LexHEMLATA KANTILAL SHAH versus STATE OF MAHARASHTRA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
102s
B
c
D
HEMLATA KANTJLAL SHAH
v.
STATE OF MAHARASHTRA & ORS.
October 30, 1981
(A.P. SEN AND BAHARUL ISLAM, JJ.j
Conservation of Foreign Exchange and Prevention of Smugg/fng Activities
Act, 1974-Section 8 (e)-Representation of detenu by lawyer before Advisory
Board-If could be claimed as of right.
Detaining authority gave grounds of detention-Whether should also state the
particular ground on which the detenu was detained-Whether should state that
certain metal is a precious metal.
Delay in passing r order of detentlon-Whethtr fatal to the order of deten~
tion in all cases-Detaining a person under preventive detntion law instead of prose·
cuting him under ordinary law-When permitted.
Confidential guidelines issued to officials of department-Whether have force
of law.
E
Past conduct of detenu-If could be taken into consideration in detaining an
F
H
offender.
Procedure-Supreme Court and High Court-Jurisdiction under articles 32,
136 and 226 in preventive detention cases-Courts, if could substitute their own
satisfaction for that of detaining authority.
On their arrival at the airport from Muscat the Customs Authorities appre-
hended the petitioner and her husband (the detenu) and recovered 141 slabs of
palladium (a precious metal) each slab weighing one ounce, concealed in different
parts of their baggage. In his statement under section 108 of the Customs Act
the detenu stated that he was smuggling the metal because of the huge profit
involved in it and that he alone was responsible for the smuggling. He was detai-
ned under the provisions of section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act. 1974.
In a petition under article 32 of the Constitution filed by the detenu's wife
it was contended on behalf of the detenu that: (1) arbitrary rejection of his
request for legal representation before the Advisory Board caused serious pre-
judice to him; (2) as a result of the authority's refusal to give information on five
out of six points asked for by the detenu he was deprived of the opportunity to
make a proper representation; (3) there was no reason for detaining him
on June 6, 1981 although he was apprehenr;IC".d on January 8, 1981 and this long
-
•
...
-
llEMi.AtA v. MAHARASHTRA
1019
delay had prejudiced his case: (4) on the fac1s and circumstances of the case
A
although prosecution was the normal remedy he was unjustifiably detained under
the COFEPOSA Act; and (5) failure of the auLhorities to follow the guide-
lin~s framed by the Government rendered the detention 111a!afide and discrimina-
tory.
Dismissing the petition,
HELD : 1. Section 8{e) of the Act does not bar representation by a lawyer
but only lays down that the detenu cannot claim representation by a lawyer as
of right. The Act has given the Board a discretion to permit or not to permit
representation of the detenu by counsel according to necessity in a particular
case. In the instant case after the rejection of the request the Board reviewed
his case and gave its opinion on which alone the Government confirmed the
detention. [1033 G]
2 (a) When a document containing the grounds of detention is supplied to
the detenu he is not entitled to know which part or parts of the grounds was or
were taken into consideration by the detaining authority in detaining him.
It
will be for the Court to judge whether the facts narrated constituted the grounds
of detention or which facts might possibly enter and influence the detaining
authority in coming to its subjective satisfaction. [1035 F·G]
(b) The question whether or not import of palladium is prohibited is an
information on a question of law and could have been obtained by the detenu
from the relevant statutes, rules etc. The Government is not under any
obligation to furnish him with legal information which is available from
legal Jiterature. The detaining authority is only required to comply with the
requirements of article 22(5) of the Constitution. i1336 A-BJ
(c)
The plea 1hat the detenu did not know whether palladium was a
precious n1etal is not a permissible plea on the ground of public policy. Any
detenu may plead that he had no know1edge that gold or silver is a precious
metal. That apart, the detenu in his statement before the Customs Authorities
had stated that he purchased the metal from a dealer in precious metals and
that he had smuggled it to n1ake profit. Though not a prohibited artiExcerpt shown. Read the full judgment & AI analysis in Lexace.