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Case Number

Special Criminal Application Nos. 455, 456 and 457 Nos. of 1984

Attorney(S)

S.R.Shah
K.J.Sethna

Judges

Hon'ble Mr. Justice Ramesh Amritlal Mehta
Hon'ble Mr. Justice Narayanlal Himatlal Bhatt

Acts

Section 3(2) of the COFEPOSA Act.

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Smart Summary

Concise Analytical Summary of the Opinion (Mehta, J.)

Factual and Procedural Background

The opinion arises on petitions under the COFEPOSA Act (preventive detention) challenging detention orders in three linked Special Criminal Applications (Nos. 455/84, 456/84 and 457/84). The petitions attack the validity of detention orders based on a smuggling transaction (March 1983) and raise multiple grounds including alleged non-supply of material, delay, effect of a Section 9 declaration, and the adequacy of consideration of representations by the Central Government. The judgement also refers to connected proceedings (including Spl. Criminal Application No. 427/84 and earlier applications Nos. 868 and 869 of 1983) and to decisions by the Advisory Board and the Central Government. Mehta, J. addresses multiple contentions raised by learned counsel for the petitioners and disposes of the three petitions by discharging the rule in each matter with no order as to costs. The court also certifies the question under Article 134(1)(c) as fit for appeal to the Supreme Court.

Legal Issues Presented

Whether detenus were entitled to be supplied with information/explanation about delay and inter-governmental correspondence concerning the detention.
Effect and relevance of a declaration under Section 9 of the COFEPOSA Act on the Central Government's consideration of detenus' representations.
Whether the requirement under Section 3(2) (sending report to the Central Government) was triggered in these cases.
Whether the Central Government properly considered the detenus' representations and who on its behalf did so.
Whether prior detention (and subsequent release by judgment) or the grant of bail/anticipatory bail prevents fresh preventive detention based on a later incident.
Whether the detenus were supplied with necessary particulars and documents (including statements, information on named individuals, and photographs) sufficient for making effective representations.
Whether statements relied upon were involuntary and accordingly inadmissible for purposes of justifying detention.
Whether amendments to Section 9 (and consequential amendment to Section 8) removed the Advisory Board's jurisdiction to consider the validity of the original detention.
Whether detenus are lawfully required to be kept "as near as possible" to their town of residence and whether judicial interference was required on that ground at this stage.

Arguments of the Parties

Petitioners' Arguments

The detenus were deprived of information about delay and of the correspondence with the State Government; such material was necessary and required to be supplied.
A declaration under Section 9 was not placed before the Central Government when it considered the detenu's representation; therefore consideration was vitiated.
The detaining authority (Additional Secretary to the Central Government) failed to send the detention order, grounds and facts to the Central Government under Section 3(2) of COFEPOSA.
It is not shown who considered the detenu's representation on behalf of the Central Government.
Earlier detention (9th June, 1983) was operative when the present proposal was made, so there was no cause for fresh detention based on the March 1983 incident.
The detenus were released on bail/anticipatory bail; there was no fresh incident, prosecution was not launched for 15 months and these facts were not adequately considered.
Important particulars and documents were not supplied: unidentified references (e.g., to "Tayab"), lack of date/time for an ambassador car, and alleged previous statements (e.g., earlier refusal of Bhagwanji) not provided.
Photographs supplied were faint and did not permit identification.
Statements of various persons were involuntary (ground No. 5) and there was no effective reply to this ground.
After amendment/substitution of Section 9 and consequential amendment in Section 8, the Advisory Board was deprived of jurisdiction to go into validity of the original detention, thereby denying the detenus a proper opportunity to represent against the original detention.
Detenus were not being kept as near as possible to their town of residence.

Respondent / Detaining Authority's Arguments

The detaining authority has no legal obligation to tell or satisfy the detenu as to causes of delay; it is under an obligation to satisfy the court as to delay. The delay was satisfactorily explained to the court (relying on Hemlata).
The Section 9 declaration is merely a statutory declaration regarding prejudicial activity in an area vulnerable to smuggling; it has statutory consequences by operation of law and is not an independent consideration that vitiates the Central Government's decision on the original detention.
Section 3(2) reporting requirement applies only where the State Government (or its empowered officer) makes the detention order; it does not apply where an officer empowered by the Central Government makes the order.
The representations were considered: the representation to the detaining authority was rejected by that authority; the representation to the Central Government was decided by the Minister of Revenue and Expenditure under the Rules of Business.
The earlier detention had been quashed and the detaining authority proceeded on materials specific to the March 1983 incident; at the time of passing the present order the detenus were not in custody and the detaining authority was satisfied about the need for detention on present materials.
The detaining authority considered bail/anticipatory bail and the gap between incident and detention; preventive detention serves a different purpose than bail and a person on bail may still properly be preventively detained if the statutory requirements are met (relying on Vijay Narayan Singh).
Particulars regarding named persons (e.g., "Tayab") existed only in witness statements and those statements (the material possessed) were supplied; nothing additional was withheld. Regarding before-refusal remarks referenced in Bhagwanji’s statement, no recorded previous written statement existed to be supplied.
The gist of information received by Revenue Intelligence was supplied in the grounds; disclosure of the full information was legitimately withheld on public interest grounds invoking Article 22(6) of the Constitution.
The photographs provided in the record are reasonably clear and permit identification.
The allegation of involuntary statements was a vague general averment; specific averments in grounds 15, 16, 25 and 27 were replied to and denied.
The Advisory Board retains jurisdiction to go into the validity of the original detention; substitution of Section 9/8 did not take that jurisdiction away.
No judicial interference was warranted about place-of-detention at this stage; authorities must consider applications for nearer custody in accordance with law and facts of each detenu.
With respect to the individual detenus (Ibrahim Umar Bhaya, Elias Haji Ismail, Haji Haji Ismail) the detaining authority relied on specific factual material showing each played an active or leading role in the smuggling transaction and that the subjective satisfaction of the authority was supported by material.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mahd. Shakil Wahid Ahmed v. State of Maharashtra, (1983) 2 SCC 392 : AIR 1983 SC 541	Illustrates a situation where co-detenus were released by the Advisory Board and the detaining authority failed to take that order into account when passing detention against another detenu.	Court distinguished the present facts from that case, stating the question before the court here was of a different character and the circumstances in Mahd. Shakil Wahid Ahmed did not apply.
Hemlata v. State of Maharashtra, (1981) 4 SCC 647 : AIR 1982 SC 8	Holds that the detaining authority is not legally obliged to tell the detenu the causes of delay; the authority must satisfy the court as to causes of delay.	Court relied on this precedent to hold that delay had been satisfactorily explained to the court in the present cases and that it was not necessary to supply that explanation to the detenu.
Vijay Narayan Singh v. State of Bihar, (1984) 3 SCC 14 : AIR 1984 SC 1334	States that preventive detention is not intended to keep a person detained merely because bail might not be available; when a person is enlarged on bail, greater caution is required before validating an order of preventive detention based on the same challenge.	Court noted that the Supreme Court did not lay down an absolute bar on detaining a person who had been released on bail; rather, greater caution is required. The court applied this principle to reject the contention that grant of bail precluded preventive detention in these facts.

Court's Reasoning and Analysis

The court proceeds ground by ground, applying statutory interpretation, precedent and the factual record supplied in the detention files. The analysis can be summarized as follows.

Delay and disclosure: Relying on Hemlata, the court reiterates that the detaining authority need not disclose to the detenu the causes of delay; rather the detaining authority must satisfy the court as to the causes of delay. In the present matters the delay was satisfactorily explained to the court and hence non-supply to the detenu was not fatal.
Section 9 declaration: The court treats the Section 9 declaration as a statutory declaration regarding prejudicial activity in an area vulnerable to smuggling that has statutory consequences by operation of law. It holds the declaration has no independent existence separate from the detention and, if the detention is otherwise bad or revoked, the declaration becomes ineffective. Therefore, omission to place that declaration before the Central Government does not vitiate consideration of the representation.
Section 3(2) reporting: The court interprets Section 3(2) as requiring a report to the Central Government only where the State Government or an officer empowered by the State Government makes the detention order; the provision does not apply where the order is made by an officer empowered by the Central Government. Accordingly, the contention that Section 3(2) was not complied with is misconceived.
Consideration of representations: The record, and the affidavit-in-reply, indicate that the representation to the detaining authority was rejected by that authority and the Central Government's decision was taken by the Minister of Revenue and Expenditure under the Rules of Business. The court finds no flaw in that process.
Earlier detention and subsequent prosecution/bail: The court distinguishes the earlier order (which had been quashed) from the material supporting the present detention based on the March 1983 incident. It emphasizes that when the present order was passed the detenus were not in custody; the detaining authority considered the relevant material (including the fact that prosecution had not yet been launched and that bail/anticipatory bail had been granted) and was satisfied that detention was necessary. On the relationship between bail and preventive detention the court follows Vijay Narayan Singh to hold that bail does not preclude preventive detention; rather, greater caution is required before validating such detention where bail has been granted, and, on the facts, the detaining authority's satisfaction was supported by material.
Supply of particulars and documents: The court examines each complaint about non-supply. References to persons such as "Tayab" exist only in witness statements; the material that the authorities possessed was supplied and there was no additional undisclosed material. Alleged earlier oral refusals referred to in Bhagwanji's statement were not reduced to recorded statements and therefore there was nothing omitted to supply. The gist of intelligence inputs was supplied in the grounds; nondisclosure of full intelligence material was justified on public interest grounds invoking Article 22(6). Photocopies of photographs were examined and found reasonably clear.
Voluntariness of statements: The petitioners' averment that statements were involuntary was general and vague. The court notes that specific averments in other grounds were replied to and denied; the detaining authority denied allegations of involuntariness.
Advisory Board jurisdiction after amendment: The court rejects the contention that substitution of Section 9 and consequential amendment of Section 8 deprived the Advisory Board of jurisdiction to examine the validity of original detention. It holds that the Advisory Board's jurisdiction to consider continued detention necessarily includes consideration of original detention.
Place of detention: The court recognizes the general principle that detenus should ordinarily be kept as near as possible to their town of residence and that detainees may apply to the detaining authorities; however, the court declines to interfere at this stage, leaving consideration to authorities in accordance with law and exigencies.
Individual factual findings: For each named detenu the court refers to the record and the role attributed: Ibrahim Umar Bhaya (tindal of the fishing boat engaged in transhipment—remuneration Rs.5,000—knowingly participated and abetted the smuggling); Elias Haji Ismail (arranged the boat, supervised transhipment, maintained contact by walkie-talkie—abetting role); Haji Haji Ismail (mastermind, organised smuggling transaction worth about Rs.60 lakhs). On those facts the court finds the detaining authority's subjective satisfaction was supported and not vitiated.

Holding and Implications

Holding: The court held that all three petitions fail and the rule is discharged in each case with no order as to costs.

Implications:

The direct effect is that the challenged detention orders remain undisturbed by this court; no relief is granted to the petitioners in Special Criminal Applications Nos. 455/84, 456/84 and 457/84.
The court certified that the question relating to substituted Section 9 of the COFEPOSA Act is a substantial question of law of general public importance and fit for appeal to the Supreme Court under Article 134(1)(c) of the Constitution; consequently, leave to appeal was the subject of an oral application and the certification was granted.
The court ordered that a writ be sent regarding page 18 to respondent No. 4 (administrative direction noted in the order).
No broader novel precedent was expressly announced beyond application of existing authorities; the court largely applied established principles (as set out in the cited authorities) to the facts and certified the legal question for Supreme Court consideration.

Note: This summary is prepared solely from the content of the provided opinion extract and does not add information beyond that text.

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Jusab Haji Ismail v. State Of Gujarat And Others

Mehta, J.:—

1. [Not reported. Only portions approved for reporting by High Court are reported.]

2. [Not reported. Only portions approved for reporting by High Court are reported.]

3. [Not reported. Only portions approved for reporting by High Court are reported.]

4. [Not reported. Only portions approved for reporting by High Court are reported.]

5. [Not reported. Only portions approved for reporting by High Court are reported.]

6. [Not reported. Only portions approved for reporting by High Court are reported.]

7. [Not reported. Only portions approved for reporting by High Court are reported.]

8. Besides the above contentions which we have dealt with extensively in our judgment in Spl. Criminal Application No. 427/84 and others, the learn-end counsel for the petitioners in these petitions has raised several other grounds which, we shall now take up for consideration. It was contended that the detenus were deprived of the information about the delay and the correspondence with the State Government and that these materials were highly relevant and necessary and were required to be supplied to the detenus. In this connection reference was made to the case of Mahd. Shakil Wahid Ahmed v. State of Maharashtra, (1983) 2 SCC 392 : AIR 1983 SC 541. In that case co-detenus were released by the Advisory Board and while passing the order of detention in respect of that detenu, the detaining authority had not taken into consideration the fact that the other persons were released and, the order of the Advisory Board was not taken into consideration. Here the facts are entirely different. The question before us is not of that character. On the question of delay, the Supreme Court in the case of Hemlata v. State of Maharashtra, (1981) 4 SCC 647 : AIR 1982 SC 8 held that the detaining authority is under no legal liability to tell or satisfy the detenu as to the causes of delay. It is under an obligation to satisfy the court as to the causes of delay and in that case the Supreme Court held that the delay was satisfactorily explained by the detaining authority in its affidavit. In the present case also the delay has been satisfactorily explained to the court and it was not necessary that the detenu should have been supplied with such information and explanation.

9. With respect to the declaration under Section 9, COFEPOSA Act, it was contended that this declaration was not placed before the Central Government when it considered the representation of the detenu and the detenus' representations came to be rejected by the Central Government without it being made aware that declaration under Section 9 was made. Section 9 declaration is a mere declaration regarding the detenus' prejudicial activity in ‘an area highly vulnerable to smuggling’ and such declaration has nothing to do with the original detention against which the representation was made. Such declaration has statutory consequence by operation of law and it has no independent existence and if the detention is otherwise bad or is revoked by the Central Government, the declaration would automatically become ineffective. Therefore, on this ground the consideration of the representation by the Central Government cannot be said to be vitiated.

10. It was contended that the detaining authority the Additional Secretary to the Central Government has not sent the order of detention, grounds and all the facts and circumstances to the Central Government under Section 3(2) of the COFEPOSA Act. This contention is misconceived, because, under that provision the report is required to be made to the Central Government only when the detention order is made by the State Government or an officer empowered by the State Government and not when the order is made by an officer empowered by the Central Government.

11. It is also contended that the detenus had made representations both to the detaining authority as well as the Central Government and it is not shown as to who had considered the representation on behalf of the Central Government. In the affiavit in reply it has been pointed out that the representation made to the detaining authority was rejected by the detaining authority and the representation made to the Central Government was decided by the Minister of Revenue and Expenditure, Government of India who is empowered to decide the same under the Rules of Business. Therefore, this contention must fail.

12. The learned counsel for the detenus has further submitted that earlier detention dated, 9th June, 1983 for an earlier incident of 2nd February, 1983 was operative when the present proposal was made in July, 1983 and, therefore, there was no cause for detaining them when they were already under detention in respect of the smuggled goods worth two crores, and forty five lacs. In respect of that detention, the two detenus had preferred Special Criminal Applications Nos. 868 and 869 of 1983 and both these petitions were allowed by a judgment dated 6th September, 1983 and the detention orders were quashed on the ground that these detenus were not given the permission to get themselves represented by their advocate before the Advisory Board. Thus these detenus were released by the judgment dated 6th September, 1983. But the sponsoring authority pursued the present proposal for detention in respect of the present smuggling transaction of March, 1983, and the detaining authority on consideration of the material in respect of the incident of March, 1983 on being satisfied has passed the present order of detention. It cannot be said that the detention is vitiated because of the non-consideration of the earlier incident or release from the earlier detention. When the detaning authority considered the present detention it has not taken into consideration and the sponsoring authority has not supplied any material regarding the earlier incident. The detenus cannot make any grievance of the same because the facts of the earlier incident have not been taken into account. When the detaining authority passed the order of detention in the present case the detenus were neither in detention nor in custody and, therefore, if the detaining authority was satisfied about the need of detention at the time of passing the order of detention, it cannot be said that there was no case for such detention. Merely because during the three months of the detention under the previous order there was no possibility of smuggling it cannot be said that there was no cause for detention because of the second incident because at the time of passing the present order of detention, they were not under detention or in custody.

13. The learned counsel has also argued that the detenus were released on bail or anticipatory bail and there was no fresh incident. There was no attempt to get the bail concelled and there was no prosecution for 15 months and these facts have not been considered by the detaining authority. It is not correct to say that these facts have not been taken into consideration by the detaining authority. In fact, because these persons are not in custody that the need to detain them arises. The detaining authority is aware that the prosecution was not yet launched because in the detention order it has been stated that the prosecution is likely to be initiated. The bail applications and the orders thereon have also been taken into consideration and the time between the date of incident and the order of detention has also been taken into consideration. This aspect we have considered in the judgment in the connected matters and the contention has been rejected. It has been further argued in this connection that the fact that there detenus were granted bail shows that there was no valid reason to detain them. In this connection reliance was placed in the judgment of the Supreme Court in the case of Vijay Narayan Singh v. State of Bihar, (1984) 3 SCC 14 : AIR 1984 SC 1334. At para 32 at page 1345 it has been observed that the preventive detention is not intended for the purpose of keeping the man under detention when under ordinary criminal law it may not be possible to resist the issue of order of bail unless the material available is such as would satisfy the requirement of legal provision authorising such detention and when a person is enlarged on bail by competent court, great caution should be exercised in considering the validity of an order of preventive detention which is based on the very same challenge which has to be tried by the court. Thus the Supreme Court has not laid down that a person who is released on bail in same respect of the charge cannot be preventively detained. The emphasis is that greater caution should be exercised in such case. In the present case the facts as found by the detaining authority are eloquent. There is large scale organised smuggling operation. The purpose of bail pending trial is to see that the presence is secured at the trial whereas the purpose of preventive detention is to see that the person with a tendency to indulge in the prejudicial activity is effectively prevented from continuing such activity. Therefore, merely because the person is released on bail is no ground for contending that he cannot be detained at all. In the affidavit-in-reply, the detaining authority has effectively dealt with the contention in the following words:

“I say that the position that the material placed before me did not disclose that any untoward incident had taken place after the anticipatory bail order has been passed by the Sessions Judge, Jamnagar was present in my mind when I passed the detention order. I deny that reasonable nexus was not established and harm and danger rule did not come into play as alleged. I submit that the petitioner is not right in contending that a single solitary incident cannot be the basis of detention of the detenu. I submit that the material on the basis of which I have passed the detention order was sufficient to disclose the propensity of the detenu. I may point out that the magnitude of smuggling activity disclosed in relation to the occurrence in question and the nature of the activity disclosed therefrom shows that the petitioner's detention on this score is not correct.”

14. The further contention was that important particulars and documents have not been supplied. It has been contended that reference is made to one Tayab in the ground of detention, and to him active role is attributed. However, no particulars in respect of that person have been given. Reference to Tayab is to be found in the grounds of detention as revealed from the statements of various persons. That Tayab has not been traced and the only particulars which the authorities have are those contained in the statements and all of them have been given to the detenus. It is not the case of the detenus that the authorities had anything more with them and not supplied. Therefore, this contention is without any substance. Regarding the ambassador car, it is contended that the date and time are not specified. Sufficient details are found in the grounds of detention as well as in the documents. Here again it is not the case that any information which the authorities had with them, is not supplied. It is also submitted that the statement of one Bhagwanji is supplied. In that statement there is reference that though Bhagwanji had earlier refused to reveal anything as he was under threat. This earlier refusal and non-co-operation is taken by the present detenus as a previous statement and then it is contended that such previous statement is not supplied to them. It is not their case that such previous statement was recorded and was not supplied. In the statement of Bhagwanji his previous oral statement is referred to but it was not recorded and, therefore, there was no question of supplying the same. It was also contended that in the grounds of detention there is a reference to the information received by the Revenue Intelligence on the basis of which watch was kept and the contranband goods came to be detected and seized and ultimately above orders came to be passed. However, that information has not been supplied to the detenus. The gist of the information has been supplied to the detenus in the grounds of detention itself containing all the material particulars of that information. However, it is not on the basis of the information that the detention order came to be passed. The detention order came to be passed as result of the investigation and the detention of the smuggling activities. Moreover, the detaining authority has pointed out in the affidavit-in-reply that the detaining authority had considered it to be against public interest to disclose the information and relied on the provisions of Art. 22(6) of the Constitution. This is quite legitimate and the material facts and the gist of the information has been supplied to the detenu. Therefore, this contention also fails.

15. It has been further contended that the photographs of the detenus supplied along with the documents are very faint and therefore it is not possible to identify the persons from such faint photographs. We have been shown that compilation by the learned counsel for the petitioners. We have ourselves seen the zerox copies at pages 47, 68, 102 and 107 and we find that they are reasonably clear and it is possible to identify the person.

16. It is also contended that the statements of various persons alleged to be involved in the activities are involuntary as contended in ground No. 5 in the petition and it is further contended that there is no reply to this ground and therefore the averment of the petitioners should be accepted. The averment is a vague and general statement that the statements are involuntary. No reply is called for to such general averments. More specific averments have been made in grounds 15, 16, 25 and 27 of the petition and they have been replied and denied.

17. It has been further contended that after the amendment and substitution of Section 9 and consequential amendment in Section 8 of the COFFPOSA Act the Advisory Board can go into the question of validity of continued detention and, therefore, it was contended that the validity of the original detention cannot be gone into by the Advisory Board and on that ground it was contended that the petitioners were deprived of their right to represent before the Advisory Board against the original detention. This is clearly misconceived. The jurisdiction of the Advisory Board to go into the validity of the original detention is not taken away and the jurisdiction to go into the question of continued detention necessarily includes the question of original detention also. Therefore this contention also fails.

18. It is contended that the detenus are required to be ordinarily kept at a place as near as possible to the town of their residence. In this connection it would be open to the detenus to apply to the authorities and the authorities are bound to consider the same in accordance with law and having regard to the facts and circumstances of each detenu and the administrative and other exigency of the situation. However, no interference is called for by this court at this stage.

19. In the facts of Special Criminal Application No. 455/84 Ibrahim Umar Bhaya is the tindal of the fishing boat A1 Jena in which the contraband goods were transhipped from the Pakistani launch to the shore and his remuneration for that single night was Rs. 5000/-. He had knowingly participated in the smuggling activity and had abetted the smuggling of the goods. On facts it cannot be said that the subjective satisfaction of the authority is without materials and, therefore, no interference is called for.

20. In the facts of Special Criminal Application No. 456/84 the detenu is Elias Haji Ismail. He is the brother of Haji Haji Ismail the detenu in Spl. Criminal Application No. 457/84. Elias Haji Ismail is the person who arranged for the fishing boat and accompanied Ibrahim Umar Bhaya in the fishing boat to the Pakistani launch wherefrom the contraband goods were transhipped. He had supervised the transhipment and loading of the package in the trucks and he was maintaining contact over the walkie-talkie with his brother Haji Haji Ismail. His role in abetting Haji Haji Ismail is therefore crucial and material. The subjective satisfaction of the detaining authority cannot be said to be vitiated in any manner.

21. In Special Criminal Application No. 457/84 the detenu is Haji Haji Ismail, who is the master mind and who planned and organised the present Smuggling transaction worth about Rs. 60 lakhs. There is no reason to interfere with his detention.

22. In the result all the three petitions fail and rule is discharged in each one of them with no order as to costs. The learned counsel for the petitioners has made an oral application for leave to appeal to the Supreme Court under Art. 134(1)(c) of the Constitution. These petitions do involve important questions of law in the context of substituted Section 9 of the COFFPOSA Act and there was difference of opinion between us and having regard to the importance of the question, the question was required to be decided by the Full Bench and the Full Bench has decided that question. The question in respect of Section 9 is substantial question of law of general public importance and, therefore, we certify that the case is a fit one for appeal to the Supreme Court under Art. 134(1)(c) of the Constitution.

23. Writ also to be sent regarding page 18 to respondent No. 4

24. Rule discharged.

Jusab Haji Ismail v. State Of Gujarat And Others

Concise Analytical Summary of the Opinion (Mehta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondent / Detaining Authority's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jusab Haji Ismail v. State Of Gujarat And Others

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