of the Jail Hospital submitted on June 2, 1990 to the  

Chief Metropolitan Magistrate regarding medical examination of the ap- pellant which indicate that the doctor found some bruises and abrasions  

on his person and he complained of pain on his body. Mr. Jethmalani then  drew our attention to the fact that though the appellant was apprehended  in the early hours of May 22, 1990 and was thus constitutionally and  statutorily required to be produced before the nearest Magistrate latest by  

May 23, 1990 he was kept unlawfully detained till May 25, 1990 when the  Customs authorities produced him in Court. Mr. Jethmalani submitted that  

D as these facts unmistakably demonstrated the misuse and abu~e of extraor- dinary constitutional powers by the State machinery this Court would not  allow the liberty of a victim of exercise of such powers to be taken away  even if the parameters mentioned in Alka Subhas/J Gadia did not apply in  

E  

F  

G  

this case. Even otherwise, Mr. Jethmalani urged, the facts herein clearly  made out a case for interference by this Court under ctegory (iii) men- tioned in the above quoted passage in Alka Subhash Gadia, namely that  the impugned order was passed for a wrong purpose.  

Having given our anxious consideration to the above contention of  Mr. Jethmalani, we are unable to accept the same. In the passage, earlier  

quoted from A/ka Subhash Gadia, this Court has expressly laid down that  

the interference with detention orders at pre = execution stage has to be  limited in scope and number as mentioned therein. The Court has  reiterated the same view as well be evident from the following further  

observations made in that case :  

" .......... in the rare cases where the detenue, before being served  with them, learns of the detention order and the grounds on which  it is made, and satisfies ·the Court of their existence by proper  affirmation, the Court does not decline to entertain the writ peti-

H tion .even at the pre-execution stage, of course, on the very limited  

,

S.M. GANDHI v. L. HIMINGLIANA [M.K MUKHERJEE,J.] 791  

grounds stated abvoe." A  

(Emphasis supplied)  

The abvoe principles laid down in Alka Subhash Gadia have been  quoted \\ilh approval by another three-Judge Bench in N.K Bapna v.  U11io11 of India, [1992] 3 SCC 512. Bound as we are by the above judgments, B  we must hold that the other contingencies, if any, must be of the same  species as of the five contingencies referred to therein. Coming now to Mr.  Jethmalani's submission, that the detention order was passed 'for a wrong  

purpose', namely, to harass and humiliate the appellant by concocting a  false case of smuggling, based primarily on a confession obtained from him C  after subjecting to him to assault, illegal detention and extortion we find  that the detaining authority has denied the allegations of assault and  extortion. Needless to say these are disputed questions of fact, which we  cannot entertain much less delve into or decide upon. In any case, the said  fact, even if true cannot vitiate the order of detention. As regards the  allegation of illegal detention, the respondents have drawn our attention to D  the following lines in paragraphs 10 of their affidavit-~-reply :  

" .............. the petitioner was allowed to stay in the Air Intelligency  Office as the investigation had to be done to find out the  whereabouts of the receiver of the contraband gold,. the informa- E  tion of which was given by the petitioner to me and other inves- tigating officers during the course of interrogation. The petitioner  was interrogated only and not arrested as alleged by him. The  petitioner was arrested only on 24.5.90 and produced before Chief  Metropolitan Magistrate on 25.5.90.'  

to contend that there was no breach of constitutional or legal provision as  the petitioner was produced before a competent court within 24 hours of  

F  

his formal arrest. In our considered view, even if it is held that the above  explanation offered by the respondents for delayed production is not a  satisfactory one and that the Customs Officers have failed to comply with  constitutional and statutory requirements, the order of detention, which has G  been made by the detaining authority on the basis of its satisfaction that  the petitioner was smuggling gold, would not be bad on that score. The  appellant, however, would be certainly entitled to seek appropriate relief  by way of compensation or otherwise in case he succeeds in proving that  he was wrongfully and illegally detained. For the foregoing discussion, we H

792 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.  

A are unable to hold that the order of detention is made for a purpose  extraneous to the provi>ions of COFEPOSA.  

Mr. Jathmalani nei..t contended that the utter absurdity of the allega- tion of smuggling made against the appellant would be borne out by the  photographs which were taken at the instance of the Customs Officers at  

B the time of the appellant's apprehension as they would clearly show that it  was impossible for him to zip up his trousers, with three belts, tied, each  containing 60 pieces of gold, weighing 10 tolas each, around his waist.  Though this factual submission was not a relevant consideration at this  stage in the context of the principles laid down in Alka Subltash Gadia we  

C had, to satisfy our judicial conscience, called for and saw all the  photographs carefully. Having done so we are constrained to say that Mr.  Jethmalani's submission in this regard was based on wrong instructions.  

Mr. J ethmalani lastly submitted that having regard to the fact that  the order of detention was passed as far back as in 1990 and the maximum  

D period of detention, which the appellant would have to undergo under the  order was two years, was long over, his detention at this distant point of  time would be punitive and not preventive. It is undoubtedly true that an  unusual delay in execution of an order of detention if not satisfactorily  explained, may persuade the Court to draw such an inference. There is,  

E however, no scope for drawing such an inference in this case as the delay  here has been occasioned not by any omission or commission on the part  of the detaining authority. On the contrary, it is the appellant who has  delayed the execution by first moving the Bombay High Court and then  this Court. That apart, the respondents have asserted that though this  Court had not passed any interim order against execution of the order, it  

F could not be served as the appellant was absconding. It is pertinant to point  out here that an identical contention raised by Mr. J ethmalani on similar  facts was negatived by this Court in Bhawar/al v. State of T.N., (1979] 1 SCC  465.  

G On the conclusions as above, we dismiss the appeal.  

T.N.A. Appeal dismissed.  

I