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