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1983 Supreme(Bom) 15
BOMBAY HIGH COURT
Kurdukar and Parekh, JJ.
Saad Mohamed Ali Abdul Hussain - Appellant
versus
The State of Maharashtra and others - Respondent
Criminal Writ Petition No. 801 of 1982
Decided on 20th January, 1983
Cr. Application No. 1269 of 1981 decided on 14th October, 1981.
For the Petitioner: Mr. L. R. Chari with Mr. M. F. Saldhana and Mr. K. S. Gadagkar, Advocates, instructed by M/s.Bilawala Co.
For the Respondents: Mr. B. D. Kamble and Mr. M. R. Kotwal, Public Prosecutors.
Saad Mohamed Ali Abdul Hussain Vs. The State of Maharashtra and others
Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)-Detaining authority when deemed not to have considered the record in case translated copies of documents in arabic are not part thereof-
Facts-
The Petitioner is an Iraqi national. He came to Bombay for the first time on 18th March, 1982 on a pleasure trip for about 10 days. He left Bombay on 28th March, 1982. He again came 10 Bombay on 8th April. 1982. During this journey he lost a bag and was given a landing certificate at the Bombay Airport. He took a taxi and went to Colaba looking for accommodation. At this time he met an Arab Mr. Abdul Abbas Ali Both of them then went to a local hotel. There took their break-fast then both of them went to Hotel Natraj to check the arrival of another Arab who was Mr. Abbas Ali's friend. The receptionist told that one Mr. Sahb Mohomed Husain an Iraqi national and one Mohamed Gulam Husain a Kuwait national were occupying room No. 608. Then both of them sent to that room. On that day the customs authorities raided that room and detained the petitioner for interrogation. He was then but under arrest.
Procedural facts-
The petitioner was then placed before the Magistrate and was remanded to custody from time to time. On 12th July, 1982 he was released on bail. On 15th September, 1982 he was served with the impugned order dated 14th September, 1982 along with the grounds in support thereof and he was detained in pursuance of that order.
On or about 19th October, 1982 he made a representation to the State Government and to the Central Government through Jail authorities. He also made a representation to the advisory Board through his advocate in which he requested the Advisory Board to be given a hearing.
The State Government rejected his representations vide letters dated 5th November, 1982 and 9th November, 1982 of the State and Central Governments respectively the Advisory Board also vide their letter dated 12th November, 1982 refuted the contentions canvassed by the advocate of the Petitioner on 24th November, 1982, the State Government confirmed the order passed by the Advisory Board.
The Petitioner then filed the present writ petition for habeas corpus in the High Court challenging the detentions. In the writ petition the main questions came up for consideration were.
Questions-
Whether the detaining authority would be deemed to have considered the record which contained some documents in Arabic Language and these documents were not translated in English? - (No)-
Whether averments made in affidavit in reply containing conflicting and contradicting statements destroy respondents case? - (Yes)
Whether the two cases refined assisted the respondents? - (No)
Decision-
The High Court quashed the order dated 14th September, 1982 and allowed the writ petition. The Petitioner was directed to be set at liberty if not otherwise required and leave to Appeal to Supreme Court was refused.
Reasons-
1. Now, considering the rival contentions on this aspect of the matter, it may be stated that the averments made in paragraphs 12 and 26 are to the effect that the detaining authority had considered the "record" and/or the "entire material" placed before the detaining authority. Then again, it is an admitted position that documents in Arabic were placed before the detaining authority. It is also an admitted position that the detaining authority did not and does not know Arabic. All this must make it obvious that the detaining authority could never have considered the "record" placed before it, or considered the "entire- material" placed before it. The averments made in the affidavit that the detaining authority had considered the record and/or the "entire material" cannot be accepted. (Para 13)
2. Averments contained in paragraph 23 of the affidavit in-reply do not really answer the question. But even if it is assumed that the averments made in paragraph 13 assist the respondents to some extent, there can be little doubt that the averments in paragraph, 13 of the said affidavit are contradictory to the averments made in paragraphs 12 and 26 of the affidavit in reply. It has been, repeatedly held that these affidavits are in the nature of evidence, and if conflicting and contradicting statements are made in the affidavit, then this must not only detract from the respondents case but must prove wholly destructive thereof. The affidavit-in-reply filed in this matter has been so indifferently drawn up and made that it can hardly assist the respondents in any manner. (Para 14)
3. As regards the two cases cited by Counsel for the respondents are concerned the contention of the detenus in each of the said cases was that certain relevant material was not placed before the detaining authority before the passing of the order and it was in this light" that the Courts had held that if such was the grievance of the detenu, then the detenu must establish that such of the documents could have had a bearing on the decision of the detaining authority and if he could do this, the order would stand vitiated. The facts in the present case are wholly different. In this case, the material was placed before the detaining authority, but the detaining authority could not appreciate the material because it was in Arabic, and not only this but in the affidavit-in-reply, the detaining authority made bold to aver, although falsely, that it had considered all the material placed before it. The ratio of the said two cases could hence be of no assistance to the respondents. (Para 15)
Parekh, J. - By this writ petition for a writ of Habeas Corpus, the petitioner challenges an order dated 14th September, 1982 passed by the Government of Maharashtra in exercise of its powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (52 of 1974), with a view to preventing the petitioner from indulging in smuggling goods.
2. The petitioner's case is that he is an Iraqi national. That he had come to Bombay for the first time on 18th March, 1982 on a pleasure trip for about 10 days. That he left Bombay on 28th March, 1982. That on his return to Kuwait, he contacted the Directors of Kuwaitian Company and acquainted them with the possibilities of procuring cheap labour from India. That his company, therefore, depicted him to return to Bombay and negotiate procurement of Indian labour. That he hence came to Bombay on the 8th April, 1982 by Kuwait Airways Flight No. KU 300. That during this journey, he lost a bag and was given a landing certificate bearing No. 19736 at the Bombay Airport. In this landing certificate, his bag was described as a brown coloured bag which carried a tag. That he had reported this loss to the Customs authorities. That on his arrival in Bombay, he took a taxi and went to Colaba looking for accommodation. That at this time, he met one Arab gentleman who gave his name as Abdul Abbas Ali. That he then inquired of the said Abdul as to where he the petitioner, could secure accommodation. That he, the petitioner, also told the said Abdul Abbas Ali about his having lost his bag during the travel and that he would hence have to do some shopping having lost all his things. That the said Abdul Abbas Ali then took him to a local hotel where they had break-fast. That during the course of conversation, the said Abdul Abbas Ali informed the petitioner that his (the said, Abdul Ali's friend was to come from Kuwait to Bombay and by then must have checked in at Hotel Natraj and asked the petitioner to accompany him. That since the petitioner had not checked in at any hotel, nor had he any baggage, he agreed to accompany the said Abdul Abbas Ali. That both of them went to Hotel Natraj and reached there about 11.00 a.m. That on reaching Hotel Natraj, the said Abdul Abbas Ali went to the receptionist and enquired if any Iraqi national had checked into the hotel on the morning of 8th April, 1982. That thereupon the said Abdul Abbas Ali was told that one Sahb Mohomed Hussain, an Iraqi national and one Mohamed Gulam Hussain, a national of Kuwait had checked in at the hotel and were occupying Room No. 608. That they then went to the said room. That on that day, the Customs raided the said room No. 608 and the petitioner was detained for interrogation. He was then put under arrest, produced before the Magistrate and was remanded to custody and thereafter from time to time. That on 12th July, 1982, he was released on bail. That on the 15th September, 1982, the impugned order dated 14th September, 1982 was served on him along with the grounds in support thereof and he, the petitioner, was detained in pursuance thereof. That on or about 19th October, 1982 he made a representation to the State Government and to the Central Government. That the representations to the said two authorities were sent through jail. That he the petitioner, also made a representation to the Advisory Bord through his advocate and in this representation, he requested the Advisory Board that he, "the petitioner, he given a hearing, and at the time of the hearing, an interpreter who knew Arabic be kept present, since he, the petitioner, did not know English, and further that the articles and things that were seized during the said raid in room No. 608 of Hotel Natraj be produced at the hearing. That by a letter dated 21st October, 1982, the Advisory Board informed him that arrangements were made to keep an interpreter who knew Arabic present at the time of the hearing. Tha
