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1985 Supreme(Bom) 330
BOMBAY HIGH COURT
R. A. JAHAGIRDAR AND S. M. DAUD, JJ.
Abdul Rehman, Petitioner
Versus
Union of India and others, Respondents.
Criminal Writ Petn. No.651 of 1985
Decided on : 3-12-1985, 4 -12 -1985.
M.G. Karmali with S.S. Parkar, for Petitioner; R.M. Agarwal with K.C. Sidnwa, (for Nos.1 and 2) J.A. Barday and Public Prosecutor (for Nos.3 and 4), for Respondents.
The Detaining Authority is not obligated to investigate the truth or otherwise of the statements made by the witnesses, including the petitioner, and the non-supply of the documents referred to in the statements of the petitioner and a co-detenu does not vitiate the order of detention.
Headnote:
COFEPOSA ACT - Grounds of Detention - Communication of Grounds - Documents Relied Upon - Duty of Detaining Authority - Non-Supply of Documents - Effect - Right of Representation - Non-Application of Mind - Compensatory Payments - Tamil Portion of Document Not Translated - Casual Approach of Detaining Authority.
Fact of the Case:
The petitioner, Shamshuddin Mohomed Saleh, was detained under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act) on the ground that he was indulging in making compensatory payments to persons in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (FERA). The petitioner challenged the order of detention on various grounds, including non-communication of grounds, non-application of mind, and casual approach of the Detaining Authority.
Finding of the Court:
The Court held that the Detaining Authority was not obligated to investigate the truth or otherwise of the statements made by the witnesses, including the petitioner, and that the non-supply of the documents referred to in the statements of the petitioner and a co-detenu did not vitiate the order of detention. The Court also held that the Detaining Authority was not required to supply copies of all documents mentioned in the grounds of detention, but only those documents which had influenced the formation of the subjective satisfaction of the Detaining Authority. The Court further held that the Detaining Authority had not mischaracterized the transactions indulged in by the petitioner as compensatory payments, and that the Detaining Authority had considered the Tamil portion of document No. 13, even though it was not translated into English.
Issues: 1. Whether the Detaining Authority was obligated to investigate the truth or otherwise of the statements made by the witnesses, including the petitioner? 2. Whether the non-supply of the documents referred to in the statements of the petitioner and a co-detenu vitiated the order of detention? 3. Whether the Detaining Authority was required to supply copies of all documents mentioned in the grounds of detention? 4. Whether the Detaining Authority had mischaracterized the transactions indulged in by the petitioner as compensatory payments? 5. Whether the Detaining Authority had considered the Tamil portion of document No. 13, even though it was not translated into English?
Ratio Decidendi: 1. The Detaining Authority is not obligated to investigate the truth or otherwise of the statements made by the witnesses, including the petitioner. 2. The non-supply of the documents referred to in the statements of the petitioner and a co-detenu does not vitiate the order of detention. 3. The Detaining Authority is not required to supply copies of all documents mentioned in the grounds of detention, but only those documents which had influenced the formation of the subjective satisfaction of the Detaining Authority. 4. The Detaining Authority had not mischaracterized the transactions indulged in by the petitioner as compensatory payments. 5. The Detaining Authority had considered the Tamil portion of document No. 13, even though it was not translated into English.
Final Decision: The Court allowed the petition and set aside the order of detention passed by the Joint Secretary to the Government of India, Ministry of Finance, under S. 3(1) of the COFEPOSA Act against Shamshuddin Mohomed Saleh. The Court directed that the detenu be set at liberty forthwith.
R.A. JAHAG1RDAR, J.:- This petition under Art. 226 of the Constitution for the issue of a writ of habeas corpus has been filed on behalf of one Shamshuddin Mohomed Saleh (hereinafter referred to as "the detenu"). He has been detained by an order passed by the Joint Secretary, Government of India, Ministry of Finance, on 1st Aug. 1985 under S. 3(1) or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the "COFEPOSA Act"). Along with the order of detention he was supplied with the grounds of detention and copies of the documents which were considered and relied upon by the Detaining Authority. The list of these documents was attached to the grounds of detention.
2. Before proceeding to consider the challenge made by the detenu to the order of detention, it will be useful to note briefly the facts leading to the detention. They are to be gathered from the grounds of detention dt. 1st Aug. 1985. It has been mentioned therein that on 29th June 1985 officers of the Directorate of Revenue Intelligence, Bombay, searched the business premises of Messrs Tip Top Agencies and Exports situated in Ebrahim Manor Building on S. V. P. Road, Bombay. Several documents and Indian currency amounting to Rs. 9210/- were seized during that search when the detenu and one Moosa, both partners of the firm mentioned above, were present in the premises.
3. The detenu made a statement on 29th June 1985 which was recorded by the officers of the Directorate of Revenue Intelligence under S. 108 of the Customs Act. In that statement he has given details of the transactions of making payments and receiving payments to and from the several persons at the instance of one Mohomed of Bombay. These transactions were of the magnitude of Rs. 5 to 7 lacs per week. He has also stated that during the period of the previous four months preceding the date of the statement, the transactions indulged in by him were to the extent of Rs. 75 lacs to Rs. 80 lacs.
4. The detenu in his aforesaid statement explained some of the documents which had been seized from his premises. In the said statement he has mentioned that during the search of his office-cum-residential premises, the Customs Officers had seized several documents out of which a bunch of loose sheets containing pages 1 to 14 disclosed Havala transactions. The grounds of detention further proceeded to state that a statement of Moosa, the other partner of the firm, was also recorded on 29th June 1985 by the Customs Officers under S. 108 of the Customs Act. In para 6 of the grounds of detention, the statement made by Moosa has been summarised and in particular, it has been stated as follows :-
"He stated that the documents at page Nos. 1, 2, 3, 5, 7 and 13 of the loose papers seized from their office-cum-residential premises were in the handwriting of Shamshuddin (the detenu) and related to illegal and unaccounted money."
Reference has also been made in the grounds of detention to the statement made by another person called Rashid Abdul Kader also on 29th June 1985 and the sum and substance of his statement has been mentioned in para 8 of the grounds of detention. Thereafter the Detaining Authority proceeds to state as follows : -
"From the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that you, the aforesaid Shamshuddin Mohomed Saleh have been indulging in making compensatory payments to persons in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973......I am convinced that in view of the material referred to hereinabove, it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources."
The Detaining Authority has mentioned that he had considered and relied upon the documents and material me
