S.V. Maruthi, J.
1. This Writ Petition is filed by the wife of the detenu Sri Vishan Singh alias Tipusoni for a direction to the respondents to produce her husband (detenu) before this Court and set him at liberty forthwith.
2. The 1st respondent-Government of Andhra Pradesh, by its order dated 4-11-1992 detained the detenu, namely, Vishan Singh alias Tipusoni under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), on the ground that it is necessary to prevent him effectively from further dealing in smuggled goods.
3. In support of the order of detention, the 1st respondent relied on the following grounds; on 28-8-1992, the officials of Directorate of Revenue Intelligence (D.R.A.), Hyderabad made a surprise visit at 11.00 a.m. of the premises of Swasthik Refinery, Bakaram, on the reasonable belief that some contraband silver was secreted in the said refinery. At the time of the visit, the D.R.A. Officers found the following persons in the premises of the Swasthik Refinery :
(1) Kirit Parekh.
(2) Pankaj B. Parekh.
(3) Pawan Kumar Suganth.
(4) Deepak Kumar Soni.
(5) Vijaykumar alias Bhola.
(6) Ramchander.
4. The officers also found five scooters parked in the premises of the refinery. On enquiry, the above persons informed the officers of the D.R.A. that the scooters belonged to them. The officials thoroughly checked the five scooters and detected in all ten oil stained canvas bags with zips two each in the dickeys of the said five scooters. The officers also searched the refinery and detected 11 metal bars dipped in black oil and two metal bars dipped in black oil and concealed in canvas bags which resembled the canvas bags that were found in the scooters. These bars were found in the western portion of the refinery. On a detailed examination these 13 metal bars were found to be of silver and of foreign origin and foreign shape and size. The bars were weighing about 451.459 kts. and valued at Rs. 34,31,088.40. On enquiry Sri Kirit Parekh and Pankaj B. Parekh stated that they are partners of Swasthik Refinery and that Sri Pawn Kumar Suganth, Deepak Kumar Soni and Vijaykumar alia Bhola are with the detenu and that the detenu was dealing in contraband silver. These six persons told the D.R.A. Officers that in all 23 silver bars were received by the detenu and as per the instructions of the detenu, they were kept in the refinery and they are transporting the silver bars to the residence of Pawan Kumar Sugandh. Sri Kirit Parekh and Pankaj B. Parekh further informed the officers that the said silver bars were kept in the refinery by the detenu with their concurrence. Since Kirit Parekh and Pankaj B. Parekh failed to produce the document in support of the illicit importation of the silver bars, the officers seized 13 silver bars along with the scooters and the cavas zip bags for further investigation. Sri Ramachander who was present at the time of visit told the officers that he came to take delivery of silver from the refinery. The D.R.A. Officers on the basis of information that ten more silver bars were already transported to the residence of Shri Pawan Kumar Sugandh from the refinery, visited the residential premises of Sri Sugandh at 2.30 p.m. on 28-8-92. On search of the premises, they recovered ten silver bars from one of the bath rooms in the premises. The ten silver bars are approximately weighing 349.535 kgs. and estimated to be valued at Rs. 26,56,477.00 as per the market value. Sri Pankaj Kumar Sugandh failed to produce any document as to the illicit importation of the ten silver bars. Whereupon, the Officers seized the silver bars on the reasonable belief that they were smuggle into India and are liable to confiscation under the Customs Act. When questioned, Sri Pawan Kumar Sugandh told the officers that at the instance of the detenu these ten silver bars were transported from Swasthik Refinery to his residence with the assistance of Sri Vijaya Kumar and others and kept the said bars in his residence for safe custody. The Officers took these ten silver bars with them to their office for weighment and testing of their purity. In the office they secured the presence of an experienced gold and silver dealer on 28-8-1992 at about 18.00 hrs. for assaying and testing the purity of the silver bars in question. The dealer after testing stated 'that this purity of the silver bars cannot be manufactured in India and that these silver bars are smuggled into India.' Thereafter, the officers interrogated Sri Kirit Parekh, Pankaj B. Parekh, Pawan Kumar Sugandh, Deepak Kumar Soni and Vijayakumar alias Bhola and obtained their statement under S. 108 of the Customs Act.
5. Sri Kirit Parekh in his statement stated that on 28-8-1992 at about 7.30 a.m. two jeeps came to the refinery and delivered 23 silver bars of foreign origin; that before receiving the said bars he received phone call from the wife of the detenu requesting him to keep the silver in the refinery for melting purpose and also told him that these were the instructions from the detenu; since he was not prepared to melt the same, he requested the wife of the detenu over telephone No. 523516 to take back the silver from the refinery, accordingly out of 23 bars, ten bars were already transported to the residence of Pawan Kumar Sugandh between 8.00 a.m. and 11.00 a.m. on 28-8-92. He also stated that earlier he received small quantities of 4 or 5 similar type of foreign silver bars and melted and supplied to the detenu, that this time he has afraid and not proposed to take risk, he requested the wife of the detenu to take back the silver bars.
6. Sri Pankaj B. Parekh in his statement stated that he and Kirit Parekh are the partners of Swasthik refinery and Sri Kirit looks after the daily business of the refinery and Kirit had friendship with the detenu and that the detenu deals in contraband silver. On 28-8-92 at about 7.30 a.m. two jeeps came and delivered 23 bars of silver at the Swasthik refinery; Kirit was supervising this activity and he was incidentally present in the refinery and Sri Kirit told him that the detenu's wife telephoned and told to receive the contraband silver as per the instructions of the detenu and later by 11.00 a.m. ten silver bars were transported to the residence of Sri Pawan Kumar Sugandh.
7. Sri Pawan Kumar Sugandh in his statement stated that the detenu is his brother-in-law, that on 27-8-1992 at 7.00 p.m. in the evening he received a phone call from the detenu instructing him to go to Swasthik refinery on 28-8-92 morning and to take silver from there to his house for keeping them with him, that again on 28-8-92 at 8.00 a.m. in morning he received a phone call from his sister i.e. the wife of the detenu and told him to go to the refinery where he will find Deepak and others including Sri Kirit and Pankaj and smuggled silver has to be transported to his house from the refinery on scooters, that accordingly he went to the refinery and transported ten silver bars from the refinery to his house, in the first instance and returned to the refinery to take the remaining bars and while preparing to transport the remaining 13 bars, the officers came.
8. Sri Vijaykumar alia Bhola stated that he is working with the detenu and on 28-8-92 at about 9 a.m., the detenu's wife instructed him to go to Swasthik refinery for transport of silver bars from the refinery to Pawan's house along with others. He accordingly transported the silver bars along with others to the residence of Sugandh.
9. In his statement Sri Deepak Kumar Soni corroborated the version of Sri Vijaya Kumar and stated that the detenu is his uncle.
10. The D.R.I. Officers of Central Excise arrested Sri Kirit Parekh, Pankaj B. Parekh, Pawan Kumar Sugandh, Vijaykumar alias Bhola and Deepak Kumar Soni and produced before the Special Judge for Economic offences, Hyderabad.
11. Thereafter, as a follow-up action, the D.R.I. officers searched the residential premises of the detenu on 28-8-92 and from the premises four canvas Zip bags which are similar to those that were found at the Swasthik refinery were seized. The telephone was found to be 523516. Nothing incriminating is found in the premises of the detenu.
12. The D.R.I. Officers traced the detenu at Bangalore on 17-9-92. He appeared before the Assistant Director of Revenue Intelligence on 17-9-92 and gave his statement. In his statement on 17-9-92 recorded under Section 108 of the Customs Act, stated that when he was loitering near Mahaveer Jewellers at Bangalore, the officers traced him and he came to know about the seizure of 13 silver bars from Swasthik refinery and ten silver from the residence of Pankaj Kumar Sugandh on 28-8-92 through his wife on 28-8-92 itself. He also received a phone call from Gwalior on 27-8-92 in the late night that his brother-in-law expired at Gwalior and that he accordingly left for Delhi by the morning flight on 28-8-92 and from there to Gwalior and that he was keeping in touch with his wife over phone and knowing the development. As he was tired on 17-9-92, he requested the officers to allow him to continue his statement the next day. Accordingly summons were served on him to appear before the officers on 18-9-92. The detenu appeared accordingly on 18-9-92 and gave his further statement. He stated that he was having Gold and Silver business at Kalikaman, Hyderabad; that his telephone No. at his shop is 524492 and the telephone No. at the residence is 523516, about two months back he came into contact with one Dilip alias Double D of Bombay, who offered him foreign silver bars at a lesser rate than that is prevailing in the market and also offered to collect money after they are sold out and promised to send more and more such silver bars if he can continuously sell the bars for which he agreed. Accordingly Sri Dilip sent 15 bars each on two times earlier and he sold them and paid the amount to Sri Dilip in hawala on both the instances, that the silver bars were used to be sent in Mahindra Jeeps; that he always told Dilip to send the silver bars straight to Swasthik Refinery in Bakaram, Hyderabad; that after the bars were received in the said refinery, Kirit Parekh, the Managing Partner of the said refinery used to inform him over telephone about the arrival of the bars and that on his instructions, Kirit used to melt the bars as soon as they were received and convert them into pieces so that no identity of their foreign origin is visible on them. Sri Kirit got the silver bars melted and supplied to him; that around 23rd August, 1992, Dilip contacted him over phone and told him that he would he sending 25 foreign silver bars and the material may reach Hyderabad any time after three days; that on 27-8-92 at about 10 p.m. in the night he received another call from Dilip informing him that two jeeps already left with 25 silver bars and requested to make arrangements to receive them for which he told Sri Dilip to send them to Swasthik Refinery where Kirit will receive them as usual; that an hour after that he received a message that his brother-in-law expired in Gwalior; that thereupon he left instructions to his wife to follow-up the matter and also told her to take the assistances of Kirit, Pankaj, Pawan Kumar Sugandh, Vijayakumar and Deepak for the purpose and also instructed her to get the silver bars shifted to the residence of Pawan Kumar Sugandh, if the melting cannot be done immediately and left for Gwalior. He was told by his wife on 23-8-92 morning that two jeeps arrived and delivered 25 silver bars in Swasthik Refinery and were received by Kirit and Pankaj and also stated that melting would be started only in the afternoon because of some personal problems of Kirit. Thereupon, the detenu instructed his wife to shift the silver bars from the refinery to the residence of Pawan Kumar Sugandh for the purpose of safety. On 28-8-92 evening he came to know the seizure of 23 silver bars from the refinery and also from the residence of Pawan Kumar Sugandh; that as only 23 bars were seized as there were two more silver bars left, he instructed his wife to keep them in a secret place. He told the officers that one bar was still in the refinery and the remaining was kept in a pit under a tree on the National Highway and he agreed to accompany the officers to Hyderabad. On 18-9-1992 he came to Hyderabad by flight from Bangalore along with the offices. On 19-9-1992 he stated that he made all possible efforts to trace the two remaining silver bars but could not locate them (sic) and therefore felt that the Advisory Board on 29-12-1992. The Advisory Board considered the representation on 30-12-1992. On the basis of the report of the Advisory Board, a detailed note was prepared and the same was placed before the Assistant Secretary on 2-1-1992. The Assistant Secretary perused the note and approved the same and forwarded it to the Additional Secretary, Law and Order, G.A.D. on 4-1-1993. The Additional Secretary considered in on 5-1-1993 and thereafter forwarded the same to the detaining authority. The Secretary (political) forwarded the representation, remarks of the sponsoring department and the relevant material to the Chief Secretary who is the competent authority. The Chief Secretary considered the matter and rejected the representation of the detenu on 7-1-1993.
13. Smt. Sesharajyam, learned counsel for the petitioner raised the following contentions :
No material was placed before the detaining authority connecting the detenu with the silver except the oral statements of the co-accused. The co-accused retracted their statements. The detaining authority did not have authenticated documents to decide that the silver bars are of the foreign origin. It relied on the dealer who assayed and tested the purity of the silver in order to ascertain that it is of foreign origin. The name of the dealer is not mentioned. As he is not a Government dealer, he is not competent to give opinion that the silver seized is of foreign origin. The dealer by assaying and acid test says that they are of foreign origin and this is the only piece of evidence before the detaining authority. The dealer does not say that there are any marks of foreign origin on the silver bars. Therefore, the opinion of the dealer cannot be relied upon in support of the finding that it is of foreign origin.
14. It is argued by Mrs. Sesharajyam that the statements made by the detenu and the accomplice are not in accordance with Section 108 of the Customs Act. While recording the statements under section 108 of the Customs Act, the empowered Officers of Customs should administer a warning or a caution to the person summoned, that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. Since such a warning is not administered to the detenu and to the accomplices the so-called statements recorded under section 108 of the Act cannot be relied upon, as they are inadmissible in evidence. In support of her contention, the learned counsel relied upon a judgment of this court in Writ Petition Nos. 3103 and 3104 of 1991, which was followed by a learned single Judge in Assistant Collector of Central Excise v. Duncan Agro Industries Ltd., 1992 Cri LJ 231. In view of the above, the statements of the detenu and the accomplices recorded under section 108 of the Customs Act are inadmissible in evidence.
15. It is next contended that the correspondence between the Department of Directorate of Revenue Inter Intelligence and the Gold Fields Mineral Services, London was not placed before the detaining authority. The telegraphic message dated 12-10-1992 of the Gold Fields Mineral Services, London, reads as follows :
'Our Indian consultant, Mr. M. Daga has informed that you require some information regarding a certain brand of bar. I am informed that ZTM is a Polish brand of silver bar and my informant tells me that that these bars are sometimes found to be radio active .........'
16. Again there was a telex message on 15-10-1992 from the Senior Metals Analyst of the Gold Fields Minerals Services, London to one Mr. Shetty, which reads as follows :
'Further to your fax message dated October 14, 1992 I have managed to find a little more information about ZTM although there is little published. ZTM stands Zaklady Metalurgine Tezeninia which means the Tizebinia Metallurgical Works ......'
17. The learned counsel submitted that failure to place the correspondence before the detaining authority resulted in non-application of mind by a detaining authority.
18. It is further contended that the detenu was arrested on 19-9-1992 and in the bail application made before the Special Judge for Economic Offences, the detenu stated that he was arrested at Bangalore and was subjected to third degree methods by the officers who beat and fractured the detenu's hand to extract confession by force and that his signatures were obtained on black papers under threat and requested to direct the jail authorities to send the detenu to the Government hospital. The Special Judge by his order dated 23-9-1992 directed the Jail authorities to send the detenu to Osmania Hospital for medical examination. The doctors of the Osmania Hospital examined the detenu and gave a certificate indicating the wounds on the shoulder. Had the wound certificate been placed before the detaining authority, the authority would have arrived at a different conclusion.
19. The learned counsel submitted that the copies of the documents, namely, photographs of Kirit, Pankaj, Pawan Kumar Sugandh, Vijaya Kumar and Deepak were also not furnished and therefore the detenu was deprive of making an effective representation before the detaining authority. In support of her contention she relied on the decisions of the Supreme Court in Union of India v. Haji Mastan, : 1984CriLJ610 and Murari Lal v. State of Madhya Pradesh, : 1980CriLJ396 . She also pointed out that there is no consistency as to the place from where the silver is seized and descrepancy between the hindi version of the parawise remarks and the english version of the remarks offered by the Assistant Director with reference to the place from which the goods are seized.
20. Learned counsel also submitted that there is a delay in disposing of the representation sent by the detenu to the Central Government. According to her, the representation dated 23-10-1992 sent to the Central Government was disposed of only on 23-2-1993 i.e. only after the petitioner filed the present Writ Petition in the High Court and a notice in the writ petition was sent to the Central Government. In support of her contention, she relied on the decision of the Supreme Court in 1980 SCC (Crl) 441 : (1980 Cri LJ 1015).
21. The learned Advocate General submitted that the Advisory Board released Sri Kirit Parekh.
22. Taking up the first contention of the learned counsel that there is no sufficient material to indicate that the silver is of foreign origin and to connect the detenu with the silver seized, the detaining authority relied on the opinion given by the dealer who subjected the silver to acid test and found that the silver is of foreign origin. Under Section 123 of the Customs Act, 1962, there is a presumption in favour of the department that the goods seized are smuggled goods and the burden is shifted to the detenu to prove that they are not smuggled goods.
23. The Karnataka High Court in G. Pichaimani v. State of Karnataka, 1987 Cri LJ 913 held that - at page 915 :
'In the course of their investigation under the Customs Act, the customs authorities were free and competent to invoke Section 123 of the Customs Act if the terms and conditions provided in that Section are satisfied.'
24. On the basis of the report of the dealer who examined the silver seized, the D.R.I. officers are entitled to draw the presumption and it is for the detenu to prove the contra. There is no material with the detenu to dislodge this presumption. In the absence of material, the detaining authority is justified in detaining him on the basis of the report of the dealer coupled with the presumption under section 123 of the Customs Act. We, therefore, reject the contention of the learned counsel.
25. The next contention of the learned counsel is that the statements of the detenu and the accomplices recorded under section 108 of the Customs Act, 1962 are inadmissible in evidence as they are not recorded by following the procedure under section 164, Cr.P.C.
26. It is true that in W.P. Nos. 3103 and 3104 of 1991, a Division Bench of this Court consisting of Ramanujulu Naidu, J. and Iyyapu Panduranga Rao, J. considered the scope of the statements recorded under section 108 of the Customs Act. The relevant portion of the said judgment reads as follows :
'Section 164, Cr.P.C. uses and refers to both the expression 'Confessions and Statements.' In other words, the distinction between statements and confessions was kept in mind while enacting Section 164, Cr.P.C. It is well settled that all confessions are statements, but all statements are not confessions. It may be recalled that the Legislature advisedly used the expression 'statement' while enacting Section 108 of Customs Act authorising the empowered authority to record what the person summoned, states. A plain reading of Section 108 of the Customs Act, makes it clear that it does not enable the empowered authority to record a confessional statement from a person summoned thereunder. In the absence of any such power conferred under section 108 of the Customs Act, the empowered authority can only fall back upon Section 164 Cr.P.C., to record a statement of confessional nature from the person summoned. As already stated, Section 164, Cr.P.C., enacted that the Magistrate while recording a confessional statement, must administer the warning or caution to the person making the confessional statement, that the same would be used against him. The same caution or warning, it follows, must also be administered to the person summoned, under Section 108 of the Customs Act by the empowering authority. Non-compliance with the mandatory provisions contained in Section 164 Cr.P.C. is not curable under section 463, Cr.P.C. and renders the statement so recorded inadmissible in evidence.
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It therefore, follows that unless the empowered authority under Section 108 of the Customs Act administers the caution or the warning embodied under section 164, Cr.P.C., before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose. In other words, the impugned statements recorded by the empowered authority under Section 108 of the Customs Act are inadmissible in evidence and liable to be eschewed from consideration for any purpose, as no caution or warning embodied under section 164, Cr.P.C. was administered to the persons from whom the said statements were recorded.
The next question that falls for our consideration is whether the interpretation placed by us militates against the obligation cast on the person summoned under section 108 of the Customs Act to speak the truth. The requirement to state the truth, enacted under sub-section (3) of S. 108 of the Customs Act must be read in the light of the penalty provided for its breach, that the person summoned is liable to be prosecuted under section 193 as also under Section 228 of the Indian Penal Code. It should however, be kept in mind that Section 108 of the Customs Act does not compel a person summoned to incriminate himself. In other words, he can maintain studied silence, if the answers to the questions put to him, are likely to incriminate him. In such a situation S. 193, IPC is not attracted. Right of silence is also not an offence and it cannot be said to be an obstruction to the proceedings referred to under S. 108 of Customs Act.
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We, therefore, hold that the impugned statements are wholly inadmissible in evidence and liable to be eschewed from consideration for any purpose under any enactment.'
27. According to division bench if the procedure prescribed under S. 164, Cr.P.C. is not followed while recording the statements under S. 108 of the Customs Act, 1962, the statements so recorded are inadmissible in evidence. The above judgment was followed by a learned single Judge of this court in the case 1992 Cri LJ 231 (supra). The learned single Judge held that at page 235 :
'Since the Excise Officers who have recorded the statements from the accused have not administered the warning to the accused as required under S. 164, sub-section (2) Cr.P.C. non-compliance of the mandatory provision contained in S. 164, sub-section (2), Cr.P.C. renders the statements inadmissible in evidence. Therefore, such statements are inadmissible against the makers thereof or against the co-accused.'
28. However, the Supreme Court in Haroom Haji v. State of Maharashtra, : [1968]2SCR641 , while considering the nature of the statements recorded by the Customs Officers under section 171-A of the Sea Customs Act (corresponds to Section 108 of the Customs Act, 1962) observed that at page 1020 (of Cri LJ) :-
'...... these statements are not confessions recorded by a Magistrate under Section 164 of the Code of Criminal Procedure but are statements made in answer to a notice under section 171-A of the Sea Customs Act. As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must the specially scrutinised to finding out if they were made under threat or promise from some one in authority. If after such scrutiny, they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him ......'
29. We may also refer to another decision of the Supreme Court in K. Aruna Kumari v. Govt. of Andhra Pradesh, : 1988CriLJ411 , wherein it was held that at page 415 (of Cri LJ) :
'...... Besides the detenu accepted the allegations against himself in his statement recorded under section 161 of the Cr.P.C. It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention ..........'
30. To the same effect is the decision of the Supreme Court in Pushpadevi v. M. L. Wadhavan, : 1987CriLJ1888 . The argument that was advanced in the said case was that the statements that were recorded under section 40(1) of the Foreign Exchange Regulation Act (FERA) cannot be relied upon on the ground that they were not recorded by a Gazetted Officer of the Enforcement within the meaning of Section 40(1) of the FERA. It was argued that because every person summoned by a gazetted officer of Enforcement to make a statement under sub-section (1) of Section 40(1) is under a compulsion to state the truth on the pain of facing prosecution under sub-section (3) thereof. Sub-section (4) provides that every such investigation or proceeding shall be deemed to be judicial proceeding within the meaning of Sections 193 and 224 of the Indian Penal Code, 1860. Such being the legal position, while a statement recorded by a Gazetted Enforcement Officer under S. 40(1) can furnish sufficient and adequate material on the basis of which the detaining authority can form his opinion, it may not be so with regard to statements recorded by an officer of Enforcement authorised in that behalf under S. 39(b) of FERA. In other words, the contention before the Supreme Court was that under S. 40(1) of FERA, the statement should be recorded by a Gazetted Officer. If such statement is not recorded by a gazetted officer, it should not be relied upon a relevant material for the purpose of detaining the detenu under COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974). On the facts of the said case, the learned Judges of the Supreme Court held thus at page 1901 (of Cri LJ '87) :
'In Pooran Mal v. Director of Inspection (Investigation) of Income-tax, Delhi : [1974]93ITR505(SC) the Court held that the income-tax authorities can use as evidence any information gathered from the search and seizure of documents and accounts and articles seized. This being the substantive law, it follows that the detaining authority was entitled to rely upon the statements recorded by R. C. Singh under section 40(1) of the FERA. Even if R. C. Singh was not competent to record such statement under S. 40(1) of the FERA, the statements were clearly relatable to S. 39 of the Act. It cannot therefore be said that there was no material on which the detaining authority could have based his subjective satisfaction under sub-section (1) of S. 3 of the Act.'
31. From the above decisions, it follows that a statement recorded under Section 108 of the Customs Act, 1962 is not a confession within the meaning of Section 24 of the Evidence Act. Therefore, the Supreme Court in Haroom Haji's case pointed out that since these statements are not made subject to the safeguards under which confessions are recorded by Magistrates, they should be specifically scrutinised to find out whether they are voluntary or not. If they are voluntary they can be relied upon. Therefore, the scope of enquiry into the statements recorded under section 108 of the Customs Act is confined only to find out whether they are voluntary or not. Since these statements are not confessions within the meaning of Section 24 of the Evidence Act, the view expressed by a Division Bench of this Court in W.P. Nos. 3103 and 3104 of 1991 in not correct. The judgment of Supreme Court in Haroom Haji's case supra was not brought to the notice of the learned Judges. Therefore, the judgment in W.P. Nos. 3103 and 3104 of 1991 is not correctly decided.
32. In Asst. Collector of Central Excise v. Duncan Agro Industries Ltd. before the learned single Judge, the judgment of the Supreme Court in Haroom Haji's case AIR 1986 SC 832 : (1968 Cri LJ 1017) was relied upon by the counsel for the Central Excise. However, the learned Judge distinguished the decisions of the Supreme Court on the ground that 'that decision has not considered the question whether a Customs Officer recording the confession under section 171-A of the Sea Customs Act has to follow the prescribed procedure under S. 164 of the Code of Criminal Procedure. The Division Bench of our High Court in the case referred to above has referred to the decision of the Supreme Court in A. R. Antulay v. Ramdas Srinivasa Naik, : 1984CriLJ647 .
33. In other words, according to the learned single Judge, since there is no specific provision under section 108 of the Customs Act, how to investigate, inquire into and try the offence under that Act, the provisions of the Criminal Procedure Code are applicable and consequently the statements under section 108 of the Customs Act are to be recorded by following the procedure under section 104 of the Criminal Procedure Code failing which, the statements will be inadmissible in evidence.
34. With great respect to the learned Judge, we do not agree with the above view. The Supreme Court in Haroom Haji's case held that the statements recorded under section 108 of the Customs Act are not confessions. If they are not confessions, the question of falling back upon the requirement of Section 164 of the Criminal Procedure Code does not arise. Therefore, the view expressed by the learned Judge is not correct. Further the case before the learned single Judge arose out of prosecution under the Central Excise Act for criminal conspiracy.
35. We may also point out that the proof that is required in the case of punitive detention is different from the proof that is required in the case of a preventive detention under a special provision of law. The object of preventive detention under the special law is to prevent the detenu from committing the alleged offence. Whereas in the case of punitive detention, the object is to punish the offender who has already committed the offence. Therefore, the degree of proof that is required in the case of preventive detention is different from that required in the case of punitive detention. In the case of punitive detention, the offence which has already been completed, has to be proved beyond all reasonable doubt. Whereas in the case of preventive detention, it is sufficient if it is reasonably believed on the basis of the material before the detaining authority, that the offence under the special provision of law is likely to be committed and if there is material to that effect, the authority can detain the person. In Aruna Kumari v. Government of Andhra Pradesh (supra) the statements recorded under S. 161, Cr.P.C. were relied upon for the purpose of preventive detention. Similarly, in Pushpa Devi v. M. L. Wadhavan, while considering the nature and ambit of the statements recorded under Section 40(1) of FERA it was held that they furnish sufficient and adequate material, on the basis of which, the detaining authority can form an opinion. It follows from the above that statements recorded under S. 108 are not confessions and therefore not required to comply with S. 164, Cr.P.C. They are admissible in evidence and form sufficient and adequate material to form an opinion for the detaining authority for the purpose of preventive detention. Therefore, we reject the contention of Smt. Sesharajyam that the statements of the detenu as well as the accomplices cannot be relied upon as they were not recorded following the procedure under S. 174, Cr.P.C.
36. As regards the failure to place the correspondence between the D.R.I. officials and the Gold Fields Mineral Services, London, before the detaining authority, we may point out that the gist of the correspondence is against the detenu. The correspondence indicates that silver is of foreign origin. The evidence being admittedly against the detenu, failure to place this piece of evidence before the detaining authority did not in any way cause prejudice to the detenu. We reject the argument of the learned counsel for the petitioner.
37. It is true that the wound certificate issued by the Doctor was not placed before the detaining authority. However, in our view, it does not in any way affect the impugned order of detention passed by the detaining authority. The reason being that the detenu was found in Bangalore on 17-9-1992. On that day, he requested the D.R.I. officials that he was not in a position to make the statement and requested them to record his statement on 18-9-1992. Accordingly, his statement was recorded on 19-9-1992. On 19-9-1992, he has not complained of any threat or ill-treatment. The detenu applied for bail on 21-9-1992. Even on that day, he did not make any complaint about the alleged threat or ill-treatment. It is only on 22-9-1992, he has stated in the bail application that he has been subjected to ill-treatment. Further, the wound certificate does not indicate any external injury. In the grounds of detention, there is a reference by the detaining authority, the manner in which the detenu had applied for bail before the Special Judge. Taking into account the fact that there was not complaint of ill-treatment on 19-9-1992, we agree with the detaining authority that the allegation in his bail application on 22-9-1992 is only an afterthought. Therefore, we see no substance in the argument of the learned counsel for the petitioner in this regard.
38. The fact that there is difference in the Hindi version of the parawise remarks offered and the english version, is not of much consequence. The detenu is a graduate in english. Therefore, the hindi version is not relevant. In this context, we rely on the judgment of the Supreme Court in A. Alangarasamy v. State of Tamil Nadu, : 1987CriLJ1887 . In the said case there was a variation between Tamil and english version of grounds supplied to the detenu. Detenu knows only Tamil. The learned Judges held that the alleged difference between the two versions is not consequential. The order of detention and grounds accompanied clearly spelt out why the detenu was being detained. It was also held that the two versions were not so different as to cause any prejudice to the detenu.
39. In the present case, the detenu who is a graduate is well conversant in english. The variations between english and hindi version is only with regard to the parawise remarks offered by the Assistant Director. The order of detention and grounds accompanied thereto, clearly spelt out why the detenu was being detained. Therefore, even if there is any variation between the english version and hindi version of parawise remarks offered by the Assistant Director, who was not the detaining authority, in our view, it did not cause any prejudice to the detenu. We, therefore, reject the contention of the learned counsel for petitioner.
40. Another contention of the learned counsel is that the photographs of the persons who were said to be present on the date of seizure of the silver at the Swasthik Refinery, were not supplied to the detenu and therefore it cause prejudice to the detenu in making an effective representation to the Government. We may point out that a detenu has not asked for the supply of these photographs. Nothing prevented him from making a request to supply the said photographs. Further in Kamarunnissa v. Union of India, : 1991CriLJ2058 , the Supreme Court held that - at page 2067 (of Cri LJ) -
It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non-supply has impaired the detenus right to make an effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fact rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may be ....'
41. The petitioner has not stated how his right to representation has been affected by non-supply of the photographs. We, therefore, reject the argument of the learned counsel for the petitioner.
42. Now, we will considered the argument of Smt. Sesharajyam that the representation of the detenu dated 23-12-1992 was disposed of by the Central Government on 23-2-1993 and thus there was a delay of nearly two months in disposing of the representation.
43. According to the counter filed by the Union of India, they came to know of the representation made by the detenu against the detention order only on receipt of notice in the writ petition filed by the wife of the detenu on 4-2-1993. Thereafter steps were taken to trace out the representation by taking up the matter with the Jailor on 18-2-1993. A copy of the representation dated 23-12-1992 from the State Government forwarded by their letter dated 17-2-1993 was received on 22-2-1993. The case was processed and submitted on 23-2-1993 to the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, to consider the representation made against the detention order passed by the State Government. The Joint Secretary considered and rejected the representation of the detenu on the same day i.e. 23-2-1993. In other words, according to the Union of India, they were aware of the representation made by the detenu only after the receipt of the notice in the writ petition. We have called for the files of the Union of India. From the file which was produced before us, we found that a telegram was given to the Superintendent of Central Jail, Chanchalguda, Hyderabad by the Under Secretary (COFEPOSA), Ministry of Finance, Department of Revenue on 18-2-1993, which reads that -
'Smt. Usha Rani W/o Shri Vishan Singh alias Tippu Sone had filed a writ petition in the High Court of Judicature, Andhra Pradesh, Hyderabad stating that her husband Sri Vishan Singh, who is presently detained in your Jail under COFEPOSA Act, 1974, vide Order No. 1227/General/A-92-5 dated 4-11-1992 passed by Government of Andhra Pradesh had submitted a representation to the Government of India which has not been considered by this Department. The above said representation submitted by Vishan Singh has not been received in this office from your Jail. Request, the representation submitted by Vishan Singh, the COFEPOSA detenu detained in your Jail may be sent to this Office on the above mentioned address. Case listed for 25-2-93.'
44. The Under Secretary to the Government of India also wrote to the Chief Secretary, Government of Andhra Pradesh, on 15-2-1993, stating that -
'I am directed to refer to your telex No. 1351/General-A/92-13 dated 9-2-93 on the above subject and to say that your letter dated 29-12-92 along with the representation of Shri Vishan Singh alias Tippu Soni has not been received in this office.'
45. The Chief Secretary, Government of Andhra Pradesh, in his telex message dated 9-2-93, referred to above stated that -
'Please refer to this Government letter even number dated 29-12-1992 with which a copy of the representation dated 23-12-92 submitted by Sri Vishan Singh alias Tippu Sone, detenu under COFEPOSA Act, 1974, along with parawise remarks thereon have been sent for the consideration of the Central Government. No reply has been received so far in this regard. Please intimate whether the said representation of the detenu has been disposed of and, if so, whether decision of the Central Government thereon has been intimated to the detenu. The decision taken may please be intimated by return signal.'
46. On the above telex message sent to the Secretary to Government of India, Ministry of Finance, Department of Revenue, there is an endorsement by the concerned officer to the following effect :
'US (JLS) May kindly see. We have checked up from out records that no such letter at 'A' or representation has ever been received by COFEPOSA Section. We may write to Govt. of A.P. accordingly.'
47. We also found from the records that the report contemplated under Section 3(2) of the COFEPOSA Act along with the grounds of detention and the parawise remarks and other material were received by the Government of India on 16-11-1992.
48. From the above, it appears that the representation of the detenu was not received by the Union of India and the record discloses that the Government of India were aware of the representation made by the detenu only on receipt of the notice in the Writ Petition. It is only after the writ petition was filed in the High Court, the Chief Secretary also sent a telex message on 9-2-93 to the Government of India, to which by reply dated 15-2-1993, the Union of India stated that they have not received there presentation of the detenu said to have been made on 23-12-92. Thereafter, they have issued a telex message to the Superintendent of Central Jail on 13-2-93 to send a copy of the representation. In the meanwhile the Government of India received the representation sent by the Chief Secretary of Government of Andhra Pradesh on 17th February, 1993, on 22nd February, 1993 and the same was considered by the Joint Secretary on 23rd February, 1993. We are satisfied that there is no delay in disposing of the representation of the detenu by the Union of India.
49. In this context, we may refer to the decision of the Supreme Court in Satpal v. State of Punjab, : 1981CriLJ1867 . The facts in brief are that the representations dated 6th July, 1981 made by the detenu were received by the Superintendent, Central Jail, Amritsar and he forwarded the same to the State Government as well as the Central Government on 7th July, 1981. The State Government received the same on 8th July, 1981. On 24th July, 1981, the State Government rejected the representation and thereafter forwarded the same to the Advisory Board which by its report dated 31st July, 1981 rejected the same. On receipt of the report of the Advisory Board, the State Government confirmed the order of the detention on August 6, 1981. However, it appears that the representation made by the detenu to the Central Government for revocation of the detention order was not forwarded by the State Government to the Central Government till 23rd September, 1981. Thereafter, the Central Government considered the representation and rejected the same on 28th September, 1981. The State Government sent the representation after a lapse of two months and 15 days to the Central Government. It was held by the Supreme Court in the said case that there was no denial of the right of making a representation to the Central Government for the revocation of the detention order. It was further held by the Supreme Court at page 1871 (of Cri LJ) :
'There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government i.e. the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under S. 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The court must look at the substance of the matter and not act on mere technically.'
50. On the facts of the present case, we are satisfied that the Union of India is not aware of the representation of the detenu dated 23-12-1992 sent by the Government till the Writ Petition was filed by the wife of the detenu on 4-2-93 and notice thereto was received by them. They actually received the representation forwarded by the State Government on 17-2-1993 and thereafter the Union of India disposed of the same with promptitude.
51. We may now consider the judgment of the Supreme Court in Vijay Kumar v. State of Jammu, : [1982]3SCR522 on which the learned counsel for the petitioner placed reliance. We may refer to the facts of the said case in brief : The detenu was served with the detention order on 8th July, 1981 and the detenu submitted his representation on 29th July, 1981, which was forwarded by post to the Government in Srinagar on 29th July, 1981. On 6-8-1981 a wireless message was sent making reference to the wireless communication from the Superintendent of Jails that the representation referred to in the wireless message of the Jail Superintendent has still not been received at Srinagar. He requested the Superintendent to send a duplicate copy of the same by air consignment. The representation was received in the office on 12th August, 1981. The comments were called for on 14th August, 1981. The case was examined and processed on August, 24, 1981 and the file was placed before the Home Secretary on August, 25, 1981, who recommended the same for approval on August 28, 1981 and the Chief Minister rejected the representation on August 31, 1981 which was communicated to the detenu on 1st September, 1981. On the facts of the above case, the learned Judges of the Supreme Court pointed out that the representation sent on 29th July, 1981 through the Superintendent of Jails, Jammu, reached Srinagar, the summer capital of the State on August 12, 1981, which shows a timelag of 14 days. The representation received on 12th August, 1981 was disposed of on 31st August, 1981 and there has been a time lag and the explanation offered by the concerned Officer was not convincing. In that context, it was held that there was delay in disposing of the representation. It was also pointed out that there was a reminder on 6 August, 1981 that a representation of the detenu has been sent which was not taken into consideration. The authority making an order of detention must afford the detenu an earliest opportunity of making a representation against the order of detention and this requirement would be illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. Having regard to the fact that the detaining authority failed to explain the delay in disposing of the representation. It was held that the detention order is vitiated.
52. The learned counsel also brought to our notice the decision of the Supreme Court in Pabitra Rana v. Union of India, : [1980]2SCR869 . In that case, there was an unexplained and unreasonable delay of one month and five days in disposing of the representation filed by the detenu against his order of detention under section 3(1) of the COFEPOSA Act and therefore the Supreme Court set aside the detention order.
53. In the present case, as already pointed out by us there is no delay on the part of the Union of India in disposing the representation made by the detenu.
54. For the reasons mentioned above, we see no merit in this petition and it is accordingly dismissed.
55. Petition dismissed.