MEENABEN THAKORBBAI PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is the wife of one Thakorbbai Dahyabhai Patel (hereinafter to be referred as Tthe detenuT) who has been detained by an order dated 29.6. 1984, Annexure A under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the COFEPOSA) passed by the Additional Secretary to the Government of India, Ministry of Finance, who is respondent No.2 in this petition. The grounds of detention have been produced annexure TB. The order of detention came to be passed on account of the fact that the customs officers, on receiving information that contraband silver is being brought from Bombay to .Daman in a specially made cavity in truck from the said truck when it was searched in the presence of the panchas. Rameshbhai Chhaganbhai Patel was driving the truck, while the detenu Thakorbhai was occupying the truck at that time. It appears that the detenu Thakorbhai made a statement before the customs officers admitting his involvement in transport of this silver. The detenu Thakorbhai also admitted that he had made four such other trips earlier. Taking into consideration the statement of this Thakorbhai, the statement of Rameshbhai who was driving the truck and other material, decision was taken that Thakorbhai should be detained and, therefore, proposal was sent by the Collector of Customs to the Additional Secretary to the Government of India, respondent No.2 to pass the order detaining Thakorbhai as stated earlier. The grounds of detention, Annexure B refer to the statements of Rameshbhai Chhaganbhai Patel as also the statement of the detenu Thakorbhai. The detention is challenged on several grounds by the petitioner Smt. Minaben who is the wife of the detenu Thakorbbai. We do not propose to reiterate all the grounds stated in the petition because one of the grounds, viz, the fact that the detenu Thakorbhai had retracted his original confessional statement by sending reply to the show cause notice issued to him by the Assistant Collector of Customs in adjudication proceedings was not brought to the notice of the detaining authority, has appealed to us for setting aside the detention of the detenu Thakorbhai.

(2.) It is specifically alleged by the petitioner that the reply to the show cause notice was not sent to the detaining authority and the affidavit of the detaining authority which is filed in this petition also shows that the said reply was not sent to the detaining authority. The detaining authority has at para 11 stated that as the reply to the show cause notice was sent in departmental proceedings, viz, adjudication proceedings, it was not relevant and, therefore, it was not sent to the detaining authority as per the law laid down by this Court in the case of Kurjibhai Dhanjibhai Patel v. Union of India and others1, which is now reported in Kuriibhai Dhanjibhai Patel v. State or Gujarat and another2. It is pertinent to note that there is no affidavit filed on behalf of the respondents that the sponsoring authority had no knowledge of the fact that such a reply to the show cause notice was sent by the detenu to the Assistant Collector who was in charge of adjudication proceedings. We may mention here that the reply to the show cause notice was sent on 6/8.2.1984, while the proposal was sent by the sponsoring authority to the Additional Secretary, respondent No.2 on 15.6.1984. The learned advocate Mr. Sanjanwala submitted that the Assistant Collector of Customs in charge of adjudication proceedings as also in the Collector of Customs at Ahmedabad, the sponsoring authority arc sitting in the same building at Ahmedabad and it is but natural that the sponsoring authority must have come to know during the period of about four months that such a reply was sent by the detenu to the Assistant Collector. He submitted that in view of this, it has to be presumed that the sponsoring authority must have known before the proposal was sent on 8.6.1984 that such a reply retracting from the original confessional statement was sent by the detenu to the Assistant Collector and even then it was not sent to the detaining this detenu Thakorbhai. We have to proceed this assumption particularly when there is no affidavit filed on behalf of the respondents that the sponsoring authority had no knowledge about this reply and, therefore, it was not sent. The stand taken by them, as stated earlier, in the affidavit of the Additional Secretary is that it was not relevant and, therefore, it was not sent.

(3.) The observations made by the Division Bench of this Court in the case of Kurjibhai Dhanjibhai Patel v. State (supra) at paras 8 and 9 at first blush show that the documents in such type of cases may be divided into three categories viz. (I) the documents pertaining to the adjudication proceedings; (2) the documents which are before the other judicial authorities or other authorities; and (3) the documents which were before the sponsoring authority, and that the sponsoring authority is expected to place before the detaining authority only those documents which are before it and not the documents which form part of the adjudication proceedings or which are before the other judicial authorities or other authorities. At first blush, it might appear that this is the ratio of the decision of the Division Bench in the above case. But on going through the whole of the judgment, it is difficult to say that the Division Bench has laid down that even if a document produced either in adjudication proceedings or before the other judicial authorities or other authorities is relevant and or vital importance and is within the normal reach of the sponsoring authority, then also it is not required to be sent to the detaining authority simply because the document has been produced either in adjudication proceedings or in judicial Bench has referred to an unreported decision of the Supreme Court in the case Smt. Bhagwati v. The Administrator and others3 wherein the Supreme Court has observed as follows Nor do we see how the fact that a show cause notice was issued by the Customs authorities to the petitioners husband would be relevant in so far as the detention is concerned. It could not, in our opinion, influence the determination of the question of detention either way.