Boricha Valabhai Nathubhai v. State Of Gujarat And Others

1. The petitioner has filed this petition from jail under Articles 20, 21 and 22 of the Constitution of India challenging the detention order dt. 4-12-86 passed against him by the Additional Chief Secretary, Government of Gujarat, Home Department, with a view to preventing the petitioner from engaging in concealing smuggled goods. The said order was passed under Section 3(1) of the COFEPOSA Act. The grounds of detention were also supplied to the petitioner on the same day,

2. On perusal of the grounds it is evident that as a result of search there was recovery of 97 slabs of silver which were found concealed below the tiles in Kundi No. 5. The said slabs of silver were weighing 3,101.925 Kgs. and valued in aggregate at Rs. 1,23,45,661/-. The said search was made on 28th July 1986. It was also evident from the statement of the petitioner which was recorded on 5-8-1986 that he was known as Valabhai; that they had constructed six shops near their house at Morvi; that out of the said six shops one was a hotel which was known as "Valabhai's Hotel"; that the name of the Hotel was "Yadunandan"; that he had purchased one truck and its number was GRP 4137; that he had sold the said truck to one Siddik Suleman but since the loan was outstanding, the name of the owner had not been transferred with the R.T.O. It is also evident from his said statement that one Vasan Visa Mata had introduced Mohmed Kutehhi to the petitioner; that one Karim Abdulla had also told to the petitioner to help Mohmed Kutehhi in his smuggling activity; that Vasanbhai had instructed the petitioner to reach the Sunrise Tiles factory at night and accordingly he left his house at 22.00 hrs. and that the petitioner helped him in concealing silver in one of the Kundies in the said factory and thus, the petitioner has been concealing smuggled goods. After taking into consideration the various relevant factors from the materials the detaining authority reached the subjective satisfaction looking to the petitioners involvement in the incident and felt that if the petitioner is not prevented he would continue his nefarious activity and cause harm to the nation in future and his detention under COFEPOSA Act is the only remedy at this stage to prevent the petitioner from indulging in prejudicial activity of the like nature.

3. The petitioner in his petition has pointed out the facts to the effect that while searching the factory of Sunrise Tiles Private Limited on 27th/28th July 1986, 97 slabs of silver were seized. On 4-8-1986 the respondents 2 and 3 had come to Morvi and searched the petitioner's house, but nothing objectionable was found. However, the petitioner was asked that his statement was to be recorded at Jamnagar and, therefore, he was asked to accompany them. The petitioner was kept in DRI's office from 4-8-1986 to 9-8-86 and he was produced before the learned Chief Judicial Magistrate at Jamnagar at 5.30 p.m. on 9-8-1986. He has further pointed out that he had made an application for bail on 13-8-1986 which was rejected by the learned Chief Judicial Magistrate and that thereafter he had made another application for bail before the learned Sessions Judge, Jamnagar and that application was also rejected on 5-9-1986. According to the petitioner after six days as no chargesheet was filed against him he made further bail application and he was ordered to be released on bail on 30-10-1986. However, the opponents in the said bail application preferred a revision application in this Court and in the said revision application the petitioner was ordered to be in custody from 22-11-1986 and he is in jail from that date. The order of detention was also served on him in jail.

4. He has also pointed out that the show-cause notice dt. 12-1-1987 is also served on him and he has annexed a copy of the same with the petition. The said show-cause notice was issued by the Assistant Director, DRI, under Section 124 of the Customs Act, 1962. It is also averred in the petition that the respondent 2 wants to prosecute the petitioner in the Court of the learned Chief Judicial Magistrate, Jamnagar for the alleged offences as also he wants to proceed with the adjudication proceedings for which the petitioner has been served with the show-cause notice. Thus, according to the petitioner for the same offence three different proceedings were started by the respondent No. 2 and that the respondent No. 2 had no authority to do so. According to the petitioner the action of the opponents is illegal and unconstitutional in view of the Article 20(1), (2) and (3) as also Articles 21 and 22 of the Constitution .

5. As the petitioner is in jail and is not personally present in the Court we have, carefully considered his submissions made in the application. The first contention raised in the petition is with regard to the infringement of Article 20(1), (2) and (3) of the Constitution. So far as Article 20(3) is concerned, it has no application in the present case inasmuch as there is no question of compelling him to be witness against himself. These are the preventive proceedings. The petitioner has nowhere averred in the petition that he is convicted for the particular offence and he is again prosecuted for the same offence. With a view to attracting applicability of Article 20 of the Constitution of India Clauses (1) and (2), the fundamental conditions are:

(1) There must have been a previous prosecution;

(2) Accused must have been punished at such prosecution;

(3) Subsequent proceedings must also be one for the prosecution and punishment of the accused.

(4) The proceedings on both the occasions must be in relation to the same offence.

None of the said conditions have been satisfied and, therefore, Articles 20(1) and (2) arc not attracted in the present case. Further, the petitioner appears to be under some misconception about the show-cause notice for adjudication which has been issued under Section 124 of the Customs Act. It is well settled that adjudging order of confiscation or increase duty or penalty does not constitute a judgment or order of the Court of judicial tribunal necessary for supporting a plea of double jeopardy. It is clear that the provisions of the COFEPOSA Act are made for the purpose of preventing smuggling activities and for the matters connected therewith. It is a preventive measure and it has nothing to do with the prosecution of the past act done by the petitioner. Thus, we do not find any substance in this contention.

6. The second contention raised by the petitioner is that he was detained though he was already in jail and he was served with the detention order in jail. The detaining authority was aware of this aspect and he has also pointed out in the grounds of detention the fact of the petitioner's being in custody and mentioned that the detaining authority was aware that at present the petitioner was in judicial custody up to 10-12-1986. The petitioner being released on bail thereafter at any time is a distinct possibility and after referring to adjudication and prosecution aspect it is also mentioned in the grounds of detention that in the meanwhile the detaining authority looking to the petitioner's involvement in this incident felt that if the petitioner is not prevented he would continue his nefarious activity and cause harm to the nation in future and his detention under the COFEPOSA Act is the only remedy at this stage to prevent him from indulging in prejudicial activity of the like nature. Therefore, it is clear that this aspect was present in the mind of the detaining authority while passing the order of detention. It therefore, cannot be said that the detaining authority has not applied his mind on the aspect of necessity of petitioner's detention and for that the order of detention has been passed as a punitive measure.

7. Referring to the contention of the petitioner about the violation of Article 22 of the Constitution, it may be stated that Mr. J. U. Mehta, the learned Addl. P. P. has pointed out to us from the file that the order of detention was made on 4-12-1986, report thereof was also made to the Central Government on the same day, the matter was referred to the Advisory Board on 4-1-1987 and the Advisory Board gave its opinion on 19-2-1987. He has also pointed out to us that the petitioner has made a representation addressed to the Detaining Authority on 16th April 1987 from the jail and the said representation was received by the Detaining Authority on 20th April 1987 and the order rejecting the said representation was communicated to the petitioner on 22nd April 1987. It may be mentioned that in the grounds of detention the petitioner was informed about the authorities to whom he can make representation and he was informed that he can make representation to the State Government, to the Central Government as also to the Advisory Board. However, it was not pointed out in the said grounds that he can also make representation to the detaining authority. However, in the present case the petitioner-detenu has made his representation to the detaining authority i.e. Shri Harihardas. In that view of the matter though specifically he was not informed that he can make representation to the detaining authority still however, he has made representation to the detaining authority and, therefore, it cannot be said that the petitioner was deprived of an opportunity of making a representation to the detaining authority. The Courts have given due importance to the procedural safeguards and it is the duty of this Court to safeguard the right under Article 22(5) of the Constitution of India. However, on this point the observations made by the Supreme Court in the case of Prakash Chandra v. Cornmr. and Secy. Govt. of Kerala are important which are quoted as under:

81. As the Statement of Objects and Reasons of 1975 Amending Act state that smuggling of foreign exchange racketeering and related activities have a deleterious effect on the national economy and thereby a serious adverse effect on the security of Slate. The society must be protected from that social menace by immobilizing the persons by detention of the persons engaged in those operations and to disrupt the machinery established for furthering smuggling and foreign exchange manipulations (Statement of Objects and Reasons of 1975 Act). Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that, yet these must be looked at from a pragmatic and commonsense point of view. The exercise of the power of preventive detention must be strictly within the safeguards provided. We are governed by the Constitution and our Constitution embodies a particular philosophy of government and a way of life and that necessarily requires understanding between those who exercise powers and the people over whom or in respect of whom such power is exercised. The purpose of exercise of all such powers by the Government must be to promote common well-being and must be to subserve the common good. It is necessary to protect therefore the individual rights in so far as practicable which are not inconsistent with the security and well-being of the society. Grant of power imposes limitation on the use of the power. There are various procedural safeguards and we must construe those in proper light and from pragmatic commonsense point of view. We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the; country and national security may claim in certain circumstances higher priority.

8. It is true that the right to make a representation under Article 22(5) may become ineffective or a illusory one. Therefore, the decisions of the Supreme Court and other High Courts have laid down that it is the duty of the detaining authority to inform the detenu about his right, even though Article 22(5) does not specifically provide for it. It is for that reason that when a detenu is an illiterate person and is not aware of his right to make representations to the appropriate authorities and in fact does not make any such representation, the Courts have always held that the detenu having been deprived of his constitutional right, his continued detention becomes bad as it is violative of Article 22(5) of the Constitution. But in case of a person who is literate and knows about his right to make representation and in fact makes a representation to the detaining authority it would be highly technical to hold that mere absence of mentioning about the detenu's right to make representation to the detaining authority in the grounds of detention would violate the constitutional safeguard under Article 22(5) of the Constitution. One illustration is sufficient to throw light on the point. Suppose an Advocate who is daily dealing with detention matters and who is raising such point before the Court in arguing matters of his clients is detained and the detaining authority has not mentioned that the detenu has a right to make a representation to the detaining authority, would it violate the provisions of Article 22(5) of the Constitution of India. The answer would be definitely no. The Supreme Court has also observed in the case of Wasi Uddin Ahmed v. District Magistrate, Aligarh as under:

Where the detenu was an enlightened person and had been in active politics and was, therefore, fully cognisant of his right to make a representation under Article 22(5) and under Section 8 of the National Security Act and he, in fact appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board, the failure to comply with the requirement of informing the detenu with his right to make a representation would not have the effect of vitiating the order of detention or render the continued detention of the detenu illegal.

9. In the present case the detenu is not an illiterate person, but he is a literate and he knows about his rights. In fact, he has himself filed the petition quoting the Articles 20(1),(2) and (3), 21 and 22 of the Constitution of India. It clearly discloses that he knows about his right under the Constitution and particularly under Article 22 thereof. The petitioner has also made a representation to the detaining authority i.e. Shri Harihardas, who was also authorised to receive the representation on behalf of the State Government. It is not the petitioner's case that he was misled by what was stated in the grounds and, therefore, could not make a representation to the detaining authority and the representation which he made was really addressed to the State Government. It is also not his case that because of the absence of such a recital in the grounds, he could not make the representation earlier. Under the circumstances the case of the petitioner would clearly fall within the ratio of the Judgment of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate, Aligarh . Even after making the representation to the detaining authority the petitioner could have also made representations to the State Government or to the Advisory Board and also to the Central Government, as mentioned in the grounds of detention. Under the circumstances there is no question of whittling down any of the rights of the detenu under the Constitution. We are, therefore, of the view that there is no substance in this contention of the petitioner.

10. In above view of the matter we do not find any substance in any of the contentions raised by the petitioner and the petition therefore, deserves to be dismissed and is hereby dismissed. Rule discharged.