Suvarna Mala Venkatesh Desai Vs. Union of India (Uoi) and ors. - Court Judgment

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- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - 1. petitioner is the wife of one venkatesh atmaram desai who is detained under the provisions of section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974, hereinafter referred to as the 'cofeposa act'.she seeks in this petition for a writ of habeas corpus the quashing of the order of detention made against her husband as well as of declaration under section 9(1) and his consequent release. 5. as regards the first point, the learned counsel submitted that it is apparent that the only material relied upon by the detaining authority to be satisfied that an order of detention to prevent the detenu from abetting the smuggling of goods was the material incorporated in paragraphs 10, 22 and 23 of the grounds of detention. 6. it was, however, contended by shri bhobe, the learned public prosecutor, that the averments made in paragraphs 10, 22 and 23 of the grounds of detention clearly establish that there was a conspiracy to smuggle goods of foreign origin into the country. now, the grounds of detention clearly denote that there was a conspiracy for smuggling goods of foreign origin into india and krishnarao rane as well as the detenu were parties to such conspiracy. hence, from this material it is not possible to hold that the detenu knew that the bags of charcoal were to be used for camouflaging good which were yet to be smuggled.g.f. couto, j.1. petitioner is the wife of one venkatesh atmaram desai who is detained under the provisions of section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974, hereinafter referred to as the 'cofeposa act'. she seeks in this petition for a writ of habeas corpus the quashing of the order of detention made against her husband as well as of declaration under section 9(1) and his consequent release. the order of detention was purportedly made with a view to preventing the detenu from abetting the smuggling of goods by the third respondent and served along with the grounds of detention and the list of documents relied upon on 17th june, 1986 and the declaration under section 9(1) of the cofeposa act, ostensibly issued by the second respondent because the detenu is likely to abet the smuggling of goods, was served on him on 19th july, 1986.2. the relevant facts that lead to the making of the aforesaid order and declaration as revealed in the grounds of detention may be stated. on information received on 19th february, 1986 that, landing of contraband goods of foreign origin had taken place somewhere at calvim, goa, on the night of 17th/18th february, 1986, the customs officers initiated an investigation and in the course thereof, one kalidas kashinath raikar was interrogated. he admitted that his truck bearing registration no. gds 6619 had been used in the transportation of contraband goods on the night of 17th/18th february, 1986 and taken to the duler petrol pump near mapsua. as a result of this information, the customs officer proceeded to the said place but the truck was not found and on search was discovered near the mapsua fish market on 19th february, 1986. the said truck was loaded with 141 packages of contraband. in the course of the interrogation of said kalidas, it was disclosed that one sunil natekar was to come to the duler petrol pump to escort the truck with the contraband goods to some unknown destination. accordingly, the customs officers went back to the said petrol pump and apprehended sunil natekar, who on being interrogated admitted that he had arranged the landing of contraband goods on the night of 17th/18th february, 1986 at a place known as patim, near calvim at the britona creek. he also disclosed that the contraband goods were to be transported in a truck bearing registration no. gds 6527 and to be stored in farm near honda village. as a result of this information, the custom officers along with the said natekar proceeded to the said firm and they found an empty truck bearing registration no. gds 6527 near kapdi bhojanalaya at bhicholim. they proceeded further and found in a farm belonging to the honda saleli village panchayat 74 packages of contraband goods. all the packages recovered either at mapsua or honda, were containing foreign origin goods consisting of wrist watches, video cassettes, tapes, button cells, goggles, spectacle frames and television sets etc., with the market value of about rs. 77,82,516/-. the investigation further revealed that the said contraband goods had been transhipped from an arab dhow to two fishing trawlers and brought to britona and thereafter, taken to the said two places at duler and honda. it was further disclosed that goods taken in the truck gds 6527 had been unloaded and stored at honda saleli panchayat farm during the night of 18th february, 1986 in accordance with a prior arrangement between sunil natekar and one sadguru rama parab with the sarpanch of honda saleli village panchayat by name krishnarao appaji rane. the said krishnarao rane had also kept 200 bags of charcoal ready for the purpose of covering and camouflaging the consignment of contraband goods during its transportation to bombay. these charcoal bags had been kept in the said farm with help of the detenu. the investigation also revealed that on 15th february, 1986 the said krishnarao appaji rane had requested the detenu at arrange the filling up of charcoal at his store of saleli saying that said bags filled with charcoal were required to cover the contraband goods of foreign origin which were to be brought to honda panchayat farm by a person hailing from sawantwadi taluka in maharashtra, and that latter on, the said krishnarao rane told the detenu to remove the bags of charcoal which had been earlier filled by him with the help of his brother and hired labourers.3. on basis of this material, the detaining authority stated in paragraph 36 of the grounds of detention that he was fully convinced that there was sufficient cases to pass the detention order against the detenu with a view to preventing him from abetting the smuggling of goods.4. mr. karmali, the learned counsel appearing for the petitioner challenges the above order of detention and declaration under section 9(1) of the cofeposa act mainly on three grounds. he first contended that it is apparent that the only material relied upon by the detaining authority to clamp down the detention order on the detenu is that which is incorporated in paragraphs 10. 22 and 23 of the grounds of detention. such material consists in the allegation that krishnarao appaji rane had requested the detenu to fill 200 bags with charcoal and to take them to the honda saleli panchayat farm for the purpose of covering contraband goods which were to be brought from sawantwadi to the said farm by a party from the maharashtra state and that the said charcoal bags were meant to conceal the said contraband goods in the transportation thereof from the said farm to bombay. no other material was placed by the sponsoring authority before the detaining authority. according to the learned counsel, this material is not sufficient to justify the conclusion that the detenu was abetting the smuggling of goods and at most, such material will indicate that he was helping or assisting the future transport of smuggled goods. secondly, the learned counsel submitted that the detenu is not conversant with the english language, a fact that was recognized by the detaining authority himself, for a translation of the grounds of detention in marathi had been supplied to the detenu. now, english version of the grounds of detention is in variance with the marathi version which is distorted in material and relevant points. therefore, according to the learned counsel, the two facts of article 22(5) of the constitution have been violated, for on one hand, no proper communication of the grounds of detention was made and on the other, detenu was deprived of his right to make an effective representation against his detention. thirdly, the learned counsel urged that a marathi version of the declaration under section 9(1) was supplied to the detenu and this translation is also distorted in material points and suffers from the same defects as the marathi translation of the grounds of detention.5. as regards the first point, the learned counsel submitted that it is apparent that the only material relied upon by the detaining authority to be satisfied that an order of detention to prevent the detenu from abetting the smuggling of goods was the material incorporated in paragraphs 10, 22 and 23 of the grounds of detention. according to the learned counsel, the detenu was not at all aware that the goods were yet to be smuggled, and it is the case of the sponsoring authority itself that krishnarao rane had told him that the charcoal bags were meant to cover the contraband goods which were to be brought to honda by a party from sawantwadi. krishnarao rane had not informed the detenu from where the said contraband goods were to be brought and he had also not stated that the goods had not already been smuggled into the country. this being so, the material placed by the sponsoring authority before the detaining authority would warrant, at the highest, an inference that the detenu was helping or assisting krishnarao rane in the transporting or concealing of goods already smuggled into the country. the learned counsel then contended, placing reliance on two unreported judgments of the division bench of this high court (criminal writ petition no. 329 of 1984, decided on 12th november, 1984 and criminal writ petition no. 357 of 1984, decided on 27th november, 1984), that since the detention order was passed on the head of preventing the abetment of smuggled goods, the same is liable to be quashed as the material placed does not justify the conclusion that the detenu was abetting the smuggling of goods.6. it was, however, contended by shri bhobe, the learned public prosecutor, that the averments made in paragraphs 10, 22 and 23 of the grounds of detention clearly establish that there was a conspiracy to smuggle goods of foreign origin into the country. he contended that smuggling within the meaning given to the word in the cofeposa act has a very wide connotation and includes all aspects and stages of smuggling of goods. smuggling activity undoubtedly is not restricted, according to the learned counsel, to a single act but spreads over a period of time and embraces all the ancillary and connected matters, such as choice of the landing place, the transporting, keeping and concealing of smuggling goods. now, the grounds of detention clearly denote that there was a conspiracy for smuggling goods of foreign origin into india and krishnarao rane as well as the detenu were parties to such conspiracy. the detenu as the grounds 10, 22 and 23 of detention establish, was aware that his help was required to conceal the goods which were to be smuggled during night of 17th/18th february, 1986, at patim at the britona creek. hence, according to shri bhobe, knowing fully these facts the detenu had filled the bags with charcoal and taken them to the honda saleli panchayat farm. hence, this activity of the detenu constitutes abetment of smuggling of goods.7. there is no doubt that the grounds of detention, particularly grounds 10, 22 and 23 indicates that there was a conspiracy to smuggle goods into the country but insofar as the detenu is concerned, his participation, as disclosed in the said grounds, appears to have been only in filling some bags with charcoal and to take them to the honda saleli panchayat farm. it is clear from ground 22 of detention that krishnarao rane had not told him that the goods were yet to be smuggled. according to the sponsoring authority, the said rane told the detenu that the bags were needed to camouflage the transportation of smuggled goods which would be brought to honda from sawantwadi to bombay. krishnarao rane, according to the sponsoring authority, had not stated that the goods were yet to be smuggled or that the goods had been already smuggled. he confined himself to say that contraband goods were to be brought to honda from sawantwadi and were to be transported to bombay. hence, from this material it is not possible to hold that the detenu knew that the bags of charcoal were to be used for camouflaging good which were yet to be smuggled. this being so, in our view, there is no nexus between the material placed before the detaining authority and abetment of smuggled goods and, therefore, we find that the said facts were not warranting the inference drawn by the detaining authority and consequently, the detention order for the purpose of preventing the detenu from abetting the smuggling of goods into the country.8. in this connection, we may note that it is undoubtedly true that smuggling as detained in the cofeposa act has a wide connotation and it includes all the activities enumerated in clause (i) to (v) of its section 3(1). these clauses provide for the various heads of detention and though clause (i) and clause (ii) may, as observed by the supreme court in narendra purshotam umrao and other v. b. b. gujral and others, : 1979crilj469 , operate on different fields, which can some times overlap, still a wider meaning is to given the word smuggling in section 2(e) of the act with a view to broaden scope of preventive detention. section 3(1) of the act provides for different grounds of detention and hence, their lordship of the supreme court held that it must be, therefore, assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct and that both the grounds in clauses (i) and (ii) being separate grounds of detention, that is, to take in all such activities which result in accomplishment of smuggling of contraband goods. as observed by the division bench of this court in hajarimal veerchand jain v. state of maharashtra and others, criminal writ petition no. 329 of 1984 :---'the necessary corollary of this conclusion is that the activity of smuggling of goods mentioned in clause (i) of sub-section (1) of section 3 must be attributed restricted meaning. import of the phrase 'smuggling of goods' used in clause (i) of sub-section (1) of section 3 is not as wide as the meaning attached to the word 'smuggling' by the definition given in section 2(e) of the cofeposa act read with section 2(39) of the customs act. for the purpose of basing an order of preventive detention activities contemplated by clauses (i) and (v) are distinct activities and even though generally speaking activities contemplated by clauses (i) to (iv) may come within the purview of section 2(e), these activities cannot be considered as 'smuggling of goods' within the meaning of clause (i). smuggling of goods contemplated by clause (i) of sub-section (1) of section 3 would, therefore, mean all activities of smuggling other than those mentioned in clauses (ii) to (v). hence a person found indulging in the activities mentioned in clauses (iii) to (v) cannot be detained for smuggling of goods or abetting smuggling of goods unless the activities are of such nature and volume that they lead to the conclusion that not only the detenu was indulging in those activities but was also smuggling goods or was abetting smuggling thereof. no doubt the activities maintained in clauses (i) to (v) may in a given case be overlapping. in such a case each of the distinct grounds which is established on the basis of the material placed before the detaining authority must be maintained in the grounds of detention, and in the detention order using the disjunctive 'and', and not 'or' because in the latter case the order would be open to challenge on the ground that the detaining authority was not sure as to for which distinct activity contemplated by clauses (i) to (v) the order of detention is sought to be made. 'the same view was reiterated by the same bench (justices jahagirdar and jamadar) in harbhagwandas vasuram behal v. state of maharashtra and others. criminal writ petition no. 357 of 1984. in our view, therefore, though a wide connotation is given to section 2(e) of the cofeposa act to the word 'smuggling' nonetheless, the heads of detention enumerated in clause (i) to (v) of section 3(1) being distinct and separate, there should be a nexus between the facts and the particular head invoked for detention. as we already said, such nexus does not in our opinion, exist in the case at hand and , therefore, on this ground alone the same order cannot be sustained.9. coming now to the second ground of challenge, mr. karmali submitted that the translation of paragraph 36 of the grounds of detention into marathi is distorted to such an extent that the true meaning of the english version was not communicated to the detenu in order to enable him to make an effective representation. he submitted that in the english version of the said paragraph it is stated as follows :---'i have come to the conclusion that you have abetted the smuggling of goods worth several lakhs of rupees of into the country. therefore, i am fully convinced that there is sufficient cases to pass detention order against you with a view to preventing you from abetting the smuggling of goods.'according to shri karmali, there are two defects in the marathi translation one being that the words 'smuggling' was not correctly translated and the other word 'abetting' was not at all translated into marathi. in fact, the smuggling of goods was translated into marathi by the expression 'zakat choricha mal' zakat choricha mal' conveys the idea of evading duty and not the meaning of 'smuggling'. therefore, without saying what kind of duty had been evaded, the marathi version of the said ground 36 did not convey to the detenu the true import of the said paragraph. the correct translation of smuggled goods was according to the learned counsel 'taskarimal'. secondly, the word 'abet' or 'abetting' was not translated at all in the marathi version, for the english words abet and abetting had been written in devanagiri script in the said ground of detention. it is true that the word 'dushkrutya' has also been used and soon after this word the english word 'abet' written in devanagiri was put into brackets. this is highly misleading, for the detenu may have thought that 'dushkrutya' which means a sinful or wrongful act was synonymous of abetment. the marathi translation is, therefore, so distorted and unfaithful that it is to be held that no proper communication of the said ground was made to the detenu and as a result, he could not understand why he was being detained and consequently could not make an effective representation.10. mr. bhobe, however, submitted that the translation of the expression 'smuggled goods' into marathi is quite correct for zakat chori means also evasion of customs duty. he submitted that we accepted this view in criminal writ petition no. 13 of 1986 that was disposed by us on 3rd instant. he then contended, relying also in what we held in the same judgment, that translation of the grounds of detention need not have the same high standards that the translation of the order of detention required. it is sufficient according to the learned counsel that the true meaning of the grounds is conveyed and if that is done, there is no reason for quashing an order of detention only because the translation of each word used in the grounds of detention is not very accurate. he then submitted that it is wrong to say that the words 'abet' or 'abetting' had not been translated into marathi. in fact, the words 'abet' or 'abetting' had been translated into marathi by using the word 'dushkrutya' and to avoid any confusion or misunderstanding, the english word 'abet' or 'abetting' written in devanagiri script had been added into brackets soon after the word 'dushkrutya'. in the circumstances, the true meaning of the english version of the ground 36 was conveyed in the marathi version thereof and, therefore, on that ground the detention order is not vitiated.11. translations of grounds of detention need not have the strict standard of a translation of the detention order where each word as regards the head in section 3(1) under which the detention is purported to have been made has a technical meaning and is, therefore, to be translated with utmost accuracy in order to convey its meaning. it suffices, as we held in criminal writ petition no. 13 of 1986, that translation of the grounds of detention conveys the correct meaning of english version thereof, the improper or inaccurate use of one word here and there in the translated version being inconsequential if otherwise the true meaning is not distorted. in the present case, the grievance of shri karmali is that the expression 'smuggled goods' ought to have been translated as 'taskarimal' and not as 'zakat choricha mal', for 'zakat chori' means only evading of duty and hence, such evasion could be of any kind of duty. mr. bhobe relying on the dictionary meaning of the expression 'zakat chori' contended that as 'zakat chori' means also evasion of customs duty, it cannot be said that a completely wrong idea had been given by the said translation. it may be that the accurate and proper translation of the expression 'smuggled goods' is, as submitted by shri karmali, 'taskarimal' but we are of the view that the expression 'zakatchoricha mal' used in the context in which the same was used in the grounds of detention is sufficient to convey the same idea and as such, it would be wrong to hold that such translation is entirely distorted and unfaithful. we are, therefore, unable to agree with shri karmali on this point. insofar as the omission of the translation of the word 'abet' into marathi, we think shri karmali is not right, for the word 'dushkrutya' was used and soon after it, the english word abet written in devanagiri script has been added into brackets. this indicates that the word 'dushkrutya' was meant to translate into marathi the word 'abet' used in the english version. however, the word 'dushkrutya' means a sinful or wrongful act and by no stretch of imagination the said word conveys the meaning of the english word 'abetment'. the use of the english word 'abet' written in devanagiri script soon after the word 'dushkrutya' worsens the situation, for as rightly pointed out by shri karmali that may create an impression that abetment is synonymous of a sinful or wrongful act. this being so, we are bound to accept the submission of shri karmali that the wrong translation of the word 'abetment' is fatal since on one hand, it cannot be said that there is a proper communication of the ground, and on the other, such improper communication might have prejudiced the detenu and impaired his ability of making a proper representation against the order of detention.12. the last submission of shri karmali had been that the marathi version of the declaration under section 9(1) of the cofeposa act which was served on the detenu is not a faithful and correct translation inasmuch as the word 'abetment' was translated as assisting in the activities of smuggled goods, and mainly, because instead of stating that the detenu was likely to abet the smuggling of goods into and through the coast of goa, in the marathi translation, it was stated that the detenu was likely to assist in the activities of smuggling goods in to goa and through the cast of goa. according to the learned counsel, the expression into goa and through the coast of goa conveys a completely different idea and, therefore, here again, the detenu was prejudiced and his ability of making an effective representation was impaired. admittedly, the word 'abetment' has been translated in the marathi version of the declaration under section 9(1) by use of the word 'madat'. this word means assist and therefore, in our view, the said word conveys quite accurately the meaning of abetment. insofar as the translation of the expression into and through the coast of goa as into goa and through the coast of goa, though shri karmali vehemently urged that these are two different things which touch the vulnerable area spoken of in section 9 and as such, an erroneous communication may prejudice to a great extent the detenu, we find that there is no force in this submission, for the expression 'into goa and through the coast of goa' conveys the same meaning as the english expression into and through the coast in the context it was used.13. shri karmali finally submitted, quoting from a couple of decisions of the supreme court, that personal liberty of a citizen has to be protected, and therefore, specially in cases where a citizen is detained without trial, the procedure laid down in law has to be strictly adhered to. we fully agree with the learned counsel. smuggling activities certainly are nefarious and highly regrettable. we are conscious that, unfortunately, the evil of smuggling is on the increase, posing a serious danger to the country and impairing its economy. the need of stringent measures to eradicate, or at least, to curb it, is therefore, of paramount importance and has become imperative. but we are no less conscious that personal liberty is one of the pillars of a free democratic society and as such, no one should be deprived of it unless in accordance with the procedure established by law, for the power to detain without trial is an extraordinary power, constituting an encroachment on personal liberty see smt. icchu devi choraroa v. union of india and others, : [1981]1scr640 . in the present case, we painfully find that the legal procedure has not been observed depriving thereby the detenu of the safeguard he was entitled to with the result that the challenged order of detention and the declaration under section 9(1) are vitiated and liable to be quashed. as observed in rattan singh and another v. state of punjab and others, a.i.r. 1982 s.c. 1:---'may be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the indian economy. but the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus.'14. the result, therefore, is that the rule is made absolute in terms of prayer (a). the detenu to be released forthwith, if not required in any other case.