Mohammed Farooq vs Union Of India And Another
1986 Latest Caselaw 135 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

1. This petition under Article 226 of the Constitution of India has been filed by one Shri Mohd. Farooq, son of the detenu - Smt. Jaithoon Beevi, challenging the validity of the detention order made by Shri K. K. Dwivedi, Joint Secretary to the Government of India, under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (for short known as the Act) with a view to preventing her from acting in any manner prejudicial to the augmentation of foreign exchange. The detention order is challenged on a variety of grounds. However, before we notice the facts and the sequence of events on which the detaining authority has formed the subjective satisfaction, it is necessary to bear in mind some essential and relevant facts and dates.

2. The detenu is admittedly a sixty-eight years old lady. She is ailing and is illiterate. She has three sons, Abdul Ghafoor, Kamal Bachta and Farooq, the petitioner. Kamal Bachta and Abdul Ghafoor live in Dubai. The name of the wife of Kamal Bachta is Jalma Beevi while the name of Abdul Ghafoor's wife is Mehrunnissa. One Jaberullah is his brother-in-law.

3. The order detention is dated 20th September, 1985. The detenu was arrested pursuant this detention on 13.10.1985. On 14.10.1985 grounds of detention were communicated to her. She filed a representation first on 7.11.1985 which was rejected by an order dated 28.11.1985 and received by her on 2.12.1985. The second representation was made on 24.1.1986 in which she also requested for supply of certain documents which had not been supplied to her and these documents were sought to enable her to make a proper and effective representation. This representation came to be rejected on 17.2.1986 but copies of some documents asked for were supplied. The order of rejection of the last representation was communicated to her on 24.2.1986.

4. The facts are that in pursuance of an information the premises of the detenu's son, Abdul Ghafoor at New Street, Murukkangudi, Kumbakonam Taluk was search on 8.2.1985. In this house the detenu along with her daughter-in-law, Mehrunnissa, wife of Abdul Ghafoor together with the children of Abdul Ghafoor were residing on the relevant date. As a result of this search foreign goods valued at Rs. 2,56,905 and documents in 66 sheets were seized. On 9.2.1985 the residential premises of Jaberullah, brother-in-law of Abdul Ghafoor were also searched resulting in the seizure of foreign goods valued at Rs. 1,53,165/- and some documents were recovered. A Sony Trinitron Colour T.V. - KV 2032 was recovered from the premises of Abdul Ghafoor on 8.2.1985. This television was opened in the presence of Smt. Mehrunnissa and her brother Jaberullah on 10.2.1985 and on search thereof six gold biscuits of foreign origin valued at Rs. 1,44,550/- were recovered.

5. This was followed by the statements of Jaberullah wherein he stated that when Abdul Ghafoor came to India last, he asked him to sell the foreign goods sent by Abdul Ghafoor and hand over the sale proceeds to his mother. He further stated that even the goods seized from his residence were all sent by his brother-in-law Abdul Ghafoor from Dubai which were cleared through Air Cargo by two travellers and that some of these goods had already been sold to various parties. He also confessed that some payments were made by him to parties under the instructions of Abdul Ghafoor and that 33 foreign marked gold biscuits were received out of which 28 biscuits were sold by him for Rs. 6,52,350/- at VPR Jewellery Shop, Kumbakonam and at ARC Jewellery Shop, Big Street, Mauram.

6. We may notice at this stage that in the grounds there is a reference to the words "you" and "him" probably meaning thereby some other persons which reference perhaps is to the detenu. He further stated that six gold biscuits were left concealed in the television. In his further statement on 11.2.1985 he admitted that he has been helping his brother-in-law Abdul Ghafoor in taking out the gold biscuits concealed in textiles brought by the travellers and selling the same besides making payment.

7. The detenu in her statement is also purported to have admitted that her son, Abdul Ghafoor on his last visit to India had asked his brother-in-law to sell the foreign goods and had over the sale proceeds to her. She further stated that 28 gold biscuits were sold by Jaberullah and the sale proceeds thereof were handed over to her and she made the payment to persons as per sheet 50 seized from her residence and that this payment was made on the instructions of her son, Abdul Ghafoor. She is also said to have stated that the remaining six biscuits were left concealed in T.V. This statement was corroborated by her daughter-in-law, Mehrunnissa.

8. The detenu was arrested and was remanded to judicial custody. The recovery of foreign goods has been confirmed by her in her statement dated 22.2.1985. In that statement she also admitted that for the last 2 or 3 years she has been making payment to persons in India as per instructions of Abdul Ghafoor and that instructions were sent through letters, telegrams and telephone. About payments she is alleged to have stated that these were made to various parties with the assistance of Jaberullah.

9. It will be sent that in the list of payments made to various parties, the detenu is involved by name in making the following payments only :-

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  Item              Date                     Amount
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 28                Jan. 1980                Rs. 13,000/-
 39                Nil                      Rs. 50,000/-
 44(c)             Dec. 1984                Rs.  6,500/-
 44(o)             Nil                      Rs.  2,000/-
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                                            Rs. 71,500/-
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The above figures appended to the grounds would show that these are the only payments made by detenu and there is no evidence that these payments are or could be on account of clandestine trade. Most of the payments shown in the grounds are by Jaberullah and some are shown by persons whose names are not mentioned. Admittedly, the payments have been made through cheque also by Mehrunnissa from her own bank account. It is actually on the basis of the material that the detaining authority has arrived at subjective satisfaction and ordered her detention. We need not give any further details.

10. We heard Mr. S. Padmanabhan, learned counsel for the petitioner, for almost two hours in respect of his first contention that the petitioner has been deprived of making an affective representation as a result of violation of Article 22(5) by the detaining authority by not supplying her all the relevant documents with in the statutory period and by supplying some relevant documents belatedly without any cogent explanation. It may be of some use to notice that in their return the respondents have stated that these documents, which were supplied to her belatedly, were not supplied earlier as these were not relied upon by the detaining authority. By this submission we take it that these were not placed before the detaining authority. These documents are the statements of the proprietor of VPR Jewellery shop, his sons, an employee and also the proprietor of ARC Jewellery shop.

11. We were taken through those statements by the learned counsel for the detenu and we have noticed that the involvement of the detenu is not specifically made mentioned of. All that is stated is that three gold biscuits were sold to VPR Jewellery shop by Jaberullah accompanied by two ladies. A bare perusal of these statements would show that these documents are important at least for the determination of the question of involvement of the detenu. If the stand of the respondents that these documents were not relied upon is correct, then we take it that these were not placed before the detaining authority. Non-placing of these documents before the detaining authority, in view of the nature the documents, by itself would be sufficient to vitiate the detention order of the reason that it placed before the detaining authority, these were bound to affect his mind one way or the other. This we say on the assumption that these documents were considered irrelevant and, therefore, it was not found necessary to place them before the detaining authority.

12. But assuming that these were placed before the detaining authority then the question that arises for determination is, has the detaining authority really considered the effect thereof while arriving at the subjective satisfaction ? On perusal of the statements of these persons, we find that the satisfaction arrived at by them detaining authority is from all known canone of justice casual and mechanical. It will be seen that there is hardly any evidence to the effect that the detenu was ever in picture in the sale or recovery of the sale proceeds of the foreign gold. Considering the illiteracy, the old age, ailment and other circumstances of the detenu, it is reasonable to infer that she could not be even remotely said to have any knowledge as to what was happening. One of such statements is that of one Kunhammed supposed to be a recipient of Rs. 10,000/- from the detenu but his statement undisputably has not been supplied to the detenu.

13. That being the state of affairs, we became a little more curious and requested Mr. R. K. Anand, learned counsel for the respondents to explain this position. Mr. Anand vehemently urged that the subjective satisfaction arrived at by the detaining authority cannot be made a subject-matter of judicial review on the basis of sufficiency insufficiency of material. We lost no time to accept the contention. The main question, however, still survives as to whether the subjective satisfaction arrived by the detaining authority could be reasonably arrived at on the basis of this material. This is an area in detention matters which does call for judicial scrutiny. After going through the entire material, we are of the view that there is no reasonable basis for drawing an inference from this material about the involvement of the detenu. She cannot even remotely be said to have any knowledge as to what was happening. She seems to be a victim of circumstances. On the basis of this materials one may have to say somethings against Jaberullah or ever Mehrunnissa but to attribute to the detenu that she was herself involved in this activity would be not only unreasonable but also unjust and unjustified.

14. Mr. Anand next referred to the letters addressed to the detenu by her son, Abdul Ghafoor and also invited our attention to a letter purported to have been addressed by the detenu to her son Abdul Ghafoor and recovered from her residence. His contention is that these letters show that it was the detenu who under instructions from Abdul Ghafoor was making payments. About the letter which she is supposed to have written to her son, Abdul Ghafoor, we are not able to understand as to how a letter which was supposed to have gone to Dubai was recovered from her residence. It is not signed. In any case, there is no doubt that the letters seem to have been addressed to the detenu by her son but that seems to be the modus operandi of the real culprits as all the letters are addressed in her name and are received in her name. There is nothing to indicate that she has ever read them or was aware of the contents thereof. Surely, keeping in view her illiteracy which fact is not disputed, it cannot be said that she was maintaining an account, making payments to various parties in various forms, sending telegrams and talking to her son at Dubai on telephone. None of these aspects has been taken into consideration by the detaining authority.

15. In that view of the matter, we are of the opinion that the order of detention suffers from the vice of non-application of mind. This is particularly so in view of the fact that some of the most relevant documents were not considered as they were characterised as irrelevant. We are of the firm opinion that there is absolutely no justification in raising an inference about the involvement of the detenu on the basis of this material. We, therefore, accept this petition, quash the impugned detention order and direct that the detenu be released forthwith.