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IN THE HIGH COURT OF BOMBAY
Sawant P.B. Kardukar, S.P.,JJ.
Mohd. HussaIn Ansari.... Petitioner.
Versus
Secretary, Govt. Of Maharashtra, Home Department, Mantralaya, Bombay and others .... Respondents.
Cri. Appln. No 2038 of 198l decided on 6-2-1982.
Advocate Appeared:
For petitioner - G. 1, Merchant.
For State-M, R. Kotwal, public Prosecutor.
Petitioner challenged his detention under COFEPOSA Act, 1974. Petitioner contended that the detention authority considered extraneous and irrelevant material, petitioner was not supplied with relevant documents, petitioner was not informed of his right to make a representation and be heard before the Advisory Board, and the State Government failed to forward the report to the Central Government within 10 days. The Court held that the detention authority did not consider extraneous material, petitioner was not entitled to all the pages of the passport, petitioner was not entitled to the letter and card referred to in the panchanama, the petitioner was not entitled to copies of documents merely referred to in the grounds of detention, petitioner was not informed of his right to make a representation and be heard before the Advisory Board, but this did not vitiate the detention order, and the report was sent to the Central Government within 10 days. The petition was dismissed.
Fact of the Case:
Petitioner challenged his detention under COFEPOSA Act, 1974. Petitioner contended that the detention authority considered extraneous and irrelevant material, petitioner was not supplied with relevant documents, petitioner was not informed of his right to make a representation and be heard before the Advisory Board, and the State Government failed to forward the report to the Central Government within 10 days.
Finding of the Court:
The Court held that the detention authority did not consider extraneous material, petitioner was not entitled to all the pages of the passport, petitioner was not entitled to the letter and card referred to in the panchanama, the petitioner was not entitled to copies of documents merely referred to in the grounds of detention, petitioner was not informed of his right to make a representation and be heard before the Advisory Board, but this did not vitiate the detention order, and the report was sent to the Central Government within 10 days.
Issues: 1. Whether the detention authority considered extraneous and irrelevant material? 2. Whether the petitioner was supplied with relevant documents? 3. Whether the petitioner was informed of his right to make a representation and be heard before the Advisory Board? 4. Whether the State Government failed to forward the report to the Central Government within 10 days?
Ratio Decidendi: 1. The Court held that the detention authority did not consider extraneous material because the facts stated in sub-paragraphs (b) to (d) of paragraph 1 of the grounds of detention were either supportive of or incidental to the material fact in sub-para (a). 2. The Court held that the petitioner was not entitled to all the pages of the passport because the detaining authority had not relied upon or taken into consideration the passport at all while passing the detention order, except the three pages thereof to bear out the truth of the admission made by the petitioner. 3. The Court held that the petitioner was not entitled to the letter and card referred to in the panchanama because the detaining authority was not bound to supply to the petitioner the other pages of the passport. 4. The Court held that the petitioner was not entitled to copies of documents merely referred to in the grounds of detention because every failure to furnish copy of a document to which reference has been made in the grounds of detention is not an infringement of Article 22(5) of the Constitution. 5. The Court held that the petitioner was not informed of his right to make a representation and be heard before the Advisory Board, but this did not vitiate the detention order because the provisions of Article 22(5) do not spell out the same. 6. The Court held that the report was sent to the Central Government within 10 days because an order cannot be regarded as anything more than a provisional or a tentative one till it is communicated and, therefore, necessarily the order cannot be said to have been passed or made till that point of time.
Final Decision: The petition was dismissed.
Sawant J.-By this habeas corpus petition filed under Article 226 of the Constitution, the petitioner has challenged his detention under order dated 5-10-1981 issued by the Slate Government in exercise of the powers under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act)
2. Shri Merchant, the learned counsel for the petitioner has raised the following four contentions in support of the said challenge viz. (1) that the detaining authority has taken into consideration extraneous and irrele-vant material lor coming to the conclusion that the petitioner had indulged, and was indulging, in smuggling of goods as stated in the grounds supporting the detention; (2) that the petitioner was not supplied with the relevant documents to enable him to make an effective representation against the detention order and thus was deprived of an opportunity to make such representation; (3) that the detaining authority had not communicated to the petitioner at the time of service of the detention order upon him, of his right to make a representation as well as of the right to be heard before the Advisory Board and (4) the State Government had not forwarded to Che Central Government its report in respect of the detention order within 10 days and had thus committed a. breach of the mandatory provisions of sub-section.(2) of section 3 of the Act.
3. In support of the first contention viz. that the detaining authority had taken into consideration extraneous and irrelevant material before coming to its conclusion that the petitioner had smuggled gold and was indulging in smuggling gold and it was necessary to prevent him from indulging in such activities in future, Shn Merchant relied upon the fact that in paragraph 1 of the grounds of detention supplied along with the detention order, the detaining authority has mentioned four facts as detailed in sub-paragraphs (a) to (d). While he did not quarrel with the contents of sub-para (a), according to him, the contents of sub-paras (b),-(c) and (d) had no relevance to the conclusion that the petitioner had intentionally smuggled gold into India. In sub-para (b) it is stated that foreign currency viz. US 780 and UAE Dirhams 145 in addition to dutiable goods valued at Rs. 6,546 were recovered by the Customs Officers when the petitioner was searched. In sub-para (c) It is stated that-the petitioner in his. statement under section 198 of the Customs Act had,, among other things, stated that: he was having a tea-stall and a barber shop in Abu.Dhabi from which he earned about 4000 Dirhams-per month and that on 13-6-1981 he had arrived; from Aba Dhabi by Air India Flight Al-908 and that when the Customs Officer in plain clothes questioned him as to whether he was carrying any contraband such as gold, wrist watches, etc.,. in his baggage or on his person, he replied in the negative. It is also further stated there that the petitioner admitted the recovery of total six gold biscuits weighing 10 tolas each, from Mm as well as the foreign currency mentioned', in sub-para (b).. Sub-para (d) states that the petitioner in, his statement meaning the statement under section 108 of the Customs Act, has-further stated that the-passport in which he arrived in India was a bogus one and that it was not his passport although the photograph pasted on the passport was his. It is also stated in the sub-para that the petitioner deposed that the gold which he smuggled was purchased by him for 35,000 Dirhams and that it was purchased out of his own savings as well as with the help of the amount borrowed from four persons ami that the said amount was to be returned to the relatives in India after the gold biscuits were sold at profit. The sub-para goes on to state that the petitioner admitted that he deliberately smuggled the gold into India although be was aware that bringing gold into India was an offence and was punishable un
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