Chandrakant Girdharlal Soni vs State of Gujarat

The petitioner detenu has been detained pursuant to order dated August 31, 1988 (Annexure-A) passed by the detaining authority (Additional

Chief Secretary to Government, Home Department, Government of Gujarat) under the provisions of Section 3(1) of the Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter refereed to as ""COFEPOSA""). The order has been passed with a view to

preventing the detenu from engaging in transporting smuggled goods. The order has been executed on September 5, 1988 and since then the

petitioner is under detention.

The grounds of detention served upon the petitioner-detenu disclose that on December 27, 1987, at Ahmedabad Railway Station, the

petitioner-detenu and Smt. Kantaben N. Rana when got down from Saurashtra Mail coming from Bombay were intercepted. They were taken to

Central Excise Office, Jivabhai Mansion, Ahmedabad. Personal search of both of them was taken. As a result of the search two pieces of gold

weighing 602.300 grams collectively valued at Rs. 1,93,639/- were found concealed in the sole of sandals worn by the detenu. Two small packets

containing gold powder were also found on his person. On weighing the gold powder recovered from two packet it was found to be 3.400 grams

collectively valued at Rs. 1092/-. Personal search of Smt. Kantaben N. Rana also resulted in the recovery of five packets containing ten pieces of

gold totally weighing 3026.600 grams and 0.400 milligrams. The gold powder collectively valued at Rs. 9,73,047/-. On examination of the gold

pieces and gold powder were and after testing the same, an experienced goldsmith opined that the gold pieces and powder were having purity of

23.5 carats and they were made by melting foreign made contraband gold indicating their foreign origin. The total weight of gold bars and gold

powder recovered and seized from the detenu and Smt. Kantaben Narandas was 3632.300 grams collectively valued at Rs. 11,67,778/-. The

said gold was seized under the relevant provisions of the Customs Act, 1962 and undue the Gold (Control) Act, 1968 under the belief that the

gold pieces were made by melting the smuggled gold.

Statement of the detenu was recorded on the same day i.e. December 27, 1987. In this statement the admitted that, on December 25, 1987, he

had gone to Bombay by luxury bus. Along with him he had taken Smt. Kantaben. He had reached Bombay on December 26, 1987 and he and

Kantaben had stayed at Purnima Guest House. From there he had contacted one person named Shri Ambalal who had asked him to go to his

(Ambalal''s) shop situated on the back side of Paidhani Police Station. The detenu reached there. There he was given four paper packets each

containing two gold pieces and Ambalal had told him that the gold pieces were made from melted foreign made smuggled gold biscuits. Thereafter

the detenu had returned to the guest house. After taking lunch he had spoken to one person named Babubhai on telephone and told Babubhai that

he was a man of Pravinbhai Soni of Ahmedabad. As per the instructions given by Babubhai he had gone to the corner of the foot path of Utensils

market in Bhuleshwar and collected ten foreign made smuggled gold biscuits from Babubhai which he had carried to Ambalal''s shop. Said Shri

Ambalal got the ten gold biscuits melted and prepared four gold pieces. This was done as per the instructions given by Pravinbhai Soni.

In the statement, the detenu further stated about his connections with Chandumama Vasowala alias Chandulal Ranchhoddas Chokshi of Devji

Sarayani Pole, Sankdi Sheri, Ahmedabad. Said Chandumama had instructed him in the morning of December 25, 1987 to got to Bombay and to

contact aforesaid Ambalal on telephone No. 330760 and bring melted gold which may be given by said Ambalal to him. He further stated that he

was to get remuneration of Rs. 5/- per tola of gold. As per the advice of said Chandumama he had taken one extra person with him, i.e. aforesaid

Smt. Kantaben. The detenu also stated that he had a talk with Pravinbhai Soni on telephone No. 381756 in Shethni Pole, Ratan Pole. The said

remuneration was to taken from said Pravinbhai.

In his statement he further admitted that since March, 1987 he was making such trips to Bombay and bringing smuggled gold biscuits. He

admitted that between March-April, 1987 to December 27, 1987 he had made sixteen trips and he had carried smuggled gold approximately

weighing 2400 tolas valued at Rs. 60,00,000/-. He further stated that said Kantaben had accompanied him to Bombay on four occasions and

Kantaben was being paid Rs. 150/- per trip as her remuneration, and fare amount etc. were being borne by the detenu. He further stated that

financial transactions were to take place between Chandumama and Pravinbhai. He further confirmed the contents of the statement of December

28, 1987.

Smt. Kantaben N. Rana has also given her statement on December 27, 1987. She stated that the detenu was known to her since childhood and

since last three to four months she was engaged in this gold smuggling business by the detenu and she had given her consent to do the smuggling

business. She has admitted her visits to Bombay on December 25, 1987 for bringing gold biscuits and powder, details of which have been given

hereinafter. She further stated that she had made such trip, three to four months back and had brought gold at that time also.

The grounds of detention also referred to statements of Chandulal Ranchhoddas Chokshi, Anil T. Desai, Manager of Purnima Guest House,

Bombay, Miss Pramila Ramesh More, Receptionist of Purnima Guest House, Bombay, and Shri Rameshchandra J. Trivedi, partner of Pavan

Travels, Ahmedabad, Shri Navin I. Panchal, Manager of Satyam Club, Bombay, Shri Ambalal Babubhai Soni, Shri Nandukumar Babulal Soni,

brother of Ambalal B. Soni and Shri Nainesh Chandulal Soni, son of Chandubhai R. Chokshi. It is disclosed in the grounds of detention that in all

the detenu had made 49 trips to Bombay during the last one year. The detenu used to land in Bombay in the morning, stay there for one day only,

and used to leave Bombay in the evening of the same day.

On the basis of the material placed before him the detaining authority formed subjective satisfaction to the effect that if the detenu is kept free he

would continue his prejudicial activity of selling and transporting smuggled gold. Therefore to prevent his prejudicial activity of engaging in

transporting smuggled goods the order of detention was necessary and hence the order of detention. The order of detention dated August 31,

1988 is produced at Annexure-A to the petition.

As stated in the petition the petitioner-detenu has challenged the legality and validity of his detention on various grounds. However, the learned

counsel for the petitioner has urged two points only. First point is regarding delay in considering representation.

(i) The petitioner detenu made representation dated February 20, 1989 addressed to the Additional Chief Secretary to Government, Home

Department, Sachivalaya (Special Branch, COFEPOSA), Gandhinagar. The said representation was submitted through the Superintendent,

Sabarmati Central Prison, on February 21, 1989. The representation has been decided and rejected and the petitioner has been informed

accordingly vide letter dated March 28, 1989. In view of the aforesaid factual position it is submitted that there is inordinate and unexplained delay

in considering the representation by the detaining authority. Therefore, the petitioner''s continued detention should be held to be illegal and void and

the petitioner should be set at liberty forthwith.

(a) The aforesaid ground has been taken in para 6(ii) and 6(vii) of the petition. Reply has been given by the detaining authority as well as the

sponsoring authority. That is to be found at page 102 para 6 and at page 105 para 2 of the compilation. The reply disclosed that the office of the

Additional Chief Secretary had received the representation on February 22, 1989. Since gold was seized, the office of the detaining authority

though it proper to call for the remarks from the Collector of Customs and therefore sent the said representation to the office of the Collector of

Customs and therefore sent the said representation to the office of the Collector of Customs and requested to offer comments. The Collector of

Customs forwarded the representation to the Deputy Collector of Central Excise for offering his comments. The Collector of Customs thought it

proper to adopt this course because the gold was seized by the Deputy Collector of Central Excise. The Deputy Collector of Central Excise

submitted his reply on March 8, 1989. The Collector of Customs was on tour from March 8, 1989 to March 16, 1989. When he returned, the

papers were placed before him and he in turn sent back the papers with his appropriate comments to the detaining authority who decided the same

on March 28, 1989. In view of the aforesaid factual position prima facie explanation was necessary with regard to the period commencing from

February 22, 1989 to March 8, 1989. This is the period taken by the Dy. Collector of Central Excise for offering his comments. Another period

which required explanation is between March 17, 1989 to March 28, 1989. As far as the second period between March 17, 1989 and March 28,

1989 is concerned it is an admitted position that there was holiday on March 19, 1989. As far as Collector of Customs is concerned, he sent back

the representation with appropriate remarks on March 17, 1989 itself. Therefore, from March 20 onwards the period is required to be explained.

There is no dispute with regard to the fact that March 22, 24, 25 and 26 were holidays. Thus, five days were holidays and the detaining authority

has taken decision on March 27, 1989 and the detenu has been informed on March 28, 1989. In above view of the matter it cannot be said that

there is unreasonable delay in considering the representation by the detaining authority. Thus the aforesaid period between March 17, 1989 and

March 28, 1989 stands satisfactorily explained.

(b) In view of the fact that there was no satisfactory explanation on record for the period commencing from February 22, 1989 to March 8, 1989

we had called for the explanation of the other side. On behalf of the Sponsoring Authority one Mr. V. K. Gajjar, Inspector of Customs,

COFEPOSA, has filed affidavit in reply explaining the delay. Therein, it is stated that on February 27, 1989 the file was put up before the Deputy

Collector for offering his comments. The Deputy Collector though that further inquiry was required to be made with regard to the financial

condition and the position narrated by the detenu in his representation. Further inquiry was made and the report was received on March 8, 1989

and on the same day the papers were sent back to the Collector of Customs. It is also stated in the affidavit-in-reply that 4th March and 6th

March were holidays being Saturday, Sunday and Mahasivaratri days. To satisfy ourselves we have also looked at the file and we are satisfied that

the Deputy Collector of Central Excise had made further inquiry as stated in the affidavit-in-reply sworn by Shri V. K. Gajjar and after the receipt

of said report, reply has been given to the Collector of Customs. In view of this position also the delay, even if there be any, stands satisfactorily

explained.

(c) At this stage the contents of the representation may be examined. The contents of the representation show that in sum and substance the detenu

narrated his pitiable position and requested for showing mercy and releasing him from detention. Ordinarily, the representation would be against

detention. But this particular representation/mercy petition contained averments regarding the detenu''s financial position and his pitiable position

and the consequent sufferings by his family members. In view of these circumstances, if the office of the Deputy Collector of Central Excise and the

office of the Collector of Customs though it fit to inquire about the actual financial position of the detenu then it cannot be said that they have

adopted as unusual or unnecessary course. In fact, that would show that the department had shown anxiety to see as to whether the financial

condition narrated in the representation was such that it required any sympathetic consideration or not. If that be so, the position may be explained

with appropriate remarks to the detaining authority. That appears to be the attitude adopted by the office of the Collector of Customs. It does

paper from the affidavit-in-reply filed on behalf of the Collector of Customs that the office of the Collector of Customs has considered the

representation as mercy petition and not as detaining authority. But that circumstance pales into insignificance in view of the fact that whatever

submissions made in the representation have been given due consideration even by the sponsoring authority and thereafter by the detaining

authority. The detaining authority has taken into consideration all the material placed before him i.e. the representation itself and the comments

offered by the Sponsoring Authority. Therefore the representation has been rejected and the communication thereof has been made to the detenu

as per letter dated March 28, 1989. Be it noted that the detenu has no right to make representation to the detaining authority as held by the

Supreme Court in the case of State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, . But we are not concerned with the

controversy either inasmuch as the detaining authority has considered the representation. Similarly, we are not concerned with the controversy as

to whether the representation made by the detenu is mercy petition or a representation against his detention and whether the principles laid down

by the Supreme Court in the case of Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, would be applicable or not. This is so

because we have considered the submissions made by the learned counsel for the petitioner-detenu on the basis that it is a representation against

detention and we have examined as to whether there is unexplained and inordinate delay in disposing of the representation or not. Therefore, we

are not considering the aforesaid decisions in details which have been cited at the Bar.

(d) Learned Counsel for the petitioner relied upon the decision of this High Court rendered in special Criminal Application No. 1109 of 1986

decided on December 23, 1986 (Coram : D.C. Gheewala and J. P. Desai, JJ). In the aforesaid decision there was delay of eleven days. The delay

was not at all explained by the appropriate respondent-authorities. In view of this unexplained delay it was held that the continued detention of the

detenu therein was required to be quashed and set aside. The decision turns on the facts of the case. No principle whatsoever is laid down in that

decision and, therefore, the decision cited does not help the detenu.

(ii) Learned counsel for the petitioner submitted that the show-cause notice u/s 124 of the Customs Act, 1962 and Section 79 of the Gold Control

Act, 1968 was served upon the petitioner-detenu asking him to show cause as to why the gold seized should not be confiscated and why they

should not be penalised under the relevant provisions of the Customs Act and the Gold Control Act. Learned Counsel for the petitioner submitted

that the petitioner-detenu had submitted reply to the aforesaid show-cause notice on 1-8-1988 (Annexure-E to the petition), but the said reply was

not placed before the detaining authority. Therefore, the relevant material which was favourable to the detenu has not been brought to the notice of

the detaining authority and hence the subjective satisfaction arrived at by the detaining authority stands vitiated. It is an undisputed position that the

reply submitted by the detenu to the show-cause notice has not been placed before the detaining authority has passed the order of detention

without going through the reply submitted by the detenu. However, we have examined the show-cause notice as well as the reply. The show-cause

notice has been issued by the Additional Collector, Customs (Preventive), while the reply has been addressed to the Additional Collector of

Customs. It has not been addressed to the Additional Collector of Customs (Preventive). Submission of reply to the authority/officer who has not

issued the show-cause notice is no submission of reply at all. There may be, and in fact there are, more than one Additional Collectors of Customs

working in the Customs House at Ahmedabad. Therefore, the reply submitted by the detenu might have gone to the Additional Collector of

Customs who might not be dealing with the preventive branch of the Customs Department. Unless it is shown that the detenu had submitted the

reply to the show-cause notice to the authority/officer issuing the show-cause notice the question of consideration or non-consideration of the same

by the Sponsoring Authority and placing the same before the detaining authority does not arise at all. In view of this factual position we need not

consider and we do not consider as to whether it was necessary for the Sponsoring Authority to place the reply to the show-cause notice before

the detaining authority or not. Therefore, this contention also fails.

No other contention is raised by the learned counsel for the petitioner.

There is no substance in the petition. The petition stands rejected. Rule discharged.