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1989 DIGILAW 228 (KAR)

AKTAR SAKEENA v. GOVERNMENT OF INDIA

1989-07-03

PREM CHAND JAIN, SHIVASHANKAR BHAT

body1989
SHIVASHANKAR BHAT, J. ( 1 ) AMJAD Hussain was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the Act') by an order dated 8-10-1988. His mother has filed this petition challenging the same. The detenu has been in detention since 23-11-1988. ( 2 ) IT is stated in the grounds accompanying the order of detention that on 9-9-1988 the Officers of the Directorate of Revenue Intelligence kept watch at Mangalore along with two witnesses on the information that one Praveen Kumar Shetty was likely to carry foreign marked gold near poonja Arcade, Mangalore. Thereafter the Officers apprehended the said Praveen Kumar Shetty and from him five pieces of gold, each weighing 10 tolas were seized. These gold pieces had foreign markings and the certified gold-smith after testing them by touch-stone-method opined the said five gold biscuits, of 24 ct. purity and of foreign origin. Accordingly the said gold biscuits were seized, valued at Rs. 1,80,000/- on the reasonable belief that they were smuggled into India. It is further stated that the said Praveen Kumar Shetty made a statement according to which the detenu supplied him the aforesaid gold biscuits to handover them to another person near Hotel Sreenivas. It was also stated in the said statement that during the last one year that praveen Kumar Shetty had delivered gold biscuits many times at the Instance of the detenu. Consequently, the next day,. e. , on 10th September 1988 the statement of the detenu was recorded under Section 108 of the Customs Act in which the detenu stated that he was looking after his father's business in the textile shop at Mangalore; that last year when he was coming from Bombay the detenu came into contact with one Noorul Amine in the bus and during the course of conversation with him the said Noorul Amine offered to supply gold biscuits of foreign origin to the detenu each week for selling in Mangalore to which the detenu agreed. Since the detenu was afraid to work himself, he engaged Praveen Kumar Shetty for this job. Para-4 of the grounds of detention summarises this statement in more detail. Since the detenu was afraid to work himself, he engaged Praveen Kumar Shetty for this job. Para-4 of the grounds of detention summarises this statement in more detail. The substance of this statement was that the detenu was getting the gold from Noorul Amine and was disposing of the same through Praveen Kumar Shetty and another person called 'narayan' of Kadri as well as one abdulla. The gold biscuits seized from Praveen Kumar Shetty on 9-9-1988 at about 6. 30 p. m. were handed over to him by the detenu so that Praveen Kumar Shetty may in turn deliver them to abdulla near the gate of Hotel Srinivas. ( 3 ) THEREAFTER the detenu was arrested under Section 104 of the Customs Act and was produced before the Magistrate along with Praveen Kumar Shetty and ultimately the detenu was released on bail by the Magistrate on 19-9-1988. The grounds of detention also refers to the telegram sent on 24-9-1988 retracting the statements made by him earlier. Thereafter comes para-9 of the grounds of detention and in view of its relevancy the same is extracted here: "the gold biscuits under seizure have been tested for purity by touch stone method by a certified goldsmith who has opined that they are of 24 ct. purity and of foreign origin. The gold biscuits under seizure attract the provisions of Section 123 of the Customs Act, 1962 and as such the burden of proof that the said gold has not been smuggled into India is cast on you and on your failure to discharge the said burden to the authorities, the gold came to be seized by the Officers. Importation of gold into India has been prohibited under the provisions of Section 13 (1) of the foreign Exchange Regulation Act except with the general or special permission of the Reserve bank of India. You have not produced any such permission obtained from the Reserve Bank of india for the importation of the said gold under seizure to the Competent Authorities at the time of seizure of the said gold. Therefore the gold under seizure is liable for confiscation under the customs Act, 1962 and deemed to be smuggled goods within the meaning of Section 2 (e) of the cofeposa Act read with Section 2 (39) of the Customs Act, 1962. Therefore the gold under seizure is liable for confiscation under the customs Act, 1962 and deemed to be smuggled goods within the meaning of Section 2 (e) of the cofeposa Act read with Section 2 (39) of the Customs Act, 1962. " the first sentence in para-10 is also to be noted, which is as follows: "on the basis of depositions made by you in your statement, result of follow up actions as detailed above and after duly considering the retractions made by you, I am satisfied that you were engaged in dealing in smuggled goods. " ( 4 ) IN answer to the Writ Petition, an affidavit in opposition was filed by the Director, Directorate of Enforcement, New Delhi, who as the Joint Secretary to the Government of India, had signed the order of detention. There is also a counter-affidavit filed by the Senior Superintendent, central Prison, Bangalore, to traverse certain allegations made in the Writ Petition pertaining to him. ( 5 ) THE learned Counsel for the petitioner urged three contentions, viz. (i) The Detaining Authority wrongly invoked the provisions of Section 123 of the Customs Act against the detenu and this has vitiated the order of detention; (ii) The detenu was denied the assistance of a Counsel in spite of repeated requests and hence the order of detention contravenes the provisions of Articles 21 and 22 of the Constitution of India (vide Para-13 of the Writ Petition ). (iii) The Detaining Authority has derived two different satisfactions as could be seen from para-10 of the grounds of detention (vide para-17 of the Writ Petition ). RE. CONTENTION (i): ( 6 ) IN para-16 of the, Writ Petition the petitioner has asserted that the order of detention and grounds have been made without application ot mind as is clear from para-9 of the Writ Petition, which attracted Section 123 of the Customs Act and by casting the burden of proof on the detenu. It was argued by the learned Counsel for the petitioner that the gold was not seized from the detenu at all. Allegedly, the gold biscuits were seized on the previous day from Praveen kumar Shetty and the provisions of Section 123 of the Customs Act cannot be attracted to fasten the burden of proof on the detenu. It was argued by the learned Counsel for the petitioner that the gold was not seized from the detenu at all. Allegedly, the gold biscuits were seized on the previous day from Praveen kumar Shetty and the provisions of Section 123 of the Customs Act cannot be attracted to fasten the burden of proof on the detenu. Section 123 applies when the relevant goods are seized under the Customs Act in the reasonable belief that they are smuggled goods and in such a situation the burden of proving that they are not smuggled goods, is cast on the person from whose possession the said goods were seized, and also on any other person, if such other person claims to be the owner of the said goods. It is contended that the detenu never claimed the ownership of the gold biscuits which were seized on 9-9-1988 from Praveen Kumar Shetty. Similarly, they were not seized from the possession of the detenu. Therefore, the question of casting of any burden on the detenu to prove that those gold biscuits were not smuggled goods did not arise at all. The entire investigation in this case proceeds from the alleged seizure of gold biscuits on 9-9-1988 from praveen Kumar Shetty. However, para-9 of the grounds of detention states that since the detenu failed to discharge the burden cast on him under Section 123 of the Customs Act, the said gold came to be seized by the Officers of. Para-9 further states that permission of the Reserve bank of India, which is a pre-requisite for Importation of gold into India was not produced by the detenu, at the time of the seizure of the gold by the Competent Authorities. ( 7 ) WE find considerable force in the contentions of the learned Counsel for the petitioner in this regard. The entire para-9 of the grounds of detention proceeds on the assumption that the detenu was responsible to discharge the burden of showing that certain gold biscuits seized were not of foreign origin or that they were not smuggled goods. When admittedly the gold was not seized from the detenu and nowhere the detenu claimed to be the owner of any such gold, question of fastening the burden of proof on him under Section 123 will not arise. When admittedly the gold was not seized from the detenu and nowhere the detenu claimed to be the owner of any such gold, question of fastening the burden of proof on him under Section 123 will not arise. Further, the gold had already been seized, according to the authorities on 9-9-1988 from Praveen Kumar Shetty, and the detenu was not present at that time, at the place of seizure. The act of seizure was already over. In spite of this admitted position, para-9 states that the detenu failed to produce the general or special permission of the Reserve Bank of India for the importation of the said gold. Therefore, it has to be held that the entire para-9 is patently erroneous and that the Detaining authority has not applied his mind to the relevant facts at all. ( 8 ) THE question is, how far this statement found in para-9 of the grounds of detention would vitiate the order of detention. According to the learned Counsel for the first respondent, para-9 is an Independent ground and even if the said ground is bad, the detention can be sustained on other grounds referred in the grounds of detention. Strong reliance was placed on the decision of the Supreme Court in PRAKASH CHANDRA MEHTA v. COMMISSIONER AND secretary, GOVERNMENT OF KERALA AND ORS AIR1986 sc 687 , 1986 Crilj786 , 1985 (1 ) SCALE813 , 1985 Supp (1 )SCC144 , [1985 ]3 SCR697. wherein Section 5a of the Act was interpreted. In addition to this, the learned Central government Advocate also referred to the decision of the Supreme Court AIR1986 SC 283 , 1986 Crilj177 , 1985 (2 )Crimes799 (SC ), 1986 (8 )ECC138 (SC ), 1985 (2 )SCALE634 , (1985 )4 SCC361 , [1985 ]supp3 SCR252 (Raj Bhavan case AIR1986 SC 283 , 1986 Crilj177 , 1985 (2 )Crimes799 (SC ), 1986 (8 )ECC138 (SC ), 1985 (2 )SCALE634 , (1985 )4 SCC361 , [1985 ]supp3 SCR252 wherein the statement of the detenu made under Section 108 of the Customs Act was by itself held to be sufficient to base the detention. It was contended that in the statement made by the detenu he had admitted having supplied the gold biscuits to Praveen Kumar Shetty and others for disposal at mangalore after obtaining the gold biscuits from one Noorul Amine and this admission is sufficient to show that the detenu was consistently dealing in smuggled goods. The order of detention in this case is under Section 3 (1) (iv) of the Act and the grounds of detention also categorically states that ft was with a view to preventing the detenu from dealing in smuggled goods, that he had to be detained. ( 9 ) IN this case, it will have to be noted that the basic fact for the investigation and the subsequent detention is the alleged seizure of five gold biscuits from Praveen Kumar Shetty. This alleged seizure and the assumption of the Detaining Authority that the burden was on the detenu to show that the said gold biscuits were not smuggled, pervades the grounds of detention. The statement of the detenu made under Section 108 of the Customs Act had been retracted. It is not possible to infer as to what would have been the reaction of the mind of the Detaining Authority if there were no other factors in this case, except the sole statement of the detenu made under Section 108 and the detenu's retraction of the said statement. To what extent the Detaining Authority would have re-acted to the retraction is anybody's guess and it cannot be said that in such a simple situation the Detaining Authority would have acted only on the statement under Section 108. The formation of the satisfaction though subjective, as to be preceded by an objective approach in the mind. A bona fide exercise of the power, always calls For an honest, efficient and faultless consideration of the factors that would lead to a satisfaction for acting in a particular manner even though the said satisfaction is termed as a subjective satisfaction. This principle is different from the principle stated in Prakash Chandra Mehta's case where there were several grounds out of which any one of the grounds independently could sustain the detention order. Each ground was the result of a proper application of the mind and therefore each ground could have sustained the detention order. This principle is different from the principle stated in Prakash Chandra Mehta's case where there were several grounds out of which any one of the grounds independently could sustain the detention order. Each ground was the result of a proper application of the mind and therefore each ground could have sustained the detention order. But in this case the test is whether there was an application of the mind to the vital facts of the case and in case there was no application of the mind to the vital facts of the case, can it be said that the subjective satisfaction was the real satisfaction? At para-71 It was stated in Prakash Chandra Mehta's case that - "article 22 (5) of the Constitution has two elements: (i) communication of the grounds on which the order of detention has been made; (ii) opportunity of making a representation against the order of detention. Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the Detaining authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism. " Therefore no detention can be valid unless the Detaining Authority had applied his mind to the pertinent and proximate matters and in this case the said pertinent and proximate matters was the alleged seizure of gold from Praveen Kumar Shetty and the presumption drawn under Section 123 of the Customs Act. ( 10 ) TO us, it looks that the most apposite principle to be applied to the facts of the case is the one found in AYYA alias AYUB v. STATE OF U. P. AND ANR AIR 1984 SC. wherein the supreme Court after referring to several earlier decisions observed at para-10: "there are well recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered by the Detaining Authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Amongst other things, the material considered by the Detaining Authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law Courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining Authority. " Similarly, in ASHADEVI v. K. SHIVRAJ AND ANR AIR 1979 SC 447 . it was observed that, "it is well settled that the subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the Detaining Authority one way or the other are ignored or not considered by the detaining Authority before issuing the detention order. " (Underlining is by us) therefore, it is clear that the test applicable to the validity of any administrative order also will be applicable to a detention order. If the Detaining Authority misdirects himself on a vital issue or point of law, commits a patent mistake regarding matter of a material or vital fact, the order cannot be sustained. It is all the more so, when the Court is concerned about the personal liberty of a person and is entrusted with the responsibility of examining the order pertaining to the said liberty. If the order of detention and the grounds for the same disclose that the Detaining authority failed to apply his mind or treated the entire matter very casually, the order of detention cannot be sustained. ( 11 ) THIS is a case where the core of grounds of detention read with the basic facts clearly establishes that the Detaining Authority did not apply his mind and missed the real facts involved in the case. Consequently, the alleged subjective satisfaction of the Detaining Authority cannot be held to be a satisfaction approved of by the Parliament as a justification for the detention under the preventive detention law. Consequently, the alleged subjective satisfaction of the Detaining Authority cannot be held to be a satisfaction approved of by the Parliament as a justification for the detention under the preventive detention law. ( 12 ) FURTHER, the satisfaction arrived at by the Detaining Authority is the result of a cumulative consideration of the detenu's statement, the follow up action and the retraction of the detenu as is clear from para-10 of the grounds of detention. The satisfaction does not rest here on any one of the facts, in isolation. ( 13 ) IN the view we have taken on the first ground, it is not necessary for us to discuss the other contentions raised by the learned Counsel for the petitioner. ( 14 ) IN the result, for the reasons stated above, this petition is allowed and the order of detention dated 8th October, 1988 made in Order No. F. No. 673/389/88 (Annexure-A) is quashed. The detenu (Amjad Hussain) shall be released forthwith.