STATE OF KERALA v. SHANTILAL CHOK — 1988 DIGILAW 212 (KER)

Judgment :- 1. In O.P. No. 1755 of 1982 the petitioner prays to call for the records relating to the proceedings of the 2nd respondent, the State of Kerala, leading to the order of detention against the petitioner and to issue a writ of mandamus or any other writ or order or direction quashing the order of detention dated 18tb April. 1980 passed against the petitioner by respondents 1 and 2 and prohibit them from executing the said order. It is alleged in the original petition that the 1st respondent had issued the detention order dated 18th April, 1980 against the petitioner as well as against Yogesh Shantilal Choksi who is the respondent in Writ Appeal 305 of 1982 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act') arising out of one and the same incident, and that the aforesaid Yogesh Shantilal Choksi filed O.P. No. 5552 of 1981 and this Court was pleased to quash and set aside the order of detention passed against the said Choksi as illegal. The above writ appeal has been fried by the State of Kerala, represented by the Chief Secretary, and Special Secretary, Home Department, Secretariat, Trivandrum who are the respondents in the O. P. 5552 of 1981 challenging the order passed by a learned single judge of this Court quashing and setting aside the order of detention passed against Choksi who is the petitioner in O.P. No. 5552 of 1981. Since the writ appeal arises out of the same incident and the points raised in both the O. P. and the writ appeal are the same, both are disposed of by a common judgment. 2. The facts leading to the issue of the order of detention impugned in these cases may be stated in brief as follows: On 2nd November 1979 when the petitioners were proceeding to Trivandrum along with one Razak and one Mohamed Husain in a taxi car, they were stopped by the Customs Officials at Aroor; and on a search they found in the car. 186 kilograms of silver ornaments and articles. The car along with the silver ornaments as well as the occupants including the petitioners were taken to the Customs House at Ernakulam and the ornaments were seized under a Panchanama. 186 kilograms of silver ornaments and articles. The car along with the silver ornaments as well as the occupants including the petitioners were taken to the Customs House at Ernakulam and the ornaments were seized under a Panchanama. The petitioners and others were questioned and the Customs Officers took confessional statements from all of therm to the effect that the said ornaments were meant for export to Dubai from Trivandrum Air Port. The statement of the petitioner in O. P. 1755 of 1982 was to the effect that the ornaments in the car were taken to Trivandrum for export to Dubai under the guise of personal baggage of passengers going to Dubai. The petitioners and other occupants of the car were produced before the Judicial Magistrate for Economic Offences on 8th November, 1979 and were later ordered to be released on bail. After his release on bail the petitioner informed the Collector of Customs, Cochin that his statement was taken under threat and coercion. 3. The Collector of Central Excise thereafter served a show cause notice dated 7th April, 1980 on the petitioner and eight others directing them to show cause why action should not be taken against them under the provisions of the Customs Act in respect of the seizure of the said silver ornaments. The allegations in brief as set out in the show cause notice were to the effect that the petitioners in the writ petitions and others were carrying the said articles in an attempt to export without obtaining the necessary Government approval and that consequently the said silver items were liable to confiscation and that the petitioners were liable to be penalised for the violation of the provisions of the Customs Act. The petitioners sent replies denying the allegations. In the said replies the petitioners reiterated their statements that the confession statements were obtained by coercion and under duress. It was also stated therein that since the silver items in question were found at a place about 110 miles away from Trivandrum Air Port, by no stretch of imagination it could be suggested that there was an attempt to export the silver items through Trivandrum Air Port. It was also stated that an amount of Rs. 25,000/-was seized from him and that it was taken by him to buy handicrafts and ivory goods at Trivandrum. It was also stated that an amount of Rs. 25,000/-was seized from him and that it was taken by him to buy handicrafts and ivory goods at Trivandrum. It was further stated that because of the restrictions on the export of the silver articles and items he was concentrating on local market for the sale of jewellery and articles and Sri. Choksi the respondent in W. A. No. 305 of 1982 had accompanied the petitioner with similar goods as be was having necessary experience about the local market. The Collector by order dated 7th August 1981 returned the sum of Rs. 25,000/-seized from the petitioner, holding that no violation of law has been proved in respect of the currency. However, the Collector was pleased to confiscate all the silver jewellery and articles weighing 260 Kgs. and also 95 Dirhams of Q.A.B. currency taken charge of by the Customs from the car on the 5th November, 1979 and imposed a penalty of Rs. 50,000/-on the petitioner for violation of the provisions of the Customs Act under S.114 of the Customs Act. The petitioner had preferred an appeal against the said order to the Central Board of Excise and Customs and the order passed by the Collector of Customs imposing penalty, was set aside holding that no case of attempt of smuggling was established and the case made out by the Customs Officials at best only amounted to preparation. The petitioner further stated that in the first week of March, 1982 the petitioner contacted bis advocate in Bombay in connection with the hearing of the appeal before the Central Board of Excise and Customs, New Delhi and it was at that time the petitioner's Advocate brought to the notice of the petitioner that against the order of detention passed against Choksi he filed a writ petition O.P. No. 5552 of 1981 and this Court was pleased to set aside the detention of Choksi was illegal. He also stated that he was told that the said order was dated 18-4-1980 and during the hearing of the writ petition the grounds of detention of the said Choksi were placed before this Court and it was noticed that while passing the order among other things the respondents had no! considered the show cause memorandum issued to Sri. Choksi as well as the retraction made by him from his alleged confessional statement dated 5th November, 1979. considered the show cause memorandum issued to Sri. Choksi as well as the retraction made by him from his alleged confessional statement dated 5th November, 1979. It was further averred that even though the said detention order was not actually executed by serving the same on him, the petitioner was in imminent danger of arrest since the said order was liable to be executed by the Officers of the respondent and there was danger of the petitioner being taken into custody and placed under detention in some jail in the State of Kerala where the petitioner had no relatives or friends and the petitioner would be put to irreparable injury in the event of such eventuality. 4. This Court bad initially passed an order directing bail in the event of arrest but subsequently that order was vacated by this Court on 10th June 1982 with an observation that the petitioner in the O.P. would be taken into custody forthwith. However, it is admitted that the petitioner has not surrendered and the officials of the State Government were not able to execute the detention order evidently because the petitioner was evading the service of detention order. 5. Shri. Habibnlla Pasha who appeared for the petitioner in the O.P. and the respondent in the writ appeal, read out the judgment of the learned single judge in O.P. No. 5552 of 1981 (reported in 1983 Crl. L. J. 393) which is the subject-matter of Writ Appeal No. 305 of 1982 and raised the same grounds which were found favour with the learned single judge for quashing the detention order passed against Choksi. The learned counsel also raised some additional points. Briefly stated the learned Counsel raised the following grounds: 1. There is inordinate delay in passing the order of detention and also seeking execution of the order. The incident occurred on 5-11-1979 and the order of detention was passed six months thereafter, and it was sought to be executed after a period of 16 months. There must exist a close and proximate nexus in point of time between the date of the alleged incident and the date on which the detention order was passed; 2 There has been no application of mind by the Authorities on relevant materials in passing the order. There must exist a close and proximate nexus in point of time between the date of the alleged incident and the date on which the detention order was passed; 2 There has been no application of mind by the Authorities on relevant materials in passing the order. The Detaining Authority has not applied its mind to the fact that the prosecution has been initiated by the Customs Authorities; 3. The incident on the basis of which action for detention was initiated does not amount to attempt to smuggling, but only at the stage of preparation and therefore the action taken on the basis that the facts proved amounted to attempt to smuggling is illegal and unsustainable; and 4. The grounds for initiation of proceedings should be in existence and be prepared contemperaneously with the order of detention and in the instant case the order of detention was issued initially and the grounds were prepared much later and therefore the order of detention is unsustainable. It may be noticed that at the time when the original petition was moved, the order of detention was not served on the petitioners and the grounds for detention were also not served on the petitioner. However, in the case of Choksi the grounds of detention were furnished at the time of bearing and in the case of the petitioner in O.P. No. 1755 of 1982-R the Memorandum of . Grounds of detention was produced along with the counter affidavit. 6. The learned single judge in disposing of O.P. No. 1552 of 1981 held that there is difference between preventive detention and punitive detention, that the fact that the petitioner might have committed an offence punishable under the Customs Act or any other Statute was no reason why be should be detained and the order of detention should specifically mention that the reason for detention was to prevent offence being committed by the petitioner which can be reasonably anticipated in view of his past conduct. The learned judge also held that if no reasonable conviction could be drawn on the basis of the materials before the Authority, that the person ought to be detained for preventing offence which he was likely to commit, the order of detention would be bad. The learned judge also held that if no reasonable conviction could be drawn on the basis of the materials before the Authority, that the person ought to be detained for preventing offence which he was likely to commit, the order of detention would be bad. The learned judge further held that there was no explanation in regard to the delay in passing the impugned order and that there was force in the petitioner's contention that the order of detention was passed because it was found by the Customs Authorities that it was not possible for them to get a conviction on the specific offence alleged against the petitioner. The learned judge further held that though the petitioner was not arrested that did not mean that he should submit himself to arrest before he could approach this court for relief and in support of this position relied on the decision of the Bombay High Court in Jayantilal Bhagwandas Shah and ors. v. State of Maharashtra (1981 Crl. Q. 767). Sri. Habeebulia Pasha also heavily relied on the observations of the Bombay High Court in Jayantilal's case (supra) and took great pains to support the judgment of the learned single judge and argued that the fact that the order of detention was not served on the petitioners or executed against them should not stand in the way of entertaining the writ application which involved the personal liberty of the petitioners and examining whether the detention was illegal. The learned counsel further argued that the grounds of detention are vague and contended that the Central Board of Appeal considered the question whether a case of attempt of smuggling was made out and found that at best it would amount to only preparation since car in which the petitioners and others were travelling was intercepted at Aroor about 100 miles away from Trivandrum Airport. The learned counsel relied on the decisions of the Supreme Court in State of Maharashtra v. Mohammed Yakub & others (1980 Crl. Q. 793) and in Ahhayanand Mishra v. State of Bihar (AIR. 1961 SC. The learned counsel relied on the decisions of the Supreme Court in State of Maharashtra v. Mohammed Yakub & others (1980 Crl. Q. 793) and in Ahhayanand Mishra v. State of Bihar (AIR. 1961 SC. 1698) and a few other decisions and contended that in the light of the principles enunciated in these decisions the facts proved in the instant case would not establish an attempt to smuggling silver articles out of India, and on the basis of the materials proved the authorities could not have formed the subjective satisfaction required for ordering detention. 7. In the view we are taking regarding the maintainability of the writ petitions, and exercise of jurisdiction under Art.226 of the Constitution of India, we do not think that we are at this stage called upon to adjudicate upon the tenability of (be various contentions raised by the learned counsel for the petitioner. 8. A Division Bench of this court in O. P. No. 6627 of 1986-G had occasion to consider the propriety of entertaining the O. P. before the order of detention was executed. This court observed that it will not interfere in exercise of the powers under Art.226 of the Constitution in a case where order of detention was not executed and that it was open to the parties to take appropriate steps including approaching the High Court when the order of detention was served and given effect to. In the instant case also, the petitioners were evading the execution of the order of detention and the authorities could not serve the detention orders on the petitioners and the order could not be given effect to. As a matter of fact, when the writ petitions were moved in these cases, orders of detention and the grounds of detention on which the petitioners were sought to be detained were not furnished to them. We are therefore of the view that under such circumstances, the petitioners cannot be permitted to urge that there was no valid ground to detain them or there are infirmities in the order of detention issued by the Detaining Authority. We are therefore of the view that under such circumstances, the petitioners cannot be permitted to urge that there was no valid ground to detain them or there are infirmities in the order of detention issued by the Detaining Authority. In our view indulgence at this stage will only open the flood gates to persons who successfully and effectively evade the service of the detention order made under the COFEPOSA Act and approach this court seeking to quash the orders of detention even before the order of detention and the grounds on which the order of detention were based were communicated to the said persons. 9. The learned counsel for the petitioners relied on the observations of the learned single judge who sought support from the observations of the Maharashtra High Court in Jayantilal's case (1981 Crl. Q. 767). It is no doubt true that the fundamental rights guaranteed by the Constitution by Art.14,19 and 21 are very valuable rights and the court should be zealous to protect the rights enshrined in the said Articles whenever infraction of such rights are brought to the notice of the court and uphold the liberty of citizens. But at the same time the Courts cannot shut their eyes to the enormous problems that the country is facing on account of the sinister activities of economic offenders which vitally affect the economy of our country. Art.21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It cannot be disputed that the provisions contained in the COFEPOSA Act is a procedure established by law which permits the deprivation of the personal liberty of a person. Sufficient safeguards have been engrafted in Art.22 of the Constitution to protect any infraction of the personal liberty of the citizens. It cannot be disputed that the provisions contained in the COFEPOSA Act is a procedure established by law which permits the deprivation of the personal liberty of a person. Sufficient safeguards have been engrafted in Art.22 of the Constitution to protect any infraction of the personal liberty of the citizens. The said article provides that no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall be be denied the right to consult, and to be defended by, a legal practitioner of his choice and clause (2) of Art.22 provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Clause (3) further lays down that nothing contained in clause (2) would apply to any person who for the time being is an enemy alien; or to any person who is arrested or detained' under any law providing, for preventive detention and clause (4) provides that no law providing for preventive detection shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is is its opinion sufficient cause for such detention. The machinery provided under Art.22 enables any person against whom the order of detention is issued to make a representation to the Detaining Authority against the detention order and also makes provision for consideration of the objection to the detection by an Advisory Board consisting of persons who are qualified to be appointed as judges of the High Court. Persons against whom such detention orders are issued cannot be permitted to short-circuit these provisions and directly approach the High Court even before the order and the grounds on which the order is based are served on him, when it comes to his knowledge that an order of detention had been passed against him. Persons against whom such detention orders are issued cannot be permitted to short-circuit these provisions and directly approach the High Court even before the order and the grounds on which the order is based are served on him, when it comes to his knowledge that an order of detention had been passed against him. Interference at the stage when the order was not executed will only encourage people who are involved in such nefarious activities which would undermine the economy of the country to successfully evade detention orders and to approach this Court. Therefore, in our view, these writ petitions are liable to be dismissed on the sole ground that the order bad not taken effect to and that the petitioners had other effective and efficacious remedy by way of representation before the Advisory Board. 10. The learned counsel brought to our attention a Full Bench decision of the Gujarat High Court in Vedprakash Deskinandan Chiripal and ors. v. State of Gujarat and another (AIR. 1987 Guj. 253). In Para.19 of the judgment the court said that in a case where detention order itself has not been actually served on the petitioner a writ of habeas corpus is not maintainable. It was also held therein that a person against whom a detention order is issued cannot ordinarily seek a writ of mandamus in cases where he has not surrendered nor has he been served with an order of detention and only in exceptional cases and in rarest of rare cases where the order of detention appears to be ab initio void, a person against whom order of detention is issued can invoke jurisdiction of the High Court under Art.226 of the Constitution before the detention order is served upon him and before be surrenders pursuant to the detention order. The court also observed that it is not open to the court at that stage to call for the grounds of detention and review the same on the ground that the detention order will go against the procedure established by law. The court also observed that it is not open to the court at that stage to call for the grounds of detention and review the same on the ground that the detention order will go against the procedure established by law. It was also held that the court should not investigate the facts of the case nor look into the grounds at that preliminary stage when the person approaches the court even before he receives the order of detention and surrenders in view of such detention order; and a petition must come to an end once the respondent states on oath that the order of detention is validly passed against the person concerned. All that the court has to see at that stage is whether the order passed is ab into void, without going into the grounds of such a detention order. In our view the observations contained in the Full Bench decision of the Gujarat High Court do not in any way help the petitioners in these writ petitions and really lay great emphasis on the impropriety of interference of the High Court at the preliminary stage, invoking jurisdiction under Art.226 of the Constitution of India. The detention order, a copy of which has been produced by the petitioner, has not been shown as being ab initio void and under such circumstances, the court can only dismiss the application without going into the legality and propriety of the grounds for the order of detention when it is made known to the court that such detention order has been passed. We are unable to see bow the impugned orders of detention can be considered to be the rarest of rare cases where the order of detention can be characterised as ab initio void. 11. The learned Counsel finally contended that about nine months have elapsed since the incident which resulted in initiating proceedings under the COFEPOSA Act is over and now there is no restriction on export of silver and there is also no material to show that the petitioners in this case had involved during this long period of interval in any of the activities which would attract action under the COFEPOSA Act and vehemently pleaded that the Court may direct the authorities to review the matter in the light of these facts. In the view that we have taken that at this stage no writ can be entertained it would be improper for us to make such a direction to the authorities. We can only say that if the authorities are satisfied that under the changed situation and circumstances mentioned by the Counsel for the petitioner it is no more necessary to detain the petitioners, it is open to the Detaining Authority to review the matter and pass appropriate orders. We express no opinion in this matter. 12. The foregoing discussion would show that the above writ application cannot be entertained at this stage. We can only safeguard the interest of the petitioners by observing that the petitioners are at liberty to approach this Court again at appropriate stage and challenge the validity of the orders of detention passed against them. 13. In the view we have taken regarding the entertainability of the writ-petition at this preliminary stage, we are unable to sustain the order passed, by the learned single judge in O. P. No. 5552 of 1982 quashing the order of detention passed against the petitioners therein. In the result O.P. 1775 of 1982 is dismissed. Toe writ appeal filed by the respondent against the judgment in O. P. No. 5552 of 1981 is allowed and the judgment of the learned single judge setting aside the detention order and issuing a writ of mandamus against the arrest and detention of the petitioner therein is set aside. The parties will bear their respective costs.