Dismissed

Varsha Shyam Amlani v. the State of Maharashtra and Ors.

Bombay HC3 Oct 2006WP/2734/2005

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a detention order under COFEPOSA. The court held that the delays in passing the order and considering representations were explained and reasonable given the complexity of the investigation into smuggling and foreign exchange violations, and thus did not vitiate the order.

What did the court decide?

Petition dismissed; detention order upheld.

Varsha Shyam Amlani Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2006)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL WRIT PETITION NO.2734 OF 2005

¶4

Smt.Varsha Shyam Amlani, Age-44, an Indian Inhabitant, residing at 18, 1st floor, Mehta Mansion, S.V.Road, Mahim (West), Mumbai - 400 016.

¶5

..Petitioner (Wife of Detenu)

¶6

VERSUS

¶7

The State of Maharashtra, through the Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai - 32.

¶8

Smt.Neela Satyanarayana, The Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai - 32.

¶9

The Superintendent of Prison, The Mumbai Central Prison, Arthor Road, Mumbai.

¶10

The Superintendent of Prison, The Nashik Road Central Prison, Nashik Road, Maharashtra.

¶11

..Respondents

¶12

Mr.Maqsood Khan for the Petitioner. Mr.D.S.Mhaispurkar, A.P.P. for the Respondent-State.

¶13

CORAM :- B.H.MARLAPALLE & NARESH H.PATIL , JJ.

¶14

DATE : 3rd OCTOBER, 2006

¶15

ORAL JUDGMENT (PER : B.H.MARLAPALLE,J.)

¶16

This Petition filed under Article 226 read with Article 21 and 22 of the Constitution of India impugns the order of detention passed on 15th October, 2005 by the State Government under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act for short).

¶17

The detenu Mr.Shyam Dharmadas Amlani is the husband of the present Petitioner and detention order taken effect from 15th December, 2005 itself. The detention

¶18

order has been challenged mainly on the following

¶19

three grounds :-

¶20

a. The statements of the detenu were recorded on 17th December, 2004 and 20th December, 2004, he was taken in custody on the same day and was remanded on 21st December, 2004. He was released on bail on 1st January, 2005. He was issued with show cause notice under the Customs Act on 30th May, 2005 and the detention order was passed on 15th October, 2005 and therefore, it suffers from delays, which are not explained. b. The live link between the alleged illegal acts and the detention order was snapped on account of these delays. c. The delay caused in passing the impugned order of detention couldnot be explained by the Authorities concerned and therefore, the impugned order is vitiated on that count. d. Similarly, the delay in respect of the representation submitted by the detenu and rejected by the Competent Authority, has rendered the order illegal. 2. In support of the challenge to the impugned order, Mr.Maqsood Khan, the learned Counsel for the

¶21

Petitioner has relied on the following decisions of the Hon’ble Supreme Court.

¶22

(a) V.C.Mohan Vs. Union of India, 2002 SCC (Cri) 648,

¶23

(b) Pradeep Nilkanth Paturkar Vs. S.Ramamurthi, AIR 1994 SC 656 ,

¶24

¶25

Others, AIR 1990 SC 225,

¶26

(d) Smt.Khatoon Begum Vs. Union of India and

¶27

Others, AIR 1981 SC 1077,

¶28

(e) Union of India and Another Vs. Sneha

¶29

Khemka and Another, (2004)2 SCC 570.

¶30

In addition, he has also relied on the

¶31

.			,
decisions	of		this	Court,	some of which	are	reported
and	others	are	not.		The main thrust of	the	arguments
is on	the		point	of	delay caused in	passin	g the
detention	ord	er	with		reference to the	date	of

¶32

occurrence i.e.16th December, 2004 and 17th December,

¶33

¶34

3.	M	r.Mh	aispurkar, the learned A.P.P. on the
other	hand	has	supported the impugned	order	of
detention	and		submitted that the delay if	any,	has
been	duly	expl	ained and mere delay in	passing	the
impugned	order		is not fatal. By referring	to	the
affidavits	filed		in reply by the	Auth	orities
concerned,	he		submitted that the challenge	to	the
impugned	order	is	devoid of merits and the	Petition	is
required	to	be	dismissed. In support	of	his

¶35

arguments, he placed reliance on the following

¶36

decisions of the Hon’ble Supreme Court.

¶37

(a) Sitthi Zuraina Begum Vs. Union of India

¶38

and Others, 2002 AIR SCW 4807 ,

¶39

(b) Union of India Vs. Chaya Ghoshal (Smt)

¶40

and another, (2006) 1 SCC (Cri) 257,

¶41

¶42

another (2006) 2 SCC (Cri) 432 .

¶43

. In addition he also relied on the following

¶44

judgments of this Court (Division Bench).

¶45

(a) Shabbir Ahmed Rafique Ahmed Vs. State of

¶46

Maharashtra & Ors. 2006 All MR (Cri)946,

¶47

(b) Shaikh Mohd. Saeed Kamamtullah Vs. State

¶48

of Maharashtra & Ors. 2004 All MR (Cri) 654,

¶49

¶50

Maharashtra & Ors. 2003 All MR (Cri) 833

¶51

(d) Shri.Usman Gani Yakubali Vs. State of

¶52

Maharashtra & Ors. 2002 All MR (Cri) 2148 .

¶53

Let us therefore consider the explanation

¶54

provided by the Detaining Authority i.e. the Principal Secretary (Appeals and Security) Home Department (Special), Government of Maharashtra. As

¶55

per the said affidavit we can reproduce the following

¶56

sequence of events.

¶57

On 11th December,2004 information was received

¶58

about	the export goods having been	misdeclared	and
therefore,	the consignment was seized	. On	16th
December,	2004 and 17th December, 2004,	the said	goods
were	examined and panchanama was drawn	so as	to
suggest	that the goods sought to be	exported were	not
the sa	me in quantity as shown in the	declaration.	The
statement	of detenu was recorded under	section 108	of
the	Customs Act, 1962 on 17th December,	2004 as	well
as	20th December, 2004 on which date	he was	arrested.
As n	oted earlier he was released on	bail on	1st
January,	2005. Between 4th January,	2005 to	21st
March,	2005 investigation was	undertaken	and
statements	of various persons were recorded	. Based	on
these	statements and the prelimi	nary inve	stigation
report,	the Sponsoring Authority decide	d to	forward
the	proposal of Screening Committee	for the d	etention
of	the detenu under the Act. The	Screening Co	mmittee
approved	the proposal on 5th April, 200	5 and it	was
forwarded	to the Detention Authority	on 15th	April,
2005.	The detention order dated 15th	October,	2005,
thus	came to be passed almost after six	months.	We
are	therefore, required to examine w	hether this	delay

¶59

has been explained and if so, whether it has been

¶60

properly explained.

¶61

her

¶62

6. The Detaining Authority affidavit-in-reply has stated that after	in receiving	the
proposal on 15th April, 2005, the co	ncerned	Assistant
prepared the detailed note and forwarded th	e papers	to
the Under Secretary on 29th April, 2005	and afte	r its
scrutiny, the concerned Assistant prepared	a	detailed
note and forwarded to the Deputy Secretary.	On	the
same day the Deputy Secretary gave his	endorsement	and
placed before the Detaining Authority, who	in	turn
endorsed the same and called for necessary	do	cuments
from the Sponsoring Authority on 30th April,	2005.	In
the meanwhile, the detenu had	submitted	a
representation dated 30th April, 2005 and th	e same	was
also sent to the Sponsoring Authority	for	calling
their parawise comments. On 11th May,	2005	the
Sponsoring Authority sent further gener	ated do	cuments
and they were received by the Detaining	Authority	on
13th May, 2005. She put her endorsement	on 16th	May,
2005, since the documents as requisitioned	from	the
Sponsoring Authority on the representation	were	not
received. Then parawise remarks were	forwarded	by
their letter dated 16th May, 2005 which	was	received
by Detaining Authority on 18th May,	2005.	The
representation was processed by the	c	oncerned
Assistant on 20th May, 2005 and forwarde	d to	the
Deputy Secretary, who in turn gave his	endorsement	on
21st May, 2005. On 21st May, 2005	she	gave
endorsement and directed to submit a	proposal	for
further orders. The concerned Assistant	submitted	the
proposal along with further generated d	ocuments	on

¶63

31st	May, 2005	to the Under Secretary, who forwarded
the	papers to	the Deputy Secretary and who gave his
endorsemen	t on	3rd June, 2005 and forwarded to the
Detaining	Authority.	After carefully going through
the	papers, the	Detaining Authority deem it proper to
have	a meeting	with the Enquiry Officer and such a
meeting	was held	on 9th June,2005. As the Detaining
Authority	was	not satisfied about certain
clarification	, Sponso	ring Authority again called to
give	clarifications	in writing and further documents
and	remarks vide	letter dated 15th June, 2005. These
parawise	remarks	on the representation made by the
co-detenu	were	received by the Detaining Authority on
5th	July, 2005.	The concerned Assistant again
prepared	the detailed	note and forwarded to the Deputy
Secretary	on 16th	July, 2005, who gave his endorsement
and	forwarded the	same to the Detaining Authority on
18th	July, 2005.	The draft order of detention was
submitted	on 23rd	August, 2005. The delay caused from
23rd	August,2005	has been attacked by the learned
Counsel	for the	Petitioner and as per him, the
following	three blocks of dela	y have not been

¶64

explained properly.

¶65

a) 23rd August, 2005 to 1st September, 2005. b) 1st September, 2005 to 5th October, 2005 c) 5th October, 2005 to 15th October, 2005. 7. As far as the first block is concerned, the

¶66

Detaining Authority has clarified that the documents were required to be typed so as to serve along with the detention order and these voluminous documents took about a week’s time to get them ready. Thereafter the Officers of the Sponsoring Authority

¶67

were	called for discus	sion on 1st	S	eptember,	2005.	On
22nd	September,	2005, the	repre	sentation	submitted	by
the	Petitioner was	decided and	it	was rej	ected.	As
per	the Detaining	Authority the		voluminous	doc	uments
running	into about	503 pages	and	the	grounds	of
detention	as drafted	running into	abo	ut 58	pages	(87
paragraphs)	took con	siderable time	to	go	through	the
required	material	and also	for	better	clarif	ication

¶68

and therefore, the final draft of the detention order

¶69

could be prepared only on 5th October, 2005.

¶70

8.		We have	also noted that the rep	resentat	ion
submitted	by	the	Petitioner b	efore	the detention	order
was	passed	has	also taken	consider	able time of	the
Detaining		Authority	as well		as the	Sponsoring
Authority.		Affid	avit-in-reply o	n	behalf of	the
Sponsoring		Authority	has been	file	d by the	Deputy
Director,		DRI, Mu	mbai. Thus	the	delay mainly	between
the t	wo	blocks	i.e. 1st	Septem	ber, 2005 to	5th
October,	2005	and	5th September,	2	005 to 15th	October,
2005	has	to be	considered in	the	instant case and	it
cannot	be	accept	ed that the	said	delay has not	been

¶71

properly explained and therefore, it would vitiate the

¶72

impugned order of detention.

¶73

9.	Let	us t	herefore, consid	er the n	ature o	f the
offence	alleged.		M/s.C	MA	Over	seas	were	exporting	the
consignments	with		the	total	decl	ared	FOB	value	of
Rs.25,00,930/-	with	a	declared	wei	ght	of	80	MT in	four
containers	(each		container	of	20	MT).		The	material

¶74

being	exported was	betel	powder a	nd against the	said
export	M/s.CMA Oversea	s	was entitled	to import 84	MT
of	betel nut.	Ho	wever, on	rechecking the co	ntainers,
it	was found that	a	gainst the	declared weight of	each
bags	of 40 kgs.,	the	net weight	was between 30	kgs.
to	31 kgs. Fou	r	containers we	re weighed between	9.45
a.m.	to 10.15 a.m	.	on 16th	December, 2004	in
presence	of Mr.Santo	sh	Waskar and	it was found	that
the	containers cont	ained	345 bags	(HDPE) as	against
the	declared quantity	of	500 bags.	At the same	time,
the	price of the	mat	erial being	exported was	between
Re.1.00	to 1.25 per	k	g. whereas,	the price of	the
material	that was	sou	ght to be	imported in e	xchange
was	varying from	Rs.10	/- to 12/-	per kg. in	the
domestic	market. Ev	en	the betel	nut powder that	was
claimed	to be exported	w	as not the	betel nut powde	r as
such a	nd it was mi	xed/di	luted which	would be dumpe	d as
rubbish.	On 17th		January, 2004	when the	detenu’s
statement	was record	ed	under sectio	n 108 under	the
Customs	Act, 1962,	he	had stated	that he was	a
Contractor	by profession		for various	import and	export
items	like Dry Frui	ts,	Spices and	Cosmetics etc.	and
he	was operating f	rom	his residen	ce to carry out	this
profession.	He dis	close	d that he	had came in	contact
with	one Mr.Piyush	of	M/s.Simply	Spices and who	had
planned	to import	duty	free Split	Betel Nut	(Supari)
against	DFRC Licences		to be purc	hased by him	from
various	exporters of	Sup	ari Powder	and these e	xporters
were	M/s.Chamunda,		M/s.Shurveer	and	M/s.N.S.
Corporation	. He		disclosed the	links he es	tablished

¶75

subsequently with the	help of Mr.Pi	yush	and			arranged
for taking delivery and	subsequent dum	ping	at D	u	bai	of
around 21 containers	of Supari	Po	wder.			These
statements indicated t	hat the so cal	led	export			was
only for being dumped	in a foreign	des	tination	b	ut	for
the Indian Authorities,	it was an	expo	rt	c	ons	ignment
of Betel Nut Powder	against which	there	was a			benefit
of Betel Nut being imp	orted. It was	also	found		in	the
investigation that the	powder sought	to	be			exported
was brought from	various centres in		Northern			India
through the Agents and	at low prices	and	there		wa	s an
established link of	the operator	s	for tr	a	nsp	ortation,
consignment and export.	This o	peration	was			duly
set-up few years back	and the detenu	was	found t	o		be
the person acting as a	inter mediator,	who	was		abl	e to
establish links bet	ween the export	ers	and		i	mporters
for the powder for	its being dumped	in	the			foreign
destinations and in	turn, benefit th	e	exporters			by
importing the Betel	Nuts.	No	wonder,			the
investigation had taken	a long time	an	d the		D	etaining
Authority was therefore	required to	decid	e on			the
basis of the materi	al available and	pl	aced bef	o	re	her
so that the detention	order that was	pass	ed would			be

¶76

sustainable in law, more particularly on the grounds for detention.

¶77

The nature of the offence under the Act and the justification for detention has been dealt by the Larger Bench (Nine Judge Bench) in the case of

General

for

India

Amratlal

Prajivandas

Attorney

Vs.

and Others , AIR 1994 SC 2179 in the following words :-

¶86

........."If one looks at the acts the
COFEPOSA is designed to prevent, they are all
either acts of smuggling or of foreign
exchange manipulation. These acts are
indulged in by persons, who act in concert
with other persons and quite often such
activity has international ratifications.
These acts are preceded by a good amount of
planning and organisation. They are not like
ordinary law and order crimes. If, however,
in any given case a single act is found to be
not sufficient to sustain the order of
detention that may well be quashed but it
cannot be stated as a principle that one
single act cannot constitute the basis for
detention. On the contrary, it does. In
other words, it is not necessary that there
should be multiplicity of grounds for making
or sustaining an order of detention."

¶87

¶88

More recently in the case of Union of India and

¶89

Others	Vs.	Chay	a (	Supra)		t	h	e		same	vie	w	h	as	been
reiterated.		A	single	act	c	a	n		be	a	basis	of			detention
and	the	number	of	acts	for				such	detent	ion	is	no	t	very
material.	On	the	point	of	dela	y			in	the	case	of		Un	ion of
India	&	Others	Vs.	Chay	a			Gh	osal	(Supra	) it		ha	s	been
stated	that	the	facts	of	eac	h			case	will	h	ave		to	be
examined	to	consider	the	poi	nt			o	f	delay	an	d t	her	e	cannot
be a	straight	jacke	t.	The		s	a	m	e	view	has	be	en		reiterated
in the	case	of	D.Anura	dha	(Sup	r	a	).		All	th	ese	c	ases	were
pertaining		to	the	detentio	n				orders	pa	ssed	un	der		section
3(1)	of th	e C	OFEPOS	A		A	c	t.		The		learned			Counsel’s

¶90

reliance on the judgment in the case of V.C.Mohan

¶91

(Supra) is, in our considered opinion misplaced.

¶92

In the case of Ashok Narain Vs. Union of India,

¶93

AIR	1982 SC 1222 it has been held that the delay	in
issuig	the order of detention was caused not due to	any
laxity	on the part of the Agency concerned, but	the
result	of full and detail consideration of the facts	and
circums	tances of the case by the various differences	in
word.	In the case of Rajendrakumar Natvarlal Shah	Vs.
State	of Gujarat and Others, AIR 1988 S.C.1255, it	has
been	clarified that a distiction has tobe drawn	between
the	delay in making the order of detention under the	law
relating	to the Preventive Detention and the	delay
caused	in complying with the procedural safeguards	under
Article	229 of the Constitution. In the case of	Hasan
Khan	Ibne Haider Khan Vs. R.H.Mendnoca and Others,	AIR
2000	SC 1146 the Apex Court stated interalia, "it	cannot
be	said that there was undue delay and action was	being
taken	in the routine manner, as after completion of	the

¶94

enquiry, the matter had tobe examined at various levels

¶95

and finally the orders were passed by the Commissioner.

¶96

13.		Having	regar	ds to the	above settle	d positio	n in
law an	d	the	gro	unds	of	detentio	n set	out	in	the
detention		order	as	wel	l as	the	affidavit	in	reply	filed
by	the	Detent	ion	Autho	rity, w	e ha	ve no	dobut	that	there
was	su	fficient	m	aterial	before	th	e Deta	ining	A	uthority
to pass	the	imp	unged	orde	r.	The	charges	on the	basis	of
which	the	ord	er	has	been	passed	cannot	be	called	as
stale	and	it		cannot	be ex	pected	that	the	live	link
between		the		propens	ity	and	p	otentiality		export
consignment		and		the	detention	order	was	snapped.		The

¶97

October,

¶98

time taken between 1st September, 2005 to 5th 2005 as well as 6th October,2005 to 15th

¶99

October,2005

¶100

cannot in no way vitiate the impugned order of

¶101

detention, in the facts and circumstances of the case.

¶102

14.	Coming to the issue of the represent	ation
submitted	by the detenu or submit	ted on his behalf,	we
have	the affidavit of the State	of Government, wh	ich is
affirmed	by the Under Secr	etary, Home	Department
(Special),	Government of	Maharashtra.	The
representat	ion of the detenu was	dated 29th Oc	tober,2005
and	was jointly addressed to	the Detaining	Authority,
State	Government, Central Government	and Advisory	Board.
It	was received by the Authority	on the same day	i.e.
29th	October, 2005. Parawise	comments were called	from
the	Sponsoring Authority on 31st	October, 2005 and	it
was	received by the Home	Department on	16th
November,	2005. The Detaining	Authority rejected	the
representat	ion dated 5th December,2	005 and it	was
received	by the detenu on 10th	December,2005. Com	ing to
the	delay between 17th November,	2005 to 5th	December,

¶103

2005, the same has been explained by the Detaining

¶104

Authority, we are satisfied by the said explanation.

¶105

15.	As	far as the represent	ation to the Stat	e
Government	is	concerned,	it was	received	by	the	State
Government	on	29th	October,2005	and pa	rawise		comments
were called		from the	Sponsorin	g Autho	rity	on	31st
October,2005		which were	received	on 6th		Nov	ember,2005.
The file	was	submitted	to the	Detaining	Au	thority,	which

¶106

rejected the representation on 5th December,2005. The concerned Assistant prepared a detailed note on 6th December,2005 and forwarded to the Under Secretary, who made his endorsement on the same day and submitted to the Deputy Secretary on 7th December,2005. The file was placed before the Additional Chief Secretary on 7th December,2005 itself and the representation was rejected. The reply was communicated to the detenu vide Government Letter dated 8th December,2005, which was received by him on 12th December,2005 in the Nashik Road

¶107

Central Prison. Thus the representation has been

¶108

decided without any unexplained delay.

¶109

16. There is an additional	ground, which was sought
to be argued b	efore us i.e.the medical		certificate,
which was issued in	favour of the detenu while	he	was
taken in custody on 20th	December, 2004. It	was	claimed
that while in custody,	certain statements were		extracted
from him and reduced	into writing and the de	tenu	alleged
that these statements	were extracted under thr	eats	of
violence/intimidation. He	had sought to withdraw		such
statements on the basis	of the said medical		certificate.
However, the Detaining	Authority, while pas	sing	the
impugned order of	detention or while reje	cting	the
representation, did not	consider the same.	This	has
been duly replied	by the Detaining Authority	in	her
affidavit in reply.	The learned Magistrate had		passed
his order on 21st Dec	ember, 2004 referring the	dete	nu to
the J.J.Hospital. He	was ill-treated by the	office	rs of
the Sponsoring Authority and	a copy of the same	w	as also

¶110

furnished to the detenu. This	indicated that the	detenu
had made complaints about the	illtreatment given t	o him
by the officers of the Sponsor	ing Authority and	the
learned Magistrate after having	noted the	injuries,
referred the detenu for me	dical examination	at
J.J.Hospital. The medical certi	ficate was forward	ed in
a sealed cover to the learned	Magistrate and	therefore,
the copy of the said certificate	was not made	available
to the Sponsoring Authority.	However, from the	receipt
of the medical certificate, no	further action	was
directed by the learned Magistrate	and under	these
circumstances, it cannot be said	that the	detenu’s
statements were recorded under	threats, violence	or
intimidation and he was prevented	from withdrawing	the
same on justifiable grounds.	The Detaining	Authority