Back
SUPREME COURT OF INDIA
V.D. TULZAPURKAR AND R.B. MISRA, JJ.
Ibrahim Ahmad Batti, Petitioner
Versus
State of Gujarat and others, Respondents.
Writ Petn. (Cri) No. 1077 of 1982
Decided on 13-10-1982.
Advocates appeared
Mr. Ram Jethmalani, Sr. Advocate, M/s. P. H. Parekh, Bhaskarbhai Mehta, C. A. Shah and J. M. Parekh, Advocate with him, for Petitioner; Mr. D. V. Patel, Sr. Advocate, Mr. R. N. Poddar, Advocate with him, for the State; Mr. Ashwani Kumar and Miss A Subhasini, Advocates, for Respondent-Union of India
Held in the first place, on admitted facts in the case, upon revocation of the earlier detention order on 1st July, 1982 there was no urgency to issue the impugned order of detention on the same day or serve it on the detenu on the following day, the detenu was in judicial custody then in other two cases, one under the Arms Act and the other under the Foreigners Act and no bail having been granted to him there was no fear of his absconding from Ahmedabad; there being no urgency the detaining authority could have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office noting does not give particulars of how many Urdu translators were put on the job except vaguely stating handful translators were available. Thirdly the office noting clearly suggests that the translation job was entrusted to Urdu translators belonging to a particular community who observed Ramzan fast; instead of restricting the choice in this manner additional Urdu translators who bad nothing to do with the observance of Ramzan fasts could have been put on the job, but nothing is indicated whether and if so what efforts were made in that behalf. It is difficult to swallow the proposition that the State Government (which is detaining authority here) with all its power and resources could not find requisite number of qualified persons to do that job so as to make Urdu translations of the concerned documents and statements available to the detenu within the normal period of five days. With the previous detention order having been vitiated on the very ground, greater vigilance and expedition was expected from the detaining authority. In all the facts and circumstances it is impossible to hold that exceptional circumstances obtained in the case justifying the delay and as such the same constitutes a preach of the constitutional as well as the legislative mandate. (Para 14)
(ii) Constitution of India 1950-Article 22(5)-Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947-Section 3(1) and section 3(3)-Delay in supply of statements and documents to the detenu by detaining authority-Exceptional circumstances not communicated to detenu -Whether detaining authority duty bound to inform the detenu about the existence of exceptional circumstance and what they were? - (Yes)-Result-Detention order quashed.
Held it is true that neither Article 22(5) nor does the Conservation of Foreign Exchange and Prevention of Smuggling Activities contain any provision which casts such a duty upon the detaining authority in express terms; it is also true that the Court will of course go into and satisfy itself about these matters when any issue in that behalf is raised before it. But the question is whether such a duty is cast on the detaining authority by necessary implication? Does it or does it not flaw from the right conferred upon the detenu to make representation against his detention? In this behalf it cannot be disputed that under the scheme of the Conservation of Foreign Exchange and Prevention of Smuggling Activities against his detention the detenu has a right to make a representation to an authority which is superior to the detaining authority (e.g. to the State Government when the detaining authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government) as well as to the Advisory Board and such representation against him detention can be on merits of the grounds of detention as also for failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the Advisory Board on either court he is entitled to have his detention revoked or quashed. We have already indicated above that one of such safeguards is that unless exceptional circumstances really obtain in a case the delay in supply of grounds of detention and/or the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal to the continued detention of the detenu. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occurred in the supply of requisite material to him was not justified because exceptional circumstances did not exist or those put forward were unreal or invalid. Obviously, the detenu will not be in a position to do so if the alleged exceptional circumstances are not communicated to him. In our view, therefore, a duty is to inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying grounds of detention and/or documents and statements incorporated therein arises by necessary implication and flows from the right which conferred upon the detenu to make representation against his detention. In the instance case, for instance, if the alleged exceptional circumstances were communicated to be detenu at the time of the delayed supply of the concerned documents and statements Urdu language he could have satisfied the superior authority or the Advisory Board the exceptional circumstances did not really obtain in the case and the delay had vitiate his detention. In other, words what he has done before the Court now; he could have done before the superior authorities or the Advisory Board. For these reasons we approve of the view ultimately taken by the Patna High Court in the two decisions cited above, particularly the decision in Bishwa Mohan Kumar Sinhas case (supra) where both the aspects have been dealt with. In our view, therefore, the impugned failure in this case constitutes another breach of the safeguard contained in Article 22(5) read with section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities and vitiates the continued detention of the petitioner. (Para 15)
JUDGMENT
TULZAPURKAR, J. :— By this petition Ibrahim Ahmad Batti, the detenu herein, is seeking to challenge the detention order dated 1st July, 1982 issued by the respondent No. 1 (State of Gujarat) under S. 3 (1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA) and praying for a writ of habeas corpus directing his release after quashing the game.
2. On 15th April, 1982, the Custom Officers raided Bungalow No. 3, Sweta Park Society, Bhuderpura, Ambawadi. Ahmedabad, allegedly belonging to the petitioner but standing benami in the name of Rekhaben Champaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukh Prabhudas Sharma contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, video cassette recorder, colour T.V., synthetic fabrics, crockery. etc. of considerable value and Indian currency of Rs. 72,766 were recovered, the said gold and other articles were seized under the reasonable belief that the same were smuggled goods liable to confiscation under the Customs Act, 1962. This seizure was followed by recording of confessional statements of the petitioner and his co-conspirators. During the follow up action certain other premises were searched and further contraband was seized. By an order. dated 19th April, 1982 issued by the respondent No. 1 under S. 3 (1) of the COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with a view to preventing. him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated. 23rd April, 1982 along with copies of statements and documents relied upon by the detaining. authority were served on the petitioner. The petitioner made a representation against the said order of detention, which was considered by the Advisory Board, who opined thus :
"..............although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under S. 3 (1) of the Act, the subsequent failure on the part of the detaining authority to supply the translations in Urdu of the grounds and documents relied upon was a clear violation of the constitutional mandate of Art. 22 (5) so as to vitiate the order of detention and hence, in our view, there exists no sufficient cause for the continued detention of the said detenu."
Following the above opinion. of the Advisory Board, the respondent No. 1 by its order dated 1st of July, 1982 revoked the detention of the petitioner under S. 8 (f) of the COFEPOSA and directed him to be released forthwith, unless he was required to be retained in custody under the orders of any competent Court of law. However, on the same day i.e. 1st of July, 1982, the respondent No. 1 issued the impugned order of detention against the petitioner under S. 3 (1) of the COFEPOSA and, served it on him on 2nd July, 1982 whilst he was in judicial custody under Courts order in two cases, one under the Arms Act and the other under the Foreigners Act pending, against him and after taking him in custody again tinder. the impugned order detained him in Ahmedabad Central Prison under the COFEPOSA. This detention was effected "with a view to preventing him from smuggling goods and engaging himself in transporting smuggled goods and keeping smuggled goods". Grounds of detention running into 32 typed pages in English as well as translated in Urdu, together with copies of all the statements and documents, referred to and relied upon in the grounds, in original language were served upon the petitioner on 7th July, 1982. Urdu translations of the bulk of the statements and documents referred to and relied upon in the grounds were supplied to the petitioner on 15th July, 1982, though such supply did not include. translations of all the statements and documents relied upon by the detaining authority. The petitioners representatio
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
