SUBHASH MULJIMAL GANDHIversusL. HIMINGLIANA AND ANR .

                   SUBHASH MUUIMAL GANDHI                                        A
                                v.
                    L. HIMINGLIANA AND ANR .

                           . AUGUST 26, 1994

             (P.B. SAWANT AND M.K. MUKHERJEE, JJ.)                               B

        ConseTVation of Foreign Etchange and Prevention of Smuggling Ac-
tivities Ac• 1974:

       Detenti011 ordei-Challenge at pre-execution stage-When pem1is-            C
sib/e--Power of court to inteifere with detnetion order prior to execu-
tion-Scope and e:>.1el!t of-Detmtion ordei-De/ay in execution-Effect of

      The respondent passed an order on August 23, 1990 under section
3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 to detain the appellant with a view to preventing him       D
from smuggling goods. On getting the information about the making of the
order the appellant filed a writ petition in the High Court challenging the
same and it was dismissed.

       In appeal to this Court it was contended on behalf of the appellant       E
that the grounds of detention, and scope of challenging detention order at
pre-execution stage, given by this Court in Addi. Secretary, Govt. of India
v. A/ka Subhash Gadia, (1992) Supp. 1 S.C.C. 496 were not exhaustive but
illnstrative; (ii) that the detention order was passed 'for a wrong purpose',
namely, to harass and humiliate the appellant by concocting a false case
of smnggling, based primarily on a confession obtained from him after            F
snbjecting to him to assault, illegal detention and extortion; (iii) there was
abuse of extraordinary constitutional power by the State machinery be-
cause the appellant was not produced before the Magistrate within 24
hours and (iv) the detention order was passed long back and the maximum
period of detention which the appellant wonld have undergone i.e. 2 years        G
was long over and therefore his detntion now wonld be pnnitive and not
preventive.

      Dismissing the appeal, this Court

      HELD : 1. The order of detention is not made for a purpose ex- H
                                     785
     786                  SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A    traneous to the provisions of COFEPOSA. The detaining authority has
     denied the allegation of assault and extortion and have stated in their
     affidavit-in-reply that there was no breach of constitutional or legal
     provision as the petitioner was produced before a competent court within
     24 hours of his formal arrest. Needless to say these are disputed questions
     of fact, which this Court cannot entertain much less delve into or decide
B    upon. In any case, the said fact even if true cannot vitiate the order of
     detention. [791-F-C, 792-A]

           2. Even if it is held that the explanation offered by the respondents
     for delayed production is not a satisfactory one and that the Customs
C    Officers have failed to comply with constitutional and statutory requfre-
     ments, the order of detention, which has been made by the detaining
     authority on the basis of its satisfaction that the petitioner.was smuggling
     gold, would not be bad on that score. The appellant, however, would be
     certainly entitled to seek appropriate relief by way of compensation or
 D otherwise in case he succeeds in proving that he was wrongfully and
     illegally detained. [791-G-H]

            3. In Alka Subhash Gadia's case this Court has expressly laid down
     that the grounds of interference with detention orders at pre-execution
     stage have to be limited in scope and number as mentioned therein.
'E   However, the other contingencies, if any, must be of the same species as of
     the five contingencies referred to therein. [790-F, 791-B]

          Addi. Secy. Govt. of India v. Alka Subhash Gadia, [1992] Supp. 1
     S.C.C. 496 and N.K Bapna v. Union of India, [1992] 3 S.C.C. 512, relied
 F   on.

            4. It is undonbtedly true that an unusual delay in execution
      of an order of detention if not satisfactorily explained, may persuade the
      Court to draw an inference that the order is punitive and not preventive.
      There is, however, no scope for drawing such an inference in this case as
 G the delay here has been occasione<I not by any omission or commission on
     the part of the detaining authority. On the contrary, it is the appellant who
     has delayed the execution by first moving the High Court and then this
     Court. [792-E]

 H         Bhawarla/ v. Stale of T.N., (1979] 1 S.C.C. 465, referred to.
        S.M. GANDHI v. L. HIMINGLIANA [M.K. MUKHERJEE, J.]              787

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                     A
540 of 1994.

     From the Judgment and Order dated 1.10.90 of the Bombay High
Court in W.P. Cr!. No. 1083 of 1990.

      Ram J ethmalani, Ms. Lata krishnamoorthy and Abani Kumar Saha            B
for the Appellant.

      N.N. Goswami, A. Subba Rao, C.V. Subba Rao and Ms. Sushma Suri
for the Respondents.

      The Judgment of the Court was delivered by                               c
      M.K. MUKHERJEE, J. Special leave granted.

      This appeal is directed against the order dated October 1, 1990
passed by the Bombay High Court in Writ Petition (Crl.) No. 1083 of 1990.
                                                                               D
       On August 23, 1990, the Secretary (Preventive Detention) to the
Gvoernment of Maharashtra, the respo_ndent No.1 herein, made an order
under section 3(1) of the Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act, 1974 ('COFEPOSA' for short) to detain
the appellant with a view to preventing him from smuggling goods. On           E
getting information about the making of the order the appellant filed a writ
petition in the Bombay High Court challenging the same and having failed
there moved this Court by filing the special leave petition. To the petition
the appellant has annexed, amongst other documents, purported copies of
the order of detention and the grounds on which it is based though it is
not quite clear how he came by them. The respondents, however, contend         F
that the appellant obtained those copies clandestinely for they were to be
served upon him only on detention. However, this aspect of the matter
need not detain us as the respondents have not assailed the authenticity of
those copies.

      Before we proceed to consider the contentions raised by Mr. Jeth-        G
malani, the learned senior counsel appearing in support of the appeal, we
may profitably refer to the factual allegations made in the grounds of
detention so far as they are relevant for our present purposes. It is first
stated therein that in the early hours of May 22, 1990 when Cathay Pacific
Flight No. CX 750 arrived at the Sahar Airport, Bombay, some Customs           H
    788                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A Officers accosted the appellant, who had come from Dubai, inside the
    aircraft in presence of two panchas and asked· whether he was carrying
    gold. Initially he answered the question in the negative but when the
    Officers touched his person and felt some hard substance below his waist
    belt he admitted having concealed gold bars tied around his waist. He was
    then taken down to the Customs Baggage Examination Hall and from there
B   to the S.D.O's room in the Hall. There, on search, three cotton hells tied
    around his body were recovered. Each 0f the three belts was found tu
    contain 60 gold bars, each weighing 10 tolas, and bearing foreign markings.

          The grounds of detention then detail the statement, the appellant
C   made to the Customs Officers on that day whereform it appears that he
    not only admitted that he brought the seized 180 gold bars from Dubai but
    earlier also on May 15, 1990 he had illegally imported 120 gold bars from
    Dubai. In the statement he also disclosed the names of the persons who
    were involved in the transactions. Another statment made by the appellant
D   on May 24, 1990 regarding his modus operandi of smuggling the gold has
    next been ·incorporated in the grounds of detention. The grounds of
    detention then recite that on May 24, 1990 the appellant was arrested and
    on May 25, 1990, when he was produced before the Addi. Chief
    Metropolitan tv1agi~trate, Bombay, he made a statement. The statement so
    made has _also been reproduced in the grounds of deten!ion.
E
           The appellant's version of the incident as disclosed in that statement
    is that after he was brought down from the aircraft,. he WdS allowed to take
    out his baggage and then leave the airport. While he was waiting outside
    he was brought back and taken to the S.D.0.'s office where he found cotton
F   belts lying on the table. Then and there the Customs Officers asked the
    appellant about the gold to which he replied that it did not belong to him.
    Then the Officers started assaulting him and tying the belts around his
    body. During the process he became unconscious. It is next stated in the
    grounds that Addi. Chief Metropolitan Magistrate while remanding the
    appellant into judicial custody ordered his medical examination. Pursuant
G   thereto he was examined by the Chief Medical Officer of the Bombay
    Central Prison Hosptial and his report indicated that he had suffered
    injuries. The Customs authorities, however, denied the allegations of
    assault ;nade by the appellant.

H         According to the detaining authority, from all the facts stated in the
         S.M. GANDHI v. L. HIMINGLIANA [M.K. MUKHERJEE. J.]               789

 grounds of detention, it was e\ident that the appellant smuggled massive        A
 quantity of gold to India for the second time and he was likely to continue
 to do so for which it was necessary to detain him.

       The question as to whether a detenu or anyone on his behalf is
entitled to challenge an order of detention without the detenu submitting
or surrendering to it and, if so, what will be the nature, scope and extent      B
of such challenge came up for consideration before a three-Judge Bench
of this Court, of which one of us (Swant J.) was a member, in Addi. Secy.,
Govt. of India v.Alka Subhash Gadia, (1992) Suppl. 1SCC496. The Court,
after striking a balance between the competing claims of the individual to
his liberty and of the State to detain an individual to safeguard the interest   c
of the society and on a conspectus of the decisions of this Court and of
different High Courts on the subject, answered the question with the
following words :

         "It is not correct to say that the Courts have no power to entertain    D
         grievances against any detention order prior to its execution. The
         courts have the necessary power and they have used it in the proper
        cases as has been pointed out above, although such cases have
         been few and the grounds on which the courts have interfered with
        tltem at the pre-execution stage are necessarily very lintited in scope
        a11d 11umber, viz., where the courts are prima fade satisfied (i) that E
         the impugned orders is not passed under the Act under which it
        is purported to have been passed, (ii) that it is sought to be
        executed agsinst a wrong person, (iii) that it is passed for a wrong
        purpose, (iv) that it is passed on vague, extraneous and irrelevant
        grounds or (v) that the authority which passed it had no authority
                                                                                F
        to do so. The refusal by the courts to use their extraordinary
        powers of judicial review to interfere with the detention orders
        prior to their execution on and other ground does not amount to
        the abandonment of the said power or to their denial to the
        proposed detenu, but prevents their abuse and the perversion of
        the law in question."                                                   G

                                                        (emphasis supplied)

       Mr. Jethmalani first contended that the five contingencies referred
to in the above quoted passage were not exhaustive but illustrative as there H
    790                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A might well be other contingencies in which- pre-execution challnenge to
  the order of detention would be permitted. In elaborating his contention
  Mr. Jethmalani submitted that in the case in hand there were sufficient
  materials to prove that the Customs Officers concocted a false case of
  smuggling against the appellant after beating him, keeping him in illegal
B custody for three days and coercing him to make a confessional statement.
  In support of this submission, Mr. Jethmalani first drew our attntion to the
  report of the doctor of the Jail Hospital submitted on June 2, 1990 to the
  Chief Metropolitan Magistrate regarding medical examination of the ap-
  pellant which indicate that the doctor found some bruises and abrasions
  on his person and he complained of pain on his body. Mr. Jethmalani then
c drew our attention to the fact that though the appellant was apprehended
  in the early hours of May 22, 1990 and was thus constitutionally and
  statutorily required to be produced before the nearest Magistrate latest by
   May 23, 1990 he was kept unlawfully detained till May 25, 1990 when the
  Customs authorities produced him in Court. Mr. Jethmalani submitted that
D as these facts unmistakably demonstrated the misuse and abuse of extraor-
   dinary constitutional powers by the State machinery this Court would not
   allow the liberty of a victim of exercise of such powers to be taken away
   even if the parameters mentioned in A/ka Subhash Gadia' did not apply in
   this case. Even otherwise, Mr. Jethmalani urged, the facts herein clearly
E made out a case for interference by this Court. under ctegory (iii) men-
   tioned in the above quoted passage in Alka Subhash Gadia, namely that
   the impugned order was passed for a wrong purpose.

           Having given our anxious consideration to the above contention of
     Mr. Jethmalani, we are unable to accept the same. In the passage, earlier
F
     quoted from Alka Subhash Gadia, this Court has expressly laid down that
     the interference with detention orders at pre= execution stage has to be
     limited in scope and number as ml!ntioned therein. The Court has
     reiterated the saJl1e view as well be e:vident from the following further
     observations made in that case :
G
             ".......... in the rare cases where the detenue, before being served
             with them, learns of the detention order and the grounds on which
             it is made, and satisfies.· the Court of their existence by proper
             affirmation, the Court does not decline to entertain the ~it peti-
H            tion .even at the pre-execution stage, of course, on the very limited
        S.M. GANDHI v. L. HIMINGLIANA (M.K. MUKHERJEE, J.]                     791

        grounds stated abvoe."                                                        A
                                                           (Emphasis supplied)

       The abvoe principles laid down in Alka S11blraslr Gadia have been
quoted \\ith approval by another three-Judge Bench in N.K. Bap11a v.
Union of flldia, [1992] 3 SCC 512. Bound as we are by the above judgments, B
we must hold that the other contingencies, if any, must be of the same
species as of the five contingencies referred to therein. Coming now to Mr.
Jethmalani's submission, that the detention order was passed 'for a wrong
purpose', namely, to harass and humiliate the appellant by concocting a
false case of smuggling, based primarily on a confession obtained from him C
after subjecting to him to assault, illegal detention and extortion we find
that the detaining authority has denied the allegations of assault and
extortion. Needless to say these are disputed questions of fact, which we
cannot entertain much less delve into or decide upon. In any case, the said
fact, even if true cannot vitiate the order of detention. As regards the
allegati0n of illegal detention, the respondents have drawn our attention to D
the following lines in paragraphs 10 of their affidavit-in.-reply:

        ".............. the petitioner was allowed to stay in the Air Intellige_ncy
        Office as ·the investigation had to be done to find out the
        whereabouts of the receiver of the contraband gold, the informa-              E
        tion of which was given by the petitioner to me and other inves-
        tigating officers during the course of interrogation. The petitioner
        was interrogated only and not arrested as alleged by him. The
        petitioner was arrestee! only on 24.5.90 and produced before Chief
        Metropolitan Magistrate on 25.5.90."
                                                                                      F
to contend that there was no breach of constitutional or legal provision as
the petitioner was produced before a competent court within 24 hours of
his formal arrest. In our considered view, even if it is held that the above
explanation offerecl by the respondents for delayed production is not a
satisfactory one and that the Customs Officers have failed to comply with
constitutional and statutory requirements, the order of detention, which has G
been made by the detaining authority on the basis of its satisfaction that
the petitioner was smuggling gold, would not be bad on that score. The
appellan~ however, would be certainly entitled to seek appropriate relief
by way of compensation or otherwise in case he succeeds in proving that
be was wrongfully and illegally detained. For the foregoing discussion, we H
    792                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A are unable to hold that the order of detention is made for a purpose
    extraneous to the provisions of COFEPOSA.

          Mr. J athmalani ne~t contended that the utter absurdity of the allega-
    tion of smuggling made against the appellant would be borne out by the
    photographs which were taken at the instance of the Customs Officers al
B   the time of the appellant's apprehension as they would clearly show that it
    was impossible for him to zip up his trousers, with three belts, tied, each
    containing 60 pieces of gold, weighing 10 tolas each, around his waist.
    Though this factual submission was not a relevant consideration at this
    stage in the context of the principles laid down in Alka Subhash Gadia we
C   had, to satisfy our judicial conscience, called for and saw all ihe
    photographs carefully. Having done so we are constrained to say that Mr.
    Jethmalani's submission in this regard was based on wrong instructions.

          Mr. Jethmalani lastly submitted that having regard to the fact that
    the order of detention was passed as far back as in 1990 and the maximum
D. period of detention, which the appellant would have to undergo under the
    order was two years, was long over, his detention at this distant pomt of
    time would be punitive and not preventive. It is undoubtedly true that an
    unusual delay in execution of an order of detention if not satisfactorily
    explained, may persuade the Court to draw such an inference. There is,
E _however, no scope for drawing such an inference in this case as the delay
  . here has been occasioned noil by any omission or commission on the part
    of the detaining authority. On the contrary, it is the appellant who has
    delayed the execution by first moving the Bombay High Court and then
    this Court. That apart, the respondents have asserted that though this
    Court had not passed any interim order against execution of the order, it
F could not be served as the appellant was absconding. It is pertinant to point
    out here that an identical contention raised by Mr. J ethmalani on similar
    facts was negatived by this Court in Bhawarlal v. State of T.N., (1979] 1 SCC
    465.

           On the conclusions as above, we dismiss the appeal.
G
    T.N.A..                                                   Appeal dismissed.