Mohandas (Sic) Khemani vs The State Of Maharashtra Through ...
2003 Latest Caselaw 345 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. Bagve for the petitioner and Mr. D.S. Mhaispurkar, APP for the State. Petition is filed by the father of the detenu. The name of the detenu is Pursushottam Mohandas Khemani. He came to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by order dated 9.4.2002.

2. The detention has been challenged by the detenu on number of grounds which are about 16 in number. They are in paragraph 5 sub-paragraphs (i) to (xvi). Mr. Bagve however restricted himself to certain grounds.

3. The incident giving rise to the detention order is that on 10.10.2001, the Officers of Air Customs intelligence Unit and Police Department of Chhtrapati Shivaji International Airport, Mumbai, kept watch on a passenger by name Purushottam Mohandas Khemani i.e. the detenu. He arrived on that date from Singapore by Qantas Airlines Flight. He tried to hand over a polythene carry-bag to a loader / utility hand of M/s. Cambata Aviation Ltd. Mumbai by name Vinay Ramakant Narvekar near the Aerobridge of the terminal. But because of the watch he could not succeed in doing so. The detenu was intercepted and upon his search of the hand bag 54 gold bars valued at Rs. 30,53,960/- were recovered from him.

4. The statement under Section 108 of the Customs Act was recorded so also statements of Vinay Ramakant Narvekar and Chandrabhan Singh who were his accomplice, were recorded. It was revealed that the detenu had indulging in similar activities in the past and therefore the detention order was clamped upon him for his involvement in smuggling of goods and in a manner prejudicial to the conservation of foreign exchange and therefore with a view of preventing him in future from smuggling of goods and acting in manner prejudicial to the conservation of foreign exchange.

5. Mr. Bagve, as stated above, pressed the following points with which only we are dealing and not on other grounds as they were not pressed nor argued.

6. First ground raised by Mr. Bagve is ground No. S (1) i.e. delay in passing the detention order. According to him the incident of smuggling occurred on 10.10.2001. Statement of the detenu and the co-accused Vinay Narvekar was recorded on the same day. They were arrested on 10.10.2001 itself. Their further statements were recorded on 12.10.2001. They were produced before the Magistrate on 12.10.2001 and bail was granted on 23.10.2001 by common bail order. They availed bail on 30.10.2001. They retracted their statements i.e. detenu and Vinay Narvekar, arrayed statements under Section 108 and so also Chandrabhan Singh retracted his statement. Show cause notices were served on 5.4.2002, whereas the impugned detention order came to be passed on 9.4.2002 and therefore according to Mr. Bagve there is an inordinate delay of 5 months and 12 days from the date of completion of investigation which was over on 29.10.2001 and that this delay has severed the live link between the activities of the detenu and the detention order. He therefore contended that the detention order is liable to be quashed on this ground alone. According to Mr. Bagve ground (i) as well as ground (iii) are regarding delay only. In ground (iii) the detenu has alleged that it was for the detaining authority as to when the proposal for the detention was received and the time taken by the detaining authority for scanning the material and formulating the grounds of detention. He has contended that the detaining authority ought to have acted promptly and vigilantly after receiving the proposal and ought to have issued the impugned order of detention without any loss of time.

7. Mr. Bagve, in this connection referred to the affidavit of the detaining authority and contended that the explanation given by the detaining authority is totally unsatisfactory and there are patches or certain period for which there is no explanation in the affidavit.

8. As against this, it was contended by Mr. Mhaispurkar that there is a judgment of the Division Bench of this Court reported in 1998(2) Mh.L.J. 496, Rafiq Abdul Karim Merchant v. Rajendra Singh, Secretary to Government of Maharashtra, where in the Division Bench did not find the delay of seven and half months as fatal to the detention order. Further, Mr. Mhaispurkar also contended that in the affidavit the detaining authority has given satisfactory explanation about the delay and the detention order cannot be vitiated on that ground.

9. The next point urged by Mr. Bagve was that even if the activity of the detenu as referred to in the grounds of detention, namely his bringing told in India without payment of customs duty is taken as it is, it would affect the augmentation of foreign exchange and not conservation but since the detention is based on conservation of foreign exchange the same is vitiated. Mr. Bagve further contended that if anything is brought from foreign country in India customs duty is required to be paid and if the same is not paid that can be said to affecting the augmentation of foreign exchange and not conservation. According to Mr. Bagve an activity in order to affect conservation of foreign exchange must be of such a nature as to affect the existing foreign exchange in the country and since according to him this aspect is lacking in the entire transaction, the detention order could not be clamped upon the detenu regarding conservation of foreign exchange. According to him the activity would at the most be affecting the augmentation of foreign exchange.

10. As against this, it was contended by Mr. Mhaispurkar that the matter is not so simple as is tried to be putforth by Mr. Bagve. He pointed out to us from the statement of the detenu and the co-detenus that for bringing this gold from the country the detenu was paid foreign exchange, which he paid in turn to the given or the gold and thereby he has deprived this country of the foreign exchange. He was also paid his reward in foreign exchange and non-disclosure his activity affected conservation of foreign exchange and the detention order was rightly clamped upon him under that Head. The payment on both the counts in foreign exchange which was a part of the transaction was never disclosed by the detenu and this has definitely affected conservation of foreign exchange.

11. The next ground that was urged by Mr. Bagve was on the basis of ground (x) in the petition. According to him the detaining authority in the detention order has stated in paragraph 3 as under:

"I am also aware that you have admitted that you have been engaged in the act of smuggling in the past also."

Mr. Bagve contended that if the entire statement of the detenu under Section 108 of the Customs Act is read, no such admission is given by the detenu and therefore the aforesaid observation or finding of the detaining authority is contrary to the record and it is clear indication of non application of mind. Mr. Bagve contended that according to the statement of the detenu he went to Singapore only once and to Dubai on other occasions from where he used to bring foreign goods from those countries, got them "cleared" and sell them in market at profit. Mr. Bagve also drew our attention to Question No. 7 in the said statement of the detenu where detenu has stated that "I have not brought any gold or contraband in earlier visits/arrival. According to Mr. Bagve the person could go abroad and bring foreign goods under the Baggage Rules up to the value of Rs. 12,000/- free of duty and there was nothing wrong on the part of the detenu in doing so because bringing goods under the Baggage Rules did not amount to smuggling. Therefore according to Mr. Bagve neither there is any admission of the nature relied upon and quoted by the detaining authority in paragraph 3 of the detention order, nor there is anything to show or indicate that the detenu had in the past indulged in smuggling activities. He therefore contended that the detention order is an example of total non application of mind and is therefore liable to be quashed.

12. As against this, Mr. Mhaispurkar contended that if statement of the detenu under Section 108 of Customs Act is read carefully and fully along with the statements of the other co-detenus, it is clear that not only there is an admission by the detenu of indulging into similar smuggling activities in the past but there is sufficient material to hold that detenu has been doing these activities in the past, and therefore the detaining authority was totally justified in holding that the detenu was indulged into similar activities in the past and has given the aforesaid admission. According to Mr. Mhaispurkar therefore this is not a case of non application of mind nor is a case of drawing erroneous conclusion or holding that the detenu was habitual offender.

13. Mr. Bagve also contended with reference to ground (xiii) that page 188 of the compilation of documents was illegible and therefore it has affected the right of the detenu to make effective representation. However, when it was pointed out to him that it was only a surety bond given by the detenu pursuant to the bail order and illegible part would not affect right of making effective representation, he did not further press this point.

14. Mr. Mhaispurkar while giving a general reply to the submissions made by Mr. Bagve contended that even if one of the ground was not found to be legal or valid then the detention order could not be vitiated in view of the provisions of Section 5A of the COFEPOSA Act.

15. Mr. Bagve on the other hand contended that the incident which is the basis of the detention order is only one or single or that incident is solitary then Section 5A could not be resorted to.

16. Mr. Bagve in support of his contention regarding delay relied upon the following Authorities:

1) A. Abdul Rehman v. State of Kerala and Ors.

2) Pradeep; Nilkanth Paturkar v. S. Ramamurthi and Ors.

3) 1999 Supreme Court Cases (Cri) 552 Ahamed Mahaideen Zabbar State of I.N and Ors.

Since Mr. Bagve has cited number of authorities on the point of delay, it is necessary to find out the facts of each case.

In , A. Abdul Rehman v. State of Kerala and Ors., the detenu's residence was raised on 30.11.1986 and 11 gold biscuits were found. The detention order was passed on 7.10.1987. The detenu was arrested on 18.1.1988. There was therefore obviously delay of 11 months in passing the detention order. In that background of the matter the Supreme Court has held that:

"There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back courtyard of the house of the detenu. As repeatedly pointed out by this court that there is no hard or fast rule that merely because there is a time lag between the offending acts and the date of order of detention, the casual link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that that occurred in passing the order."

The Supreme Court then referred to another Judgment wherein there was a time gap of 6 months between the incident and the date of order of detention and quoted as under:

"No authority, acting rationally, can be satisfied, subjectively or otherwise, or future mischief merely because long ago the detenu had done something evil. 10 rule otherwise is to sanction a simulocrum or a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the casual connection has been broken in the circumstances of each case. There is, therefore, no hard and fast rule that merely because there is a time lag of about, six months between the 'offending acts' and date of the order of detention, the casual link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of cash case."

In Pradeep Nilkanth Paturkar v. S. Ramamurthi and Ors., the test laid down are similar in case of A. Abdul Rahman v. State of Kerala and Ors., and further held that when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned. Again in the same judgment it is observed in paragraph 12 that it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason of the delay in taking preventive action, like information or participation being available only in the course of an investigation, and then the Court observed each case has to be decided in the facts and circumstances appearing in that particular case. In view of the two judgments of the Supreme Court, referred above, we do not feel it necessary to refer to the other judgments because the criteria is almost an identical.

17. As against this, Mr. Mhaispurkar relied upon the judgment of the Division Bench of this Court in the case of Rafiq Abdul Karim Merchant v. Rajendra Singh Secretary to Govt. of Maharashtra reported in 1998(2) Mh.L.J. 496, in which this Court observed as under:

"That delay simpliciter in the issuance of a detention order does not vitiate the same. The general rule is that it would be vitiated if there is no explanation for the same. In a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, by itself would not vitiate the same. In such cases it will only be vitiated if on account of delay the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped. For determining whether such a live link has been severed or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If there was no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance of the detention order would be fatal and the same would be vitiated because the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would be snapped. On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would not be lost and the detention order would not be vitiated. The question of delay in issuing a detention order cannot be approached with the same sensitively and strictness in case of a preventive detention under the COFEPOSA or PITNDPS, as in a case under the National Security Act. A wider margin has to be given to the authorities in cases under the COFEPOSA and PITNDPS. After going through the grounds of detention it was evident that the propensity and potentiality of the detenu was such that it could not have been frustrated by a mere delay of seven and half months in the issuance of the detention order. The propensity and potentiality of the detenu was such that on account of the mere delay of / and 1/2 months in the issuance of the detention order, the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on the did not get snapped. The delay in the disposal of the representation of the detenu was pleaded on the ground is that although the detenu made a representation through her counsel on 4th March 1997 but the same was disposed off after an inordinate delay of more than 7 weeks on 24.4.1997, by the Secretary, Revenue of Union of India. A perusal of the chronology given showed that the only delay worth considering was that of four days, which had occurred between 31st March, 1997 and 3rd April, 1997. Four days delay was not so unduly long that it vitiated the continued detention of the detenu. The law does not require that each days delay in the disposal of the representation should be explained; there should be no negligence or callous inaction or avoidable red tapism in the disposal or the representation; and if there has been delay in the disposal of the representation the same should be satisfactorily explained. Four days delay, i.e. delay between 31st March 1997 and 3rd April 1997 in disposal of detenu's representation, cannot be castigated as unreasonable, vexatious or inordinate. Since the delay in the case in hand was only of 4 days, the delay did not vitiate the detention of the detenu."

It is pertinent to note that the Division Bench has referred to and relied upon the other Judgments of the Supreme Court reported in :

1) ,

2)

3) 1996(1) LJ 473,

4) 1997 All.M.R. (Cri) 1782

5)

6) Cri.W.P. No. 835 of 1996 decided on 31.7.1997,

7) Cri.W.P. No. 46 of 1997 decided on 30.7.1997.

In the case before the Division Bench of this Court there was delay of seven and half months in issuing the order of detention. There the detenu was intercepted on 6.6.1996 by the Officers of the Customs Preventive Commissionerate, in Mumbai. At the entrance gate of security hold No. 8, Module 11, NIPI, Sahar International Airport, Mumbai, while she was on her way to board Air India flight scheduled to leave for Singapore, she was subjected to security check and in her baggage it was found that she was having 28 boundles of US dollars. Her suitcase was also examined and it was found to contain 42 bundles of US dollars in six plastic handles. The value of the property in Indian currency was Rs. 37,75,680/-. She was not having any permit of the RBI to carry this currency out of country. Her statement was recorded forthwith and in that background the detention order came to be passed after seven and hair months. The argument in that case was also identical i.e. single incident where investigation was almost complete and the detention order same to be passed after seven and half months. In the case before us according to Mr. Bagve there is a single incident and the detention order is passed after five months and four days. Since the criteria in each case is whether the delay can be said to snap the live link between the activities and the detention order, we are of the opinion that there is no delay in this case which is sufficient to snap the said live link. Therefore following the judgment of the Division Bench of this Court, referred to above in Rafiq Abdul Karim's case, we hold there is no delay and considering that this is a case under COFEPOSA where as held by the Division bench wider margin has to be given to the authorities in cases under COFEPOSA and we also hold that the propensity and potentiality of the detenu was such that the mere delay in issuing detention order cannot frustrate. Ground of delay raised by the detenu is therefore required to be rejected.

18. The second important ground that was raised by Mr. Bagve is that there is no admission as such given by the detenu in his statement under Section 108 "as per ground (x) or the petition" about having indulged in the act of smuggling in the past also and therefore the same could not have been made the basis for passing the detention order as is found in para 3 of the detention order, wherein the detaining authority has stated" I am also aware that you have admitted that you have been engaged in the act or smuggling in the past also". Mr. Bagve contended that nowhere in the statement under Section 108 of the Customs Act the detenu has given any such admission and therefore then detention order should be declared illegal and invalid.

19. The statement of the detenu is given to us in compilation filed by the detenu. It starts from page 45 (internal page 4). The detenu is studied upto IX Std. in Sindhi medium. He is married living with his family. He is doing readymade garment business. He had a passport. After he gave his said particulars or his activities, certain questions were put to him and they are relevant for the purpose of this objection raised by Mr. Bagve. The questions are as under:

Q.1 What is the purpose of visit to Singapore?

A. Three days before visiting to Singapore i.e. on 05/10/2001, one person whose name 1 dont' now phoned me at my residence and informed me to collect Qantas Airlines ticket for Singapore for journey to be performed on 08/10/2001, so as to collect gold from a person at Singapore who would be identified there.

Q.2 Who handed over this gold at Singapore?

A. At Singapore nobody has handed over this gold to me. But I was informed by driver who came to collect me at airport and also came to drop me at airport that I will get the said gold consignment kept in plastic bag next to my seat int he aircraft.

Q.3 Where you have stayed in Singapore?

A. I stayed at Arya Samaj in Singapore and I have paid twenty Singapore dollars for the stay.

Q.4 You have made thirty visits from Jan'2001 till date. Which places you have visited and who has financed your ticket and stay at abroad?

A. In this year I have visited once Singapore and the rest of the visits are for Dubai. Whenever I made visit to abroad I will bring foreign goods clear the same and sell the goods at local market to make profit out of the same. The same money is used for the next trip and stay at abroad. No one has financed me for any trip.

Q.5 You have travelled abroad frequently, are you an Income Tax assessee or filing any returns to them?

A. I am not Income Tax assessee. I have not filed my returns to the Income Tax Dept.

Q.6 How much money you are receiving for carrying this job?

A. I was promised by a person who has earlier phoned at my residence to pay 250 Singapore dollars for carrying the said gold.

Q.7 Whether you had brought any gold in your previous visits?

A. No. I have not brought any gold or contraband in my earlier visits/arrival.

Q.8 Whether any custom case has been registered against you earlier?

A. I have not come under any adverse notice of the customs earlier.

Q.9 The goods you are bringing from Singapore, to whom you are going to handover and how?

A. The person who has informed abut the gold also informed that one Mr. Vinay wearing blue uniform, loader, will identify himself and collect the said gold before immigration.

Q.10 Do you like the state any more information in this regard?

A. I have nothing more to say, other than what I have stated above. Since this is my first offence a lenient view may be taken.

Apart from this statement of the detenu under Section 108 there are other statements of the co-detenues. Looking to the fact that the detenu though dealing in readymade garments visited Singapore once and 29 times Dubai and his admission that he used to bring foreign goods during his visits and that the money was used for the next trip and for stay abroad without any financial aid and unknown persons contacting him on phone before his visits to Singapore and asking him to collect gold coupled with the statement of the co-detenu were sufficient material before the detaining authority to conclude that the detenu was indulging in smuggling of gold and he has admitted so in his statement under Section 108.

20. Mr. Bagve tried to contend that the detenu has used the words in reply to question No. 4, that whenever I made visit to abroad I will bring foreign goods, clear the same and sell the goods..." (stress added). According to Mr. Bagve the word "clear the same" is used by the officers fully conversant with the provisions of the Customs Act and therefore it should be read as clearing the goods after payment of custom duty. Because according to Mr. Bagve a man going abroad is permitted to bring goods worth Rs. 12,000/- without declaration. According to Mr. Bagve therefore activity of the petitioner-detenu does not amount to smuggling.

21. We are not at all in agreement with the submissions of Mr. Bagve in this regard. The statement recorded under Section 108 is the statement of the detenu and not of the officers. The detenu has explained the modus operandi and use of the word "clear' by him does not at all, in the background of the entire statement taken as whole mean that he was doing a legitimate job. Whatever he was doing was legally permission. This contention is also required to be rejected. This is not a case of misreading of document and therefore the case law cited by Mr. Bagve in that regard is of no help to him.

22. The next ground that was urged by Mr. Bagve was that grounds of dete (SIC) detention are not made simultaneously and therefore detention order stands vitiated. This ground was raised by Mr. Bagve on the basis of the affidavit in reply. He relied upon judgment Krishna Murari Aggarwala v. The Union of India and Ors. In that case the Supreme Court appears to be concerned with the interpretation of Section 3(1) of Maintenanced of Internal Security Act. Paragraph 7 of the judgment was relied upon by Mr. Bagve, and we are reproducing the said para:

"7. Section 3(1) of the Act runs thus:

"3. (1) The Central Government or the State Government may.-

(a) if satisfied with respect to any person (including a foreigner) that wit a view to preventing him from acting in any manner prejudicial to-

(i) the defence of India, the relations of India with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community, or

(b) if satisfied with respect to any foreigner that with a view to regulating this continued presence in India or with a view to making arrangements for his expulsion from India;

it is necessary to do so, make an order directing that such person be detained." This power can also be exercised by the officers mentioned in Sub-section (2), and in the instant case we are concerned with the District Magistrate. The words "make an order directing that such person be detained" clearly postulate three conditions - (i) that the order must be made by the authority mentioned in Section 3; (ii) the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S.K.D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S.K.D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. IN view, however, of the contradictory affidavits given by Mr. S.K.D. Mathur, it is difficult to determine whether Mr. S.K.D. Mathur or Mr. R.C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be the clear violation of the provisions of Section 3 of the Act in this case."

This judgment is of no application to the facts of the present case. It is necessary to clarify that page 44 of the affidavit of Smt. Ranjana Sinha was relied upon by mr. Bagve and particularly the following paragraph:

"It is submitted that thereafter the Detaining Authority after carefully going through the grounds of detention as formulated earlier and other documents and contemporaneously issued the Order of Detention on 9.4.2002."

According to Mr. Bagve this particular para means that grounds of detention formulated by other authority at some other time and then the detaining authority issued the detention order on 9.4.2002. Sending of draft of grounds of detention appears to be normal mode but the detaining authority has to apply its mind independently and from the affidavit with this paragraph 7 taken fully as it is, it is clear that the detaining authority has come to an independent conclusion about the sufficiency and necessity of detention and then issued the detention order. In the case before the Supreme Court, the Supreme Court held that the statute does not contemplate a sort of composite or a joint order passed by several authorities. This is not a case where order is made by one authority and grounds are prepared and signed by another authority. Therefore, this judgment is of no help and the contention raised by Mr. Bagve is required to be rejected.

23. Mr. Bagve further contended that co-detenu was released in Criminal Writ petition No. 529 of 2002 on the ground that one of the heads of the detention on which he was detained was wrong. Our attention was invited by Mr. Bagve in this regard to the unreported judgment of the Division Bench of this Court in the said Criminal Writ Petition No. 529 of 2002 Rajaram Singh v. The State or Maharashtra and Ors. In that case order of detention was passed against that detenu in order to prevent him in future from smuggling goods and acting in manner prejudicial to the conservation of the foreign exchange. On behalf of the petition - detenu in that case the contention was raised that no material was placed before the detaining authority to come to a conclusion that the detenu was smuggling goods and from the material on record at the most it could be said that the detenu could have been detained for abating smuggling of goods and activities could at the most amount to facilitating of the smuggling of the goods. The court hold in this background that the activities of the detenu were abating the smuggling of goods and therefore it concluded that it was the case of non-application of mind. It will be therefore clear that the facts of the Criminal Writ Petition No. 529 of 2002 of the co-detenu were all altogether different. His detention was for different grounds and his release was also on different grounds.

24. For all the reasons stated above, we do not find any merit in this petition. It is required to be rejected. Hence, petition dismissed. Rule is discharged.