Shamsher Singh and ors. Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
constitution of india - article 226 and presidential order, 1975 suspension of articles 14, 21 & 22--executive cannot take away fundamental rights without sanction of legislature.;fundamental in the fabric of our democratic constitution that before the execution that before the executive can take away the liberty of a citizen it must have the authority of law. under our constitution it is for the legislature to make the lows for the executive to carry out those laws, but it is the exclusive jurisdiction of the court to interpret the laws. the rule of law is evolved by the legislature making the laws and the courts interpreting the law by judicial decisions.;(b) constitution of india - article 226 and presidential order, 1975 suspension of articles 14, 21 & 22--habeas corpus--court can enquire whether the detention order has sanction of law--article 226 not affected by the presidential order.;the writ of habeas corpus is nothing but an order of the court to bring the cerous of the person of the detenue with a view to seeing under what authority of law he is kept under detention, if the court finds that the detention is without the authority of law, it will be competent to grant a proper relief. fundamental rights undoubtedly will not be available to the citizen un account of their suspension, but the court can enquire as to whether the order under which the person is detained has the sanction of the law behind it.;article 226 remains unaffected. the court can certainly entertain the writ petition and examine whether the citizen is not debarred from invoking the aid of the court. if he is not able to make out any case for exercise of the powers under article 226 of the constitution by the court, he may not succeed.;(c) conservation of foreign ex hunger and prevention of smuggling activities act, 1074 - section 303 and contusion of india--article 22--but section (3) dues not survive when article 22 is suspended.;(d) constitution of india - 226 detention order--it cannot be challenged on ground that the act & the rules contravene articles 14, 21 & 22 but it can be challenged that vialates provisions of the act & the rules.;an order of detention (there under the defence of india act and the rules) cannot be challenged in the proceedings under article 226 of the constitution on the ground that the act and the rules contavene the fundamental rights under article 4, 21 and 2, but the detenue can challenge the detention order on the ground that it is in volition of the mandatory provisions of the defence of india act and the right of the detenue to move for his release on such a ground cannot be affected by the presidential order suspending the fundamental rights.;if a detenue contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised by the detenue cannot be said to be barred at the threshold, by the presidential order.;(e) controvert on foreign exchange and prevention of smuggling activities act, 1974 - section 3--detention order--satisfaction of the detaining authority is necessary--grounds for satisfaction.;the preliminary condition for detention is the satisfaction of the detaining authority i.e. that with respect to the person concerned it is satisfied that with a view to preventing him from acting in any mariner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from: (1) smuggling goods, or (2) abetting tie smuggling of goods, or (3) engaging in transporting or conceding or keeping smuggled goods, or (4) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (9) harbouring persons engaged in smuggling of goods or in abetting the smuggling of goods, is necessary so to do, make an order directing that such person be detained.;(f) conservation of foreign exchange & prevention of smuggling activities act, 1974 - section 3--detention order issued by secretary to the government--held, delegation of authority in his name is not necessary. section 3(1) enables the government to specially empower any officer of the government not below the rank of a joint secretary to issue such order. the secretary to toe government in the home department is an officer of the government and it is not necessary that delegation of the authority should be in the name of the officer.;(g) evidence act - section 91--detention order is gazetted & statutory--section 91 is not attracted.;(h) conservation of foreign exchange & prevention of smuggling activities act, 1974 - section 3 form of detention order--held, requirements of law satisfied.;(i) conservation foreign exchange & prevention of smuggling activities act, 1974 - section 3--detention order--detaining authority rot precluded from considering same material in fresh order.;(j) conservation of foreign exchange & prevention of smuggling activities act, 1974 - section 3--material before detaining authority--high court not to look into its genuineness. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - order whereas i, ram singh, secretary to the government of rajasthan, home department, am satisfied with respect to the person known as shamsher singh s/o shri heeraial jain, residing at kundigaron-ka-rasta, jaipu, that with a view to preventing him from engaging in keeping smuggled goods, and dealing in smuggled goods otherwise than by engaging in transporting or keeping smuggled goods, it is necessary to make the following order; 25/- ilegally imported into india were recovered in your statement dated 30.6,73, made before the superintendent of customs and central excise, jaipur, you sated that you bad purchased sixty pieces of art silk fabrics, 12 nail cutters and packs of face power, all of foreign origin, from bombay and that 29 pieces of art silk fabrics and 5 nail cutters had been disposed of by you by sale while 7 pieces of art silk fabrics had bee a gifted by you to your relatives and friends. 2. your business premises as well as residential premises were gain searched on 11-4-74 by the officers of the customs department and as a result thereof textiles of foreign origin legally imported into india valued at rs. in your statement dated 11-4-74 made before the inspector of customs and central exise, jaipur immediately after the seizure you stated that though you had been dealing in miscellaneous goods, like cosmetics, hosiery and general goods, you had purchased the seized foreign made textiles from an unknown person who came from bombay. a show cause notice dated 30-5-74 in this case had been issued to you by the assistant collector (prev) customs and central excite, jaipur copies of pancbnama dated 11-4-74, statement hated 11-4-74 and show cause notice dated 30-5-74 are attached and marked as annexure 'd',e' and 'f' respectively. they now be broadly divided under-two major bead grounds bearing on the form of the order, its execution and it omitting certain material particulars like place of detention.orderwhereas i, ram singh, secretary to the government of rajasthan, home department, am satisfied with respect to the person known as shamsher singh s/o shri heeraial jain, residing at kundigaron-ka-rasta, jaipu, that with a view to preventing him from engaging in keeping smuggled goods, and dealing in smuggled goods otherwise than by engaging in transporting or keeping smuggled goods, it is necessary to make the following order;now, the refore, in exercise of the powers conferred by section 3(1) of the conservation of fereign exchange and prevention of smuggling activities act, 1974 (act 62 of 1974), 1, ram singh, secretary to the government of rajasthan, home department, direct that the said shri shamsber singh s/o shri heeraial jain be detained.sd/- ram singh(ram singh)secretary to the government.place jaipurdate 19th dec, 1974.toshri shamsher singh,s/o shri heeraial jain,residing at kundigaron ka rasta,jaipur.it was issued by shri ram singh, secretary to the government in the home department on 23.12.74 the grounds for detention were communicated to petitioner by the detaining authority. as considerable arguments have centered round the ground in one form or the other, we may read document no. 2 on record which embodies the grounds in full:government of rajasthanhome (gr. v ) departmentno, f. 8 (307), h. gr. v/74jaipur dated thedecember 23, 1974.(through the officer-in-charge of the central jail, jaipur)grounds on which detenention order no. 8(299) h gr. v/74 dated 19th december, 1974 has been made against shri shamsher sinsh s/o shri heeralal jaim, under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974.1. the business premises of the firm m/s saudagar shamsher singh, of which you are the sole proprietor, were searched by by the officers of the customs department on 30.6.73 and 24 pieces of textiles of foreign origin, and other goods of foreign origin, namely, seven nail cutters valued at rs. 25/ and two packs of face powder valued at rs. 25/- ilegally imported into india were recovered in your statement dated 30.6,73, made before the superintendent of customs and central excise, jaipur, you sated that you bad purchased sixty pieces of art silk fabrics, 12 nail cutters and packs of face power, all of foreign origin, from bombay and that 29 pieces of art silk fabrics and 5 nail cutters had been disposed of by you by sale while 7 pieces of art silk fabrics had bee a gifted by you to your relatives and friends. the case was adjudicated by the assistant collector, customs and central excise, jaipur and a penalty of rs. 260/- was imposed on you besides absolute confiscation of the recovered goods, vide his order dated 17.7.74 the copies of the panchnama dated 30-6-73, statement dated 30.6.73 and adjudication order dated 17.7.74 are enclosed and marked as annexure 'a' 'b' and 'c' respectively.2. your business premises as well as residential premises were gain searched on 11-4-74 by the officers of the customs department and as a result thereof textiles of foreign origin legally imported into india valued at rs. 630/- and rs. 1050/- were recovered from the business and residential premises respectively. in your statement dated 11-4-74 made before the inspector of customs and central exise, jaipur immediately after the seizure you stated that though you had been dealing in miscellaneous goods, like cosmetics, hosiery and general goods, you had purchased the seized foreign made textiles from an unknown person who came from bombay. a show cause notice dated 30-5-74 in this case had been issued to you by the assistant collector (prev) customs and central excite, jaipur copies of pancbnama dated 11-4-74, statement hated 11-4-74 and show cause notice dated 30-5-74 are attached and marked as annexure 'd', 'e' and 'f' respectively.3. your business premises were again searched on 6-7-1974 by the officers of the customs department and textiles of foreign origin illegally imported into india valued at rs. 37,460/- were recovered from your business premises. for these goods you had no supporting vouchers to indicate their lawful import or acquisition. this is clear from your statement dated 7-7-74 made before the superintendent of customs (prev) jaipur under section 108 of the customs act, 1962. copies of the panchnama dated 7.7.74 and statement dated 7.7.74 are annexed as annexure 'g' and 'h' respectively.the above grounds are communicated to you in pursuance of clause 5 article 22 of the constitution of india.if you wish to make any representation against the order of detention, you may do so and address it to the secretary to the government of rajasthan, home department, secretariat, jaipur and forward it through the officer-in-charge of the central jail, jaipur.sd/ ram singh23-12-74(ram singh)secretary to the government of rajasthanhome department.3. the petitioner challenges this order on a number of grounds. they now be broadly divided under-two major bead grounds bearing on the form of the order, its execution and it omitting certain material particulars like place of detention. we will be dealing with these grounds in the later part of our judgment. these ground are contained in para-6 of the petition. the other major ground of challenge is regarding the validity of the detention self on account of there being no satisfaction of the detaining authority regarding the necessity of detention, the grounds being wholly insufficient or incomplete in several respects and not being related to the object of detention. these grounds are set out extensively in paras 2 to 4 of the petition. we will be dealing with these grounds to hereinafter.4. at the very out set, however, the learned public prosecutor confronted us with the presidential order suspending the fundamental rights of the citizens within the framework of the proclamation of emergency under article 359(1) of the constitution he raised a preliminary objection that the right to move any court with respect to he orders of detention which had already been made under the anti smuggling act and other acts of similar nature for the enforcement of rights conferred by articles 14, 21 and 22 of the constitution being suspended, the petitioner has no right to invoke the jurisdiction of the court for examining the validity of his order of desertion and all that we can do is to postpone the hearing as long as the presidential proclamation regarding suspension of fundamental rights remains in force. we may deal with this question first with a view to examining the area within which a citizen ran invoke the jurisdiction of this court in the frame work of the proclamation of emergency and the presidential order suspending the fundamental rights, article 359 reads:article 359 suspension of the enforcement of the rights conferred by part iii during emergencies. - (1) where a proclamation of emergency is in operation, the president may by order declare that the right to move any court for the enforcement of such of the rights conferred by part iii as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.the presidential order of emergency reads:proclamation of emergencyin exercise of the powers conferred by clause (1) of article 352 of the constitution, i, fakhruddin ali ahmed, president of india, by this proclamation declare that a grave emergency exists whereby the security of india is threatened by in ernal disturbance.new delhithe 25th june, 1975.f.a. ahmed,president.we may then read the presidential order suspending the fundamental rights:mnistryof home affairs

Judgment:
ORDER

Whereas I, Ram Singh, Secretary to the Government of Rajasthan, Home Department, am satisfied with respect to the person known as Shamsher Singh s/o Shri Heeraial Jain, residing at Kundigaron-Ka-Rasta, Jaipu, that with a view to preventing him from engaging in keeping smuggled goods, and dealing in smuggled goods otherwise than by engaging in transporting or keeping smuggled goods, it is necessary to make the following order;

Now, the refore, in exercise of the powers conferred by Section 3(1) of the Conservation of Fereign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 62 of 1974), 1, Ram Singh, Secretary to the Government of Rajasthan, Home Department, direct that the Said Shri Shamsber Singh s/o Shri Heeraial Jain be detained.

sd/- Ram Singh

(Ram Singh)

Secretary to the Government.

Place Jaipur

Date 19th Dec, 1974.

To

Shri Shamsher Singh,

s/o Shri Heeraial Jain,

residing at Kundigaron Ka Rasta,

Jaipur.

It was issued by Shri Ram Singh, Secretary to the Government in the Home Department On 23.12.74 the grounds for detention were communicated to petitioner by the detaining authority. As considerable arguments have centered round the ground in one form or the other, we may read document No. 2 on record which embodies the grounds in full:

GOVERNMENT OF RAJASTHAN

HOME (GR. V ) DEPARTMENT

NO, F. 8 (307), H. Gr. V/74

Jaipur dated the

December 23, 1974.

(Through the Officer-in-charge of the Central Jail, Jaipur)

Grounds on which detenention Order No. 8(299) H Gr. v/74 dated 19th December, 1974 has been made against Shri Shamsher sinsh s/o Shri Heeralal Jaim, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

1. The business premises of the Firm M/s Saudagar Shamsher Singh, of which you are the sole proprietor, were searched by by the officers of the Customs Department on 30.6.73 and 24 pieces of textiles of foreign origin, and other goods of foreign origin, namely, seven nail cutters valued at Rs. 25/ and two packs of face powder valued at Rs. 25/- ilegally imported into India were recovered In your statement dated 30.6,73, made before the Superintendent of Customs and Central Excise, Jaipur, you sated that you bad purchased sixty pieces of Art Silk Fabrics, 12 Nail cutters and packs of face power, all of foreign origin, from Bombay and that 29 pieces of Art Silk Fabrics and 5 nail cutters had been disposed of by you by sale while 7 pieces of Art Silk Fabrics had bee a gifted by you to your relatives and friends. The case was adjudicated by the Assistant Collector, Customs and Central Excise, Jaipur and a penalty of Rs. 260/- was imposed on you besides absolute confiscation of the recovered goods, vide his order dated 17.7.74 The copies of the Panchnama dated 30-6-73, statement dated 30.6.73 and adjudication Order dated 17.7.74 are enclosed and marked as Annexure 'A' 'B' and 'C' respectively.

2. Your business premises as well as residential premises were gain searched on 11-4-74 by the officers of the Customs Department and as a result thereof textiles of foreign origin legally imported into India valued at Rs. 630/- and Rs. 1050/- were recovered from the business and residential premises respectively. In your statement dated 11-4-74 made before the Inspector of Customs and Central Exise, Jaipur immediately after the seizure you stated that though you had been dealing in miscellaneous goods, like cosmetics, Hosiery and general goods, you had purchased the seized foreign made textiles from an unknown person who came from Bombay. A show cause notice dated 30-5-74 in this case had been issued to you by the Assistant Collector (Prev) Customs and Central Excite, Jaipur Copies of Pancbnama dated 11-4-74, statement Hated 11-4-74 and show cause notice dated 30-5-74 are attached and marked as Annexure 'D', 'E' and 'F' respectively.

3. Your business premises were again searched on 6-7-1974 by the officers of the Customs Department and textiles of foreign origin illegally imported into India valued at Rs. 37,460/- were recovered from your business premises. For these goods you had no supporting vouchers to indicate their lawful import or acquisition. This is clear from your statement dated 7-7-74 made before the Superintendent of Customs (Prev) Jaipur Under Section 108 of the Customs Act, 1962. Copies of the Panchnama dated 7.7.74 and statement dated 7.7.74 are annexed as Annexure 'G' and 'H' respectively.

The above grounds are communicated to you in pursuance of Clause 5 Article 22 of the Constitution of India.

If you wish to make any representation against the order of detention, you may do so and address it to the Secretary to the Government of Rajasthan, Home Department, Secretariat, Jaipur and forward it through the Officer-in-Charge of the Central Jail, Jaipur.

Sd/ Ram Singh

23-12-74

(Ram Singh)

Secretary to the Government of Rajasthan

Home Department.

3. The petitioner challenges this order on a number of grounds. They now be broadly divided under-two major bead grounds bearing on the form of the order, its execution and it omitting certain material particulars like place of detention. We will be dealing with these grounds in the later part of our judgment. These ground are contained in Para-6 of the petition. The other major ground of challenge is regarding the validity of the detention self on account of there being no satisfaction of the detaining authority regarding the necessity of detention, the grounds being wholly insufficient or incomplete in several respects and not being related to the object of detention. These grounds are set out extensively in paras 2 to 4 of the petition. We will be dealing with these grounds to hereinafter.

4. At the very out set, however, the learned Public Prosecutor confronted us with the Presidential order suspending the fundamental rights of the citizens within the framework of the proclamation of emergency under Article 359(1) of the Constitution He raised a preliminary objection that the right to move any court with respect to he orders of detention which had already been made under the Anti Smuggling Act and other Acts of similar nature for the enforcement of rights conferred by Articles 14, 21 and 22 of the Constitution being suspended, the petitioner has no right to invoke the jurisdiction of the Court for examining the validity of his order of desertion and all that we can do is to postpone the hearing as long as the Presidential Proclamation regarding suspension of fundamental rights remains in force. We may deal with this question first with a view to examining the area within which a citizen ran invoke the jurisdiction of this Court in the frame work of the Proclamation of emergency and the Presidential Order suspending the fundamental rights, Article 359 reads:

Article 359 Suspension of the enforcement of the rights conferred by Part III during emergencies. - (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

The Presidential order of emergency reads:

PROCLAMATION OF EMERGENCY

In exercise of the powers conferred by Clause (1) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by in ernal disturbance.

New Delhi

The 25th June, 1975.

F.A. Ahmed,

President.

We may then read the Presidential order suspending the fundamental rights:

MNISTRYOF HOME AFFAIRS