SUPREME COURT OF INDIA
Sheetal Manoj Gore
Vs
State of Maharashtra and Others
Writ Petition (Criminal) No. 26 of 2006
(B. P. Singh and R.V. Raveendran, JJ)
21.08.2006
B. P. SINGH, J.
The instant Habeas Corpus petition has been filed by the petitioner Sheetal
Mnoj Gore, (The Deetnu) impugning the order of detention passed under Section
3(1) of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 on January 27, 2006. The order of
detention has been challenged mainly on three grounds namely, delay in passing
the order of detention, non-application of mind by the detaining authority and
supply of documents in a language which he did not understand.
2. According to the petitioner, the detenu is the proprietor of M/s. Manoj
Enterprises. It is stated in the impugned grounds of detention that the detenu
acted as an agent of some exporters and was found to be involved in fraudulent
exports made by those exporters. On a perusal of the order of detention it
would appear that goods seized were found to be mis-declared as to their nature
and value. Some of the seized goods were goods cleared without payment of
Central Excise duty from factories declaring them as meant for export but
diverted to local market. In the corresponding airway bills the goods were
described as "Industrial Raw Material" as against their specific
names. On a consideration of all the material placed before her the detaining
authority was satisfied that the petitioner had played a very crucial role in
perpetuating the whole fraud on the revenue along with two others. The detenu
had, therefore, actively aided and abetted the smuggling of the goods as
defined by Section 2(39) of the Customs Act, 1962,
and as adopted in the COFEPOSA Act, 1974 vide Section 2(e) thereof. Considering
the nature and gravity of the offence and the well organized manner in which
the detenu was engaged in prejudicial activities, with a view to prevent him in
future from abetting smuggling of goods, it was necessary to detain him under
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974.
3. It is the case of the petitioner that the first statement of the detenu was
recorded under Section 108 of the Customs Act by the officers of the DRI on
March 29, 2005. Thereafter, several statements of his were recorded, the last
on April 28, 2005.Similarly, the statements of his accomplices were also
recorded between March and June, 2005. The detenu was arrested on March 30,
2005 in connection with a criminal case registered against him but he, as well
as one of his accomplices, was released on bail on April 12, 2005. On January
10, 2006 the impugned order of detention was passed.
4. Shri Uday U. Lalit, learned senior counsel appearing on behalf of the
petitioner submitted that there was an inordinate delay in passing the order of
detention which resulted in snapping of the live link between the acts
complained of and the order of detention. He submitted that the prejudicial
activity of the detenu must have come to the notice of the detaining authority
some time in March, 2005, but the order of detention was passed 1C months
later. If there was really any material to support the allegations against the
detenu, and there was urgency in the matter, the detaining authority could not
have waited for so long before passing he order of detention. He further
submitted that the detaining authority who passed the impugned order namely,
Smt. Chandra Iyengar, was empowered under Sec. 3(1) of the COFEPOSA Act, 1974
to act as a detaining authority by the State Government of January. 10, 2006
Before her one Ms. Neela Satyanarayana was empowered under Section (3) (1) of
the Act to act as the detaining authority. She had been so empowered on June 3,
2003 and continued as such till January 9, 2006. She must have received the
proposal for the detention of the detenu between April 12, 2005 and September
12, 2005 that is the date of release of the detenu on bail and the date of
receipt of further generated documents as mentioned in para 28 of the impugned
grounds of detention. Despite this Neela Satyanarayana did not issue any order
of detention against the detenu. It appeared from the record that on October
21, 2005 she had made an endorsement for issuance of detention orders against
the detenu and others, but no such orders were issued. The impugned order of
detention was issued by Smt. Chandra Iyengar, who was empowered to act as the
detaining authority under the Act only on January 10, 2006 and who issued the
impugned order of detention on January 27, 2006. It was, therefore, submitted
that from March, 2005 till January, 2006 no order of detention was passed and
this inordinate delay in issuing the order of detention itself established that
there was no urgency in the matter neither was there material to reach the
alleged subjective satisfaction, nor was it necessary to detain the detenu
under the provisions of the Act.
5. The detaining authority filed a very detailed affidavit in reply explaining
the steps taken during this period. She explained that the proposal for the
issuance of an order of detention was processed during the tenure of her
predecessor and thereafter during her tenure. The processing of such proposals
is a continuous process and every effort is made to see to it that necessary
steps and the procedures prescribed are legally followed by the detaining
authority. The statement of the detenu under Section 108 of Customs Act, 1962 was recorded on March 30, 2005 where in
he disclosed about the nature of his job and his involvement as also the
involvement of others, and the role played by him in the exports detailed in
the grounds of detention. From the perusal of the documents, it was revealed
that from January, 2003 to March, 2005, the concerned firms indulged in exports
of various bulk drugs and formulations. The detenu had played a crucial. Role
in clearing and substituting the original goods with cheap talc; in preparing
Airway Bills and Bills of Lading with misleading description of
"industrial raw material" against specific description of goods in
respective export documents; in clearing the substituted goods, in coordinating
such exports with agencies/persons as per plan, all for a consideration. After
considering these prejudicial activities of the detenu, the sponsoring
authority first forwarded the proposal to the Screening Committee for its
approval. The Screening Committee in its meeting held on June 14, 2005 approved
the said proposal. Thereafter, the sponsoring authority forwarded the proposal
to the office of the then detaining authority which was received on July 7,
2005. The detaining authority found that the complete set of documents were not
enclosed and therefore, complete set of documents was called for from the
sponsoring authority on July 11, 2005 which was forwarded on the same day. The
proposal ran into 778 pages, and apart from the detenu, there were proposals
for detention of two other persons involved. While the scrutiny was undertaken,
further generated documents were received on September 12, 2005. A detailed
note was prepared and put up on September 26, 2005. A detailed note was
prepared and put up on September 26, 2005 which was forwarded to the Under
Secretary on the same day. The Deputy Secretary prepared his note and gave his
endorsement on October 20, 2005 and forwarded it to the then detaining
authority. The then detaining authority instructed her office to make a chart
stating the extent of involvement of each of the three proposed detenus and the
role played by them. Accordingly, a note was prepared and submitted on the next
day before the Under Secretary who immediately forwarded it to the Deputy
Secretary, who after giving his endorsement forwarded the file to the then
detaining authority. On October 21, 2005, the then detaining authority gave her
endorsement with instruction to issue orders in respect of all three detenu. In
the meantime, further generated documents were received from the sponsoring
authority on November 18, 2005 apart from receipt of pre-detention
representations made by the petitioner on November 24, 2005 and November 25,
2005. The file was submitted before the Under Secretary on November 29, 2005,
who after giving his endorsement forwarded it to the Deputy Secretary on November
29, 2005. The remarks of the sponsoring authority were called on the
representations which was forwarded by the sponsoring authority on Deember 13,
2005. In the meantime, the sponsoring authority forwarded further generated
documents on December 13. 2005 and December 25, 2005. A detailed note was again
prepared on January 6, 2006 and was put up for approval before the Under
Secretary on the same day. The Under Secretary gave his endorsement and
forwarded it to the Deputy Secretary who gave his endorsement on January 7.
2006. The deponent was empowered as the detaining authority by order dated
January 10, 2006. The proposal was placed before her and after careful
consideration of the representations the same were rejected on January 18,
2006. Thereafter the sponsoring authority again forwarded further generated
documents on January 20, 2006. The wife of the detenu also sent a
representation of January 20, 2006. The representation and the generated
documents were again considered in the Department and thereafter the
representation was rejected on January 25, 2006. The generated documents were
also processed and the matter put up before the detaining authority. She made
her endorsement on January 25, 2006 and also reconstructed and reformulated the
grounds of detention which were got typed and approved on January 25, 2006. The
approved draft grounds of detention alongwith the fair copies were placed
before her on January 27, 2006 and after carefully going through the papers and
after being subjectively satisfied that the order of the detention against the
detenu was justified, the order of detention was issued on January 27, 2006.
6. It will thus appear that the detaining authority has given a very detailed
and vivid account of the manner in which the file was dealt with in the Home
Department of the Government of Maharashtra. It will appear that the sponsoring
authority had collected large volume of evidence, which required to be
examined. At the same time, several representations were received from time to time
which also required to be considered at various levels. In the meantime the
sponsoring authority had also collected more documents which it had sent to the
office of the detaining authority. All this took time. Therefore, it is not as
if the detaining authority was oblivious of the importance and urgency of the
matter. The detailed account given by her shows that the matter was being
continuously processed and considered. It was on account of the consideration
of voluminous material which was received at different stages that some time
was consumed.
7. We are satisfied that there was no delay on the part of the authorities in
taking necessary steps in connection with issuance of the order of detention.
Moreover, the time taken in completing the process for issuance of order of
detention has not to be tested applying the same standard as is applied in the
matter of consideration of representation of a detenu. This Court in several
judgments has emphasized the promptness with which the concerned authority must
deal with representation received from the detenu. The right to represent and
its fair and prompt consideration by the concerned authority is constitutional
right guaranteed to a detenu. The authorities dealing with such representations
must be aware of the fact that the detenu is languishing in custody without a
trial. Their conduct must, therefore, disclose a consciousness of the urgency
in the matter. The norm and standards laid down by this Court in the matter of
consideration of the representation of a detenu, cannot be strictly applied to
the case of processing of a proposal for detention of a person under the Act.
No doubt, if there inordinate delay in issuing the order of detention, it may
well be argued that the live link between the prejudicial activity of the
detenu and the purpose for which order of detention is issued is snapped, and
being stale there was no justification for issuance of an order of detention.
In the facts and circumstances of this case, we are satisfied that the details furnished
by the detaining authority provide sufficient explanation for the time taken in
issuing the order of detention. We are also satisfied that the detaining
authority was conscious of the fact that the matter required immediate
attention, but in view of the voluminous record which had to be scanned and
scrutinized before issuance of the order of detention, the order could not be
issued earlier.
8. There is one other reason which explains why the order of detention could
not be issued earlier. We have been informed that the petitioner had moved the
High Court and obtained an order of stay on June 30, 2005. Such an order was
passed in view of the fact that an application for compounding of the offence
was pending and it was, therefore, prayed that pending consideration of that
application, no such proceedings should be resorted to. It appears that the
said order was modified on October 19, 2005. This also explains why the order
could not be passed earlier and only after the order could not be passed earlier
and only after the order was modified, the then Detaining Authority had made an
endorsement for the issuance of order of detention, but the same could not be
issued immediately for the reasons explained by the Detaining Authority. We,
therefore, find to substance in the first submission urged on behalf of the
petitioner.
9. The second submission urged on behalf of the petitioner relates to non-
application of mind by the detaining authority. It was submitted that the
detaining authority, who issued the order of detention took charge on January
10, 2006. She issued the order of detention on January 17, 2006. In between
there were some holidays and, therefore, the working days were reduced to 12.
From the counter affidavit filed on behalf of the detaining authority, it
appears that the documents ran into about 2000 pages. The detaining authority
had other responsibilities to shoulder in the Home Department and having regard
to the nature and volume of work handled by such officers it was hardly
possible for her to consider all the material on record and to reach the
requisite subjective satisfaction in the matter. If the earlier detaining
authority could not issue the order of detention for several months, it was
surprising that the present detaining authority performed the same job in just
a few days. Apparently, therefore, the detaining authority issued the order of
detention in great haste and without application of mind. She signed the order
of detention on the grounds which were perhaps prepared by her predecessor.
10. The detaining authority has replied to these allegations. She has asserted
that as a detaining authority she considered the relevant material and only
after being subjectively satisfied that it was necessary to issue the order of
detention, -she issued the order of detention. She had herself formulated the
grounds of detention and the grounds alongwith documents were furnished to the
detenu. She has denied that due to work assigned to her hardly got any time to
apply her mind to the proposal and the documents and to formulate the grounds
of detention on the basis of the material collected. She has denied the
allegation that she could not have issued the order of detention within such
short period and that she had issued the order in great haste, without
application of mind, and signed the grounds of detention prepared by others.
She has stated that processing of proposal for issuance of detention order was
a continuous process undertaken by the detaining authority. It was firstly
undertaken by Neela Satyanarayana and from January 10, 2006 by the deponent.
11. We are not impressed by the arguments advanced on behalf of the petitioner,
The order of detention was not prepared overnight. As explained by the
detaining authority it is a continuous process. The proposal of the sponsoring
authority is first examined by the Screening Committee and thereafter by the
officers of the Home Department at various levels. The material collected is
then placed before the detaining authority for its consideration. In this case
the sponsoring authority had made a proposal much earlier, but from time to
time further generated documents were being dispatched to the detaining
authority which were considered by the detaining authority. There is really no
basis for the assertion that the detaining authority without applying her mind
passed the order of detention.
12. Learned counsel submitted that detaining authority in all probability, had
signed the grounds of detention which had earlier been prepared by her predecessor.
The submission is based on the fact that in paragraph 28 of the ground it is
stated as follows:-
"While scrutinizing the proposal and relief upon documents I received
further generated documents on 12-09-2005, 13-12-2005, 23-12-2005 and
20-01-2006 I also received representations dated 24-11-2005, 25 -11 -2005 and
20-01 -2006 made by Mrs. Sheetal Manoj Gore on behalf of you. Before passing
the detention order I have considered all documents and all
representations".
13. The submission is that the documents referred to therein except those dated
January 20, 2006 were received before the detaining authority was empowered to
act in that capacity. The averment is so worded as to give the impression that
the detaining authority had herself received the documents generated between
the months of September and December, 2005. It was submitted that in all
likelihood this paragraph was simply copied form the earlier draft grounds of
detention which may have been prepared by the then detaining authority. We find
no substance in the submission. A mere reading of the paragraph discloses that
it also refers to documents received on January 20, 2006. This itself
establishes that the detaining authority must have applied her mind to the
documents mentioned therein, because if it had not done so, there could be no
reference to the documents dated January 20, 2006 in the grounds of detention,
since those did not exist when the earlier detaining authority may have
finalized the draft grounds of detention. This completely demolishes the charge
of the detaining authority acting mechanically. We entertain no doubt that the
detaining authority did apply her mind to the material on record and only on
being subjectively satisfied about the compelling necessity to issue the order
of detention, issued the order and grounds of detention. It may be that she
also considered the draft grounds of detention which may have been prepared by
the earlier detaining authority, but that by itself will not vitiate her order
if she applied her mind to the relevant material on record and recorded an
independent subjective satisfaction on the basis thereof. In the fact and
circumstances of this case, we are satisfied that the detaining authority did
not proceed to issue the order of detention mechanically on the basis of the
subjective satisfaction of her predecessor, but applied her mind to the
material on record and independently reached the subjective satisfaction that
it was necessary, in facts of the case, to issue the order of detention. The second
submission urged on behalf of the petitioner is also rejected.
14. The last submission urged on behalf of the petitioner is that translated
copies of all documents, statements and other materials were not furnished to the
detenu within the statutory period of five days. The documents served upon the
detenu were in the English language which he did not understand. Some letters
written by the wife of the detenu to the authorities much before the order of
detention was served disclose that the detenu did not know the English language
and was only conversant with Marathi and Hindi languages. There was thus a
breach of Article 22(5) of the Constitution of India. For this reliance was
placed on the decision of this Court reported in Ibrahim Ahmad Batti v. State
of Gujarat and others[. . We may at the threshold notice that this
decision was reconsidered by a larger bench of this Court in State of Rajasthan
and another etc. v. Talib Khan and others etc 2
which overruled the decision in Batti's case. However, having regard to the
facts of this case, it is not necessary for us to consider the legal submission
urged on behalf of the detenu.
15. It is not in dispute that the order of . detention was served on the detenu
on January 30, 2OO6.While receiving the order of detention and other documents
served therewith the detenu made an endorsement on each page acknowledging
receipt the documents. No doubt there is an endorsement in Marathi but what is
significant is that he has signed in English. On the following day the detenu
no doubt sent a letter to the detaining authority through the Jail
Superintendent that the order of detention and the grounds of detention
supplied to him were in English language which he did not understand. He, therefore,
requested that he may be supplied all those documents translated in Marathi.
Thereafter, on 10th February, 2006 i.e., within 10 days the translated
documents were made available to him. There is ample material on record to
establish that the detenu in fact was conversant with the English language and
corresponded with the authorities in that language. The authorities, therefore,
had no reason to suspect that he did not know the English language. One such
document on record is a letter addressed by him to the Directorate of Revenue
Intelligence which is dated 24Ih December, 2005. The letter is written in the
English language and signed by the petitioner in English. Counsel sought to
explain this letter saying that the letter contains legal submissions and,
therefore, that may be a letter drafted by his advocate and only signed by the
detenu. However, there is also another letter of 18lh January, 2006 written to
the Senior Intelligence Officer, DRI Mumbai notifying his change of address.
This letter is also in the English language and signed by him in English. There
is, therefore, material on record to establish that the petitioner understands
the English language and has been corresponding with the authorities in that
language. Moreover, if one were to notice the manner in which he was conducting
his export business, it would leave no manner of doubt that having regard to
the large number of documents to be filed and required to be filled, he could
not have conducted his business on such a large scale without being conversant
with the English language. He has signed all documents in English.
16. It was urged before us that two representations by the wife of the detenu
were submitted before the order of detention was served in which it was stated
that the detenu did not understand the English language. Those documents are
not before us and, therefore, we wish to make no observation in that regard. On
the basis of the material before us we are satisfied that the detenu knows the
English language and, therefore, service of the documents upon him in the
English language did not breach Article 22 (5) of the Constitution of India.
However, by way of abundant caution translated copies of documents were
provided to him within 10 days of his request. We, therefore, find no merit in
the last submission urged on behalf of the detenu.
17. Counsel for the petitioner then sought to urge before us that there was
abnormal delay in this disposal of the representation and, therefore, the
detention has become bad. The writ petition was filed soon after the order of
detention was served on the detenu. The delay in the disposal of the
representation was not subject of challenge in the writ petition. We are,
therefore, not persuaded to examine that aspect of the matter. If so, advised
the detenu may challenge the order of detention on that ground in separate
proceedings.
18. We, therefore, find no merit in any of the contentions urged before us.
This writ petition is devoid of merit and is accordingly dismissed.