Holding

The order of preventive detention was upheld because the detaining authority had not relied on the undisclosed documents, there was no unreasonable delay in considering the representation, and no breach of Article 22(5) occurred.

Summary

The Supreme Court examined the preventive detention of Jahaubar Moulana under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu argued that the detaining authority had failed to furnish copies of documents mentioned in the grounds of detention, had delayed consideration of his representation, ignored his alleged retraction, and had not considered whether ordinary criminal prosecution would suffice. The Court held that the documents referred to were not relied upon in making the detention order, so their non‑disclosure did not violate Article 22(5) of the Constitution. The Court also found no unreasonable delay in disposing of the representation and held that a presumption of receipt of a posted letter is not mandatory under the Evidence Act. Consequently, the detaining authority’s decision was valid and the writ petition was dismissed.

Issues considered

Whether failure to provide copies of documents referred to in the grounds of detention, which were not relied upon, violates Article 22(5) and vitiates the detention order.
Whether delay in disposing of the detenu's representation amounts to a violation of his right to a speedy consideration under Article 22(5).
Whether the detaining authority must consider a retraction letter and whether a presumption of its receipt can be drawn under Sections 16 and 114 of the Evidence Act.
Whether the detaining authority must examine if ordinary criminal prosecution would be sufficient, rendering preventive detention unnecessary.
Whether the detaining authority applied its mind to the representation and the alleged retraction.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 22(5)
Customs Act
Indian Evidence Act, 1872s. 114, s. 16

Subjects

preventive detentionArticle 22(5)representationdelayevidencepresumption of receiptcustoms smugglingforeign exchangeretractiondocument disclosure

Judgment

647

MST. L.M.S. UMMU SALBBMA A
v.
B.B. GUJARAL & ANR.

May 4, 1981
B
( 0. CHINNAPPA REDDY, A.P. SEN AND
BAHARUL !SLAM, JJ. ]

Conservation of Foreign Exchange and Prevention of Smuggling Activities~Act
1974, S.3(1).
c
y Detention under-Delay in disposal of representation-Whether vitiates deten-
tion.

Detaining Authority-Failure to consider prosecution under the ordinarvJicrimi-
nal /aw-Whether voids order of detention.
0
Constitution of India 1950, Art. 22(5)-Detaining authoritv-Failure of-
To furnish copy of document to which reference is made in grounds of detention-
Whether fatal to order of detention. ·

Indian Evidence Act 1872, Ss. 16andI14-Detenu alleging despatch of commu-
nicatian under certificate of posting-Detaining authority contending non-receipt-
Court whether compelled to draw a presumpiion that communication reached the E
addressee.

On August 6, 1980 the car in which the detenu was travelling was inter-
cepted by Customs Officers and on a search of the car, wrist watches of foreign
origin and semi-precious stones valued at Rs.2.95 lakhs were found ingeniously
concealed in the panelling of the front doors and the cavity between the petrol

·- ,F
tank and the steel plate covering the petrol tank. The goods were seized by the
Customs Officers alongwith the Car. On 7.8.1980 the detenu was interrogated and
a statement was recorded which incriminated himself and others. He was taken
before the Magistrate on 8.8. 19d0 and was remanded to custody. On 12.8.1980
F

he was granted bail. On 14.8.80 the detenu was stated to have sent a communi-
cation addressed to the Assistant Collector of Customs, in which, according to
him, he retracted from the statement made by him on 7.8.80 and claimed that
the statement.had been obtained by torturing him. G
On 31.10.80. the first respondent made an order of preventive detention
against the detenu under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act 1974. The order of detention and
the grounds of detention were served on 2.2.81, as the detenu was avoiding service
and arrest. The detenu made a representation on 4.2.81, whi~h was rejected by H
the detaining authority, the first respondent on 19.2.1981. ·
648 SUPREME COURT R.l!PORTS [ 1981} 3 S.C.R.

A In the writ petition to this Court it was contended on behalf of detenu : (1)
that as material documents viz. record of investigation revealing the trunk tele-
phone calls and the record of investigation relating to the petrol which was put
into the jeep owned by the brother of the detenu, upon which reliance was placed
in the order of detention were not supplied to the detenu along with the grounds
of detention, the detenu was thereby prevented from making an effective repre-
sentation and denied the Fundamen ta! Right guaranteed under Article 22(5). (2)
The detaining authority was under obligation to supply alongwith the grounds,
B copies of all documents to which reference was made in the grounds irrespective
of whether such documents were not relied upon in making the order of deten-
tion. (3). Although the detenu had retracted from his alleged original statement
dated 7.8.80 long before the order of detention was made, the fact of such retrac-
tion was not considered by the detaining authority (4). There was considerable
delay in the disposal of the representation by the detaining authority and this
was sufficient to vitiate the detention, (5). The detaining authority did not apply ~.-"

c his mind to the representation which made an express reference to the retraction.
(6). The detaining authority had failed to consider the question whether a
prosecution under the ordinary criminal law would not suffice to prevent the
detenu from indulging in the alleged activities and whether preventive detention
was necessary in the circumstances of the case.

Dismissing the petition the Court,
D HELD : 1. (i) A perusal of the grounds of detention reveal that neither the
record of Trunk Calls nor the record of investigation relating to the petrol put
into the jeep were in any manner relied upon by the detaining authority in
making the order of detention. [652 CJ

(ii) The reference to the re~ord of trunk calls was made for the purpose
E
of verifying the trunk call which was received in the premises when the customs
officers were there. The reference to the record of investigation relating to
the petrol put into the jeep was to refute the statement of the detenu's
brother that the jeep was not used during the previous year and was in the
garage. [651 G, 651 E, 653 DJ

F 2. (i) The Constitutional requirement of Article 22(5) is insistence that basic
facts and particulars which influenced the detaining authority in arriving at the
requisite satisfaction must be communicated to the detenu so that the detenu may
have an opportunity of making an effective representation against the order of
detention. Every failure to furnish copy of a document to which reference is,
made in the grounds of detention is not an infringment of Art. 22 (5), fatal to the
order of detention. It is only a failure to furnish copies of such documents as
were relied upon by the detaining authority making it difficult for the detenu to
G make an effective representation that amounts to violation of the fundamental
right guaranteed by Article 22(5), [652 H-653 BJ

2. (ii) It is unnecessary to furnish copies of documents to which casual or
passing reference may be made in the course of narration of facts and which are
not relied upon by the detaining authority in making the order of detention.
H [653C}
L.M.S.U. SALl!BMA v. B.B. GUJARAL 649
Smt. Sha/ini Soni v. Union of India and Ors.AIR 1981 SC 431, lechu Devi A
Choraria v. Union of India, AIR 1980 SC 1983, Khudiram Das v. The State Q/
West Bengal, [1975) 2 SCR 832 @ 848, 849, referred to.

)I In the instant case the two documents cannot be said to be documents which
were relied upon by the detaining authority in making the order of detention.
Therefore, the detenu could not properly complain that he was prevented from
making an effective representation. There was no violation of the right guaran• B
teed by Art. 22 of the Constitution. [653 D]

3(i). If the detenu was serious in his request that his retraction should
be considered by the detaining authority while considering his representation one
would expect him to send a copy of the letter of retraction alongwith his represen·
talion instead of a copy of the certificate of posting. [ 654 A]

--~- (ii) The Certificate of posting might lead to a presumption tethat a letr
addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in
y due course reached the addressee. But, that is only a permissible and not an
inevitable presumption. [654 BJ

(iii) Neither Section 16 nor section 114 of the Evidence Act compels the
Court to draw a presumption that a letter proved to be posted has reached the D
addressee. The presumption may or may not be drawn. On the facts and cir-
cumstances of a case, the Court may refuse to draw the presumption. [654 F)

In the instant case, the alleged letter of retraction was only a myth. No
such letter of retraction was posted as claimed by the detenu. [654 E, G]

4. The representation made by the detenu has to be considered by the E
detaining authority with utmost expedition but the time imperative can never be
absolute. or obsessive. The occasional observations made by this Court that
each day's delay in the dealing with the representation must be adequately ex-
plained are meant to emphasise the expedition with which the representation must
be considered and not that it is a magical formula, the slightest breach of which
must result in the release of the detenu. Law deals with the facts of life. In
law, as in life, there are no invariable absolutes. Neither life nor law can be F
reduced to mere. but despotic formulae. [655 B-C]
•
Pritam Nath Hoon v. Union of India and Ors. A. I. R. 1981 SC 92,
Shanker Raju Shelly v. Union af India, W. P. 640 of 1980 decided on 26.6.80,
Francis Coralie Mullin v. W.C. Khambra, [1980] 2 S.C.R. 1005, referred to.

In the instant case the representation was despatched on 5.2.1981 and was
G
received in the office of the detaining authority on 13.2.1981. ·It was put up
before the detaining authority on 19.2.81 and disposed of that very day. The
detaining authority was not available from 13th to 16th as he had gone abroad.
He returned on 16th and considered the matter on 19th. There has not been
any unaccontable or unreasonable delay in the disposal of the representation by H
the detaining authority. [655 D-G]
650 SUPREME COURT REPORTS [1981] 3 S.C.R.

A 5. The note file shows that the detaining authority also considered the
question whether the alleged letter of retraction was posted. [656 BJ

6. A reading of the entire counter-affidavit makes it clear that in the opi-
nion of the detajning authority prosecution or no prosecution, the only effective
y
way of preventing the detenu from engaging himself in objectionable activities
was to detain him. [656 G-H]
B
ORIGINAL JURISDICTION: Writ Petition No. 1745 of 1981.

(Under Article 32 of the Constitution of India.)

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
c
M.M. Abdul Khader and MiH A. Subhashini for the Res-
pondents.

The Judgment of the Court was delivered by
D CHINNAPPA REDDY, J. In this application under Art. 32 of
the Constitution, we are concerned with the question of the legality
of the detention of Jahaubar Moulana under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974. On August 6, 1980, a car in which the detenu
Jahaubar Moulana was travelling was intercepted by Customs
E Officers near Perumber-Kandigal diversion road on Tiruchirappalli-
Madras G.S.T. Road. On a search of the car, 768 Wrist watches
of foreign origin and l 560 semi-precious stones were found ingeni-
ously concealed in the panelling of the front doors and the cavity
between the petrol tank and the steel plate covering the petrol tank.
The goods which were valued at Rs. 2,95,188 were seized by the
F Customs Officers alongwith the car. On 7.8.80 the detenu,
Jahaubar Moulana, was interrogated and a statement was recorded
which incriminated himself and others. He was taken before the
Magistrate on 8.8.80 and was remanded to custody. He was
granted interim bail on 12.8.80 and the bail was finally confirmed
on 16.8.80. On 14.8.80 the detenu claims to have sent a communi·
G cation addressed ·to the Assistant Collector of Customs, Cuddalore,
in which, according to him, he retracted from the statement made by
him on 7.8.80 and claimed that the earlier statement had been
obtained from him by torturing him. According to the case of t'he
detenu this communication was sent by him under Certificate of
H posting. Subsequently, on 31.10.80, Shri B.B. Gujral, Additional
Secretary to the Govt. of India, Ministry of Finance made an order
L.M.S.U. SALEEMA v. B.B. GUJARAL (Chinnappa Reddy, J.) 651

of preventive detention against the detenu Jahaubar Moulana under A
S. 3 (I) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act. The order of detention and the
grounds of detention were served on Jahaubar Moulana on
2.2.8 I. According to the respondent they could not be served
earlier as Jahaubar Moulana \vas not available and was avoiding
service and arrest. The detenu made a representation on 4.2.81. B
The representation was rejected by the detaining authority, Shri
B.B. Gujral on 19.2.81.

Shri Ram Jethmalani, learned counsel for the detenu urged
that material documents upon which reliance was placed in the order
cf detention were net supplied to the detenu along with the grounds
of detention and the detenu was thereby prevented from making an
c
effective representation. He was thus denied the Fundamental
Right afforded to him under Art. 22 (5) of the Constitution. The
two documents which according to Mr. Jethmalani were not
supplied to the detenu were (l) record of investigation revealing the
trunk telephone calls booked from Telephone No. 315 at Kila Karai b
totelephone No.27115 at Madras on 15.7.80, 18.7.80, 24.7.80,
26.7.80, 27.7.80, 29.7.80, 6.8.80, and 7.8.80; and (2) record of
investigation relating to the petrol which was put into Jeep
No. TMC 1850 owned by Shri Shamsuddin, brother of the
detenu.
E
In paragraph 4 of the grounds of detention it is mentioned
when premises No. 66, Malayappan St. Mannady, Madras was
being searched on 7.8.80, a telephone call was received at telephone
No. 27115 which was in the premises, from telephone No. 315 Kila
Karai enquiring about the arrival of the detenu. The information
about the call was verified with reference to the record of trunk
r F
calls and it was found that on the various dated mentioned trunk
calls had been booked from telephone No. 315 at Kila Karai to
telephone No. 27115 at Madras. The reference to the record of
trunk calls was made for the purpose of verifying the trunk call
which was received on 7.8.80 at telephone No. 27115 in the
premises No. 66 Malayappan Street when the Customs Officers G
were there. After carefully perusing the grounds of detention we
find it impossible to hold that the record of trunk calls was one of
the documents upon which the detaining authority had relied in
making the order of detention.

The reference in the grounds of detention to the petrol put H
into Jeep No. TMC 1850 was made in the following circumstances.
652 SUPREME COURT REPORTS [1981] 3 S.C.R.

A Paragraph 5 of the grounds of detention refers to a statement made
by the detenu's brother Shamsuddin on 20.9.80 in which he stated
that his Jeep No. TMC 1850 has not been used during the previous y
years and that it was kept locked up in a garage. Paragraph 5 then
recites that the investigation showed that during the period between
1.6.80 and 5.8.80, on as many as 36 occasions petrol had been put
B into the jeep at various petrol pumps. Here again we are unable
to say, on a perusal of the grounds of detention, that the record of
investigation relating to the petrol put into the jeep was in any
manner relied upon by the detaining authority in making the order
of detention.
c Shri Jethmalani's submission was that the detaining authority
was under an obligation to supply alongwith the grounds, copies of
all documents to which reference was made in the grounds irrespec-
tive of whether sucl:i documents were or were not relied upon in
making the order of detention. He submitted that the very fact that
D the documents were mentioned in the grounds established that the
documents were relied upon in making the order of detention. We
are unable to agree with the submission of Shri Jethmalani. True,
it was observed in some cases that copies of documents to which
reference was made in the grounds must be supplied to the detenu
as part of the grounds (vide Smt. Shalini Soni v. Union of India &
E Ors.).(1) But these observations must be read in the context in which
they were made. In Shalini Soni' s case, ·for example, the observa-
tions were made immediately after stating that "grounds" in
Art. 22 (5) did not mean mere factual inferences but meant factual
inferences plus factual material which led to such factual inferences.
In lcchu Devi Choraria v. Union of India(') the Court observed :
F
''It is difficult to see how the detenu can possibly make
an effective representation unless he is also furnished copies
of the documents, statements and other materials relied
upon in the grounds of detention."

G The stress was upon the words "relied upon". In Khudiram
Das v. The State of West Bcnga/(3) the Constitutional requirement of
Art. 22 (5) was stated as insistence that basic facts and particulars
which influenced the detaining authority in arriving at the requisite

H (I) AIR 1981 SC 431.
(2) AIR 1980 SC 1983.
(3) [1975] 2 SCR 832@ 848, 849.
L.M.S.U. SALEEMA v. B.B. GUJARAL (Chinnappa Reddy, J.) 653

satisfaction leading to the making of the order of detention must be A
communicated to the detenu so that the detenu may have an oppor-
tunity of making an effective representation against the order of
detention. It is, therefore, clear that every failure to furnish copy
of a document to which reference is made in the grounds of deten-
tion is not an infrin3~me:lt of Art. 22 (5), fatal to the order of
detention. It is only failure to for.1ish copies of such documents B
as were relied upon by the detaining authority, making it difficult
for the detenu to make an elfective representation, that amounts to
a violation of the Fundamental Rights guaranteed by Art. 22 (5).
In our view it is unnecessary to furnish copies of documents to
which casual or passing r~fere~c~ may be made in the course of c
narration of facts and which are not relied upon by the detaining
authority in making the order of detention. In the case before us
we are satisfied that such wer~ the two documents, copies of which
were not furnished to the detenu. We are satisfied that the
documents cannot be said to be documents which were relied upon
by the detaining authority in making the order of detention.
Therefore, the detenu could not properly complain that he was pre- D
vented from making an effective representation. There was no
violation of the right guaranteed by Art. 22 of the Constitution.

The next submission of the learned counsel for the detenu
was that although the detenu had retracted from his alleged original
statement dated 7.8.80 long before the order of detention was made, E
the fact of such retraction was not considered by the detaining
authority before making the order of detention. The plain and
simple answer of the respondents was that there was no such retrac-
tion as claimed by the detenu. According to the detenu as soon as
he was released· on bail, on 14.8.80, he addressed a letter to the
Assistant Collector of Customs, Cuddaiore, retracting from his
F
former statement. This communication was sent under Certificate
of Posting, a photostat copy of which was produced before us. In
support of the claim that he 'had retracted from his former statement
and had communicated the retraction under Certificate of Posting,
the detenu invited our attention to the reply sent by him to the G
( show cause notice issued by Collector of Customs under· the
Customs Act, and to the representation made by him to the
detaining authority, in both of which he made a reference to the
alleged retraction. One curious feature which we must notice is
that the detenu sent to the detaining authority alongwith his H
representation a photostat copy of the Certificate of Posting but
carefully refrained from sending a copy of the letter of retraction
654 SUPREME COURT REPORTS [198 lJ 3 S.C.R.

A itself. This is indeed extraordinary. If the detenu was serious in
his request that his retraction should be considered by the detaining
authority while considering his representation one would expect
him to send a copy of the letter of retraction alongwith his representa-
tion instead of a copy of the certificate of posting. One cannot help
a suspicion that evidence was being brought into existence to support
B the assertion that a letter of retraction was sent on 14.8.80. The
detaining authority has stated in the counter that no such letter
dated 14.8.80 was received by the Assistant Collector of Customs.
The entire file has been produced before us and on a perusal of the
file we find that a thorough search was made, not once but several
times, to find out if such a letter was received in the office of the
c Assistant Collector of Customs, Cuddalore but no such letter coul.d
be traced. The learned counsel urged that the detaining authority
was not competent to state that the Assistant Collector of Customs
had not received such a letter and that it was for the Asstt. Collector
to say so. There is no force in this submission. The file produced
before us shows that the Asstt. Collector of Customs had informed
D the detaining authority and the Collector of Customs that he had
made a thorough search for the letter said to have been written on
14.8.80 and that no such letter had been received in his office. We
are satisfied that the alleged letter of retraction was only a myth.
The certificate of posting might lead to a presumption that a letter
addressed to the Assistant Collector of Customs was posted on
E 14.8.1980 and in due course reached the addressee. But, that is only
a permissible and not an inevitable presumption. Neither Section
16 nor Section 114 of the Evidence Act compels the Court to draw
a presumption. The presumption may or may not be drawn. On
the facts and circumstances of a case, the Court may refuse to draw
F
the presumption. On the other hand the presumption may be
drawn initially but on a consideration of the evidence the Court may
hold the presumption rebutted and may arrive at the conclusion that
no letter was received by the addressee or that no letter was ever
despatched as claimed. After all, there have been cases in the past,
though rare, where postal certificates and even postal seals have
G
been manufactured. In the circumstances of the present case,
circumstances to which we have already referred, we are satisfied
that no such letter of retraction was posted as claimed by the
detenu.

Another submission of the learned counsel was that there was
H considerable delay in the disposal of the representation by the
c:~taining authority and this was sufficient to vitiate the detention.
L.M.S.U. SALEEMA v. B.B. G_UIARAL (Chinnappa Reddy, J.) 655

The learned counsel submitted that the detaining authority was under A
an obligation to adequately explain each day's delay and our atten-
tion was invited to the decisions in Pritam Nath Hoon v. Union of
India & Others (1) and in Shanker Raju Shetty v. Union of India (2).
We do not doubt that the representation made by the detenu has
to be considered by the detaining authority with the utmost expedi-
B
tion but as observed by one of us in Francis Coralie Mullin v. W.C.
Khambra.(') "The time imperative can never be absolute or obses-
sive''. The occasional observations made by this Court that each day's
delay in dealing with the representation must be adequately explained
are meant to emphasise the expedition with which the representation
must be considered and not that it is a magical formula, the
slightest breach of which must result in the release of the detenu.
c
Law deals with the facts of life. In law, as in life, there are no
invarible absolutes. Neither life nor law can be reduced to mere
but despotic formulae. Considered in that light, can it be said that
there was an unreasonable delay in the present case? The representa-
tion was despatched on 5 .2.1981 and was received in the office of D
the detaining authority on 13.2.1981. Apparently it was in postal
transitJrom 5th to 13th. It was put up before the detaining authority
on 19.2.1981 and disposed of that very day. From the records pro-
duced before us we notice that the detaining authority, Shri B.B.
Gujral, was not available from 13th to 1<ith as he had gone abroad.
He returned on 16th and considered the matter on 19th. The learned
E
counsel for the detenu urged that the absence of the detaining
authority from India cannot be allowed to violate the fundamental
right of the detenu to have his representation considered with the
utmost expedition. We agree that in such cases appropriate
arrangements must be made for considering the detenu's representa-
tion. Apparently, it was not thought necessary in the present case F
as Shri Gujral was returning on 16th, that is, within a few days.
After the 16th the delay, was for a period of three days only. It
can hardly be described as delay though one wishes there was no
room even for that little complaint. We are of the view that there
has not been any unaccountable or unreasonable delay in the disposa1
of the representation by the detaining authority. G
The learned counsel for the detenu further submitted that the
detaining authority did not apply his mind to the representation.

(1) AIR J981 SC 92. H
(2) W.P. No.640 of 1980 decided on 26.6.80.
(3) [1980] 2 S.C.R. 1095.
656 SUPREME COURT REPORTS (1981] 3 S.C.R.

A He argued that the representation made express reference to the
retraction and yet the detaining authority did not enquire or send
for the retraction which admittedly was not available with him. We
have already found that no letter of retraction was sent to the
Assistant Collector of Customs. A perusal of the note file shows
that the detaining authority also considered the question whether the
B alleged letter of retraction was posted. In the circumstances we are
unable to hold that there was non-application of mind by the
detaining authority.

Shri Jethmalani then submitted that the detaining authority
had failed to consider the question whether a prosecution under the
c ordinary criminal law would not suffice to prevent the detenu from
indulging in the alleged activities and whether preventive detention
was necessary in the circumstances of the case. Reliance was
placed upon the observations made by this Court in Kanchanfal
Maneklal Chokshi v. The Stute of Gujurat & Ors. (1) In the counter
affidavit filed by the detaining authority, Shri B.B. Gujaral, it has
D been stated:

"Having regard to the nature of the activities in which
the detenu was engaged and after having applied my mind
very carefully to all the facts and circumstances of the case
and the material placed before me, I arrived at the subjective
satisfaction that it was necessary to detain Shri Jahaubar
Moulana for preventing him from engaging in transporting
smuggled goods. The adjudication of the case under
the Customs Act and prosecution of the detenu are entirely
on a different footing. I say that the detention order was
passed by me with due care and after careful consideration
F of all the materials placed before me".

The deponent may not have stated in express words that when he
made the order of detention he also considered the question whether
a prosecution under the ordinary criminal law would not meet the
situation and would not be sufficient to prevent Jahaubar Moulana
G from engaging himself in the objectionable activities. But a reading
of the entire counter affidavit makes it clear that in the opinion
of the detaining authority, prosecution or no prosecution, the only
effective way of preventing Jahaubar Moulana from engaging himself
in objectionable activities was to detain him.
H
(l) (1980] 1 S.C.R. 54.
L.M.S.U. SALEEMA v. B.B. GUJARAL (Chinnappa Reddy, J.) 657

Some other grounds were mentioned by the learned counsel A
for the detenu but they were not pressed before us. In the result
the Writ Petition is dismissed.

N.V.K. Petition dismissed. B

r