judgement:
vil Appeal Nos. 778 and 781 of 1976.
From the Judgment and Order dated 30.6. 1975 and 8.8. 1975 of the Kerala High Court in Writ Appeal Nos. 126 and 378 of 1973.
V. Gaurishanker, section Rajappa and Ms. A. Subhashmi for the Appellant.
G. Vishwanatha Iyer.
Mrs. K. Prasanti and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
These appeals on certificate issued by the High Court under Article 133 of the Constitution are direct ed against the order and judgment of the High Court of Kerala.
Briefly, the facts giving rise to these appeals are: the respondent was a member of the erstwhile Nilambut Kovilagam governed by the Madras Marumakkathyyam Act, she was assessed to Income Tax as Hindu Undivided Family as the family pos sessed considerable property including lands.
forests and other properties.
The Income Tax Officer assessed the re spondent for the assessment years 1967 68, 1968 69 and 1969 70 treating the members of the family included within the HUF.
Before the Income Tax Officer, the respondent raised a plea, that there had been division of Tavazhi under a partition agreement dated 3.7.
1958 whereby all lands except forest lands were divided among the members of the family.
The respondent further claimed that the members of the Tavazhi swelled to 14 and these members effected a division in status by a registered document dated 21.2.
She further alleged that the division of Tavazhi into 14 shares was effected by a Civil Court decree in partition suit No. O.S. 22/1961 in the Court of Kozhikode.
It was pointed out on behalf of the respondent that the partition suit was decreed and the properties were 477 allotted to the respective share holders.
The Civil Court had appointed a commissioner to divide the property by metes and bounds in accordance to the shares of individual mem bers.
The respondent further claimed that since the status of HUF was disrupted on account of the decree of partition the HUF could not be assessed to income tax, instead the income derived by individual members could be considered for assessment.
The Income Tax Officer rejected the respondent 's claim and assessed the respondent as the head of the Tavazhi for the assessment years 1967 68, 1968 69 and 1969 70 by his order dated 16.3.
1970/ 27.3.
The Income Tax Officer held that the decree of the Civil Court merely conferred right on the members of the family for separate possession of the land falling to their share after the physical parti tion, and the final partition could be made on application made by _ individual members after depositing Commissioner 's fee.
Since the Civil Court decree was a preliminary decree and no final decree had been passed and no actual partition had been effected and no physical partition by metes and bounds had taken place in pursuance of the decree of partition, the status of HUF continued for purposes of assessment.
The Income Tax Officer observed that earlier the assessee was assessed having the status of HUF, and since no other evi dence except the decree of the Civil Court had been produced by her to show that there has been a real partition, there fore, the assessee 's claim for partition could not be ac cepted.
The respondent filed a writ petition in the High Court under Article 226 of the Constitution for quashing the orders of the Income Tax Officer on the ground that he failed to recognise the disruption of HUF in making the assessment.
A learned single of the High Court allowed the writ petition and quashed the assessment orders.
On appeal at the instance of the Revenue, a Division Bench of the High Court affirmed the order of the single Judge.
On an applica tion made on behalf of the Revenue the High Court granted certificate under Article 133 of the Constitution.
Hence these appeals.
The learned single Judge held that Section 171 of the Income Tax Act does not apply to a case where the division was effected before commencement of the accounting period, and the HUF having received no income during the accounting period it could not be assessed tax notwithstanding the fiction introduced by Section 171.
In appeal the Division Bench held that there was no express provision in Section 171 nor was there any necessary implication arising from the provisions of the Section that the income of the family after its division must 478 be treated or deemed to be the income of the HUF inspite of disruption of joint status '.
The Bench held that a HUF is a separate and distinct entity from the members constituting it and if that entity does not receive any income, the members ' income could not be assessed as income of the HUF.
The Division Bench further held that since there had been partition in the family and Tavazhi had ceased to be HUF long before the accounting periods, the provisions of the Act could not be pressed into service for the purpose of taxing the income of the individual members of the family treating them having the status of HUF with the aid of Section 17 1 of the Act.
The main question which fails for consideration is as to whether the partition as effected by the agreement dated 21.2.
1963 and also the decree of the Civil Court amount to "partition" under the explanation to Section 171 of the Act and further whether the Income Tax Officer acted contrary to law in holding that inspite of the partition as alleged by the respondent, the status of HUF was not disrupted and that status continued for the purposes of assessment during the relevant assessment years.
Under Section 171 a Hindu Family assessed as HUF, is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section.
The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF, the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family, and to record findings on the question of partition.
If on inquiry he comes to the finding that there has been partition, individual liability of members is to be computed according to the portion of the joint family property allotted to them.
What would amount to partition for the purposes of the Section is contained in the Explanation to the Section which defines partition as under: "Explanation In this Section (a) 'partition ' means (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or (ii) where the property does not admit of a physical divi sion, then such division as the property admits of, but a 479 mere severance of status shall not be deemed to be a parti tion.
" The above definition of the partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition.
In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation, even if the partition is effected through a decree of the court.
Ordinarily decree of a Civil Court in a partition suit is good evidence in proof of partition but under Sec tion 171 a legal fiction has been introduced according to which a preliminary decree of partition is not enough.
instead there should be actual physical division of the property pursuant to final decree.
by metes and bounds.
The Legislature has assigned special meaning to partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue.
Any assessee claiming partition of HUF must prove the disruption of the status of HUF in ac cordance with the provisions of Section 171 having special regard to the Explanation.
The assessee must prove that a partition effected by agreement or through court 's decree, was followed by actual physical division of the property.
In the absence of such proof partition is not sufficient to disrupt the status of Hindu Undivided Family for the purpose of assessment of tax.
Under the Hindu Law members of a joint family may agree to partition of the joint family property by private settlement, agreement, arbitration or through court 's decree.
Members of the family may also agree to share the income from the property according to their re spective share.
In all such eventualities joint status of family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of Income Tax.
Section 171 of the Act and the Explanation to it, prescribes a special meaning to partition which is different from the general principles of Hindu Law.
It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property, in the absence of any such proof, the HUF shall be deemed to continue for the purpose of assessment of tax.
Any agreement between the members of the joint family effecting partition, or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the Court.
480 On behalf of the respondent it was urged that the High Court has placed reliance on a Full Bench decision of Kerala High Court in Parameswaran Nambudiripad vs Inspecting As sistant Commissioner of Agricultural Income tax, 72 I.T.R. 664 where it was held that if the HUF was in fact not in existence during any part of an accounting period.
and the HUF as such had not received any income, the family could not be assessed to tax as HUF.
The view taken by the Full Bench has been approved by this Court in Inspecting Assist ant Commissioner of Agricultural Income Tax and Sales Tax (Special), Kozhikode vs Poomuli Manekkal Parameswaran Nam boodiripad, 33 I .T.R. 108.
On a careful scrutiny of the judgment of this Court we find that in that case interpreta tion of Section 29 of the Kerala Agricultural Income Tax Act 1950 as amended in 1964 was involved.
Section 29 after its amendment in 1964 made provision for assessment of Agricul tural tax after partition of a Hindu Undivided Family.
Under that Section there was no provision in the nature of Expla nation to Section 171 of the Income Tax Act.
This Court had no occasion to interpret Section 171 instead the Court interpreted Section 29 of that Act which is quite different from Section 17 1, therefore the appellant cannot draw any support from that decision.
In Kaloomal Tapeshwar Prasad vs
C.I.T., Kanpur, this Court interpreted Section 171 of the Act in detail.
On an elaborate discussion the Court held that under the Hindu Law it is not necessary that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition.
Disruption of status can be brought about by any of the modes permissible under the Hindu Law and it is open to the parties to enjoy their share of property in any manner known to law according to their desire but the Income Tax Law does not accept any such partition for the purposes of assessment of tax instead it has introduced certain conditions of its own to give effect to the partition under Section 17 1 of the Act.
The Court held that in order to claim disruption of HUF on the basis of partition it is necessary to show that the partition had been effected physically by metes ,red bounds.
and in the absence of any such proof, the property would continue to be treated as belonging to the HUF and its income would continue to be included in its total income treating the assesse as HUF.
The High Court referred to Section 25A of the Income Tax Act, 1922 and placed reliance on a number of decisions in holding that in view of the decree of Civil Court for parti tion.
the HUF status had been disrupted and since there was no evidence on record to show that the HUF had received any income in the accounting year, the income received by indi vidual members of the joint family could not be 481 treated to be the income of HUF.
The High Court placed reliance on the Privy Council decision in Sunder Singh Majithia vs Commissioner of Income Tax, and a number of other decisions also in holding that the legal fiction introduced under Section 171 of the Act could not be extended to create tax liability on the HUF even after disruption of its status, pursuant to the Civil Court 's decree for partition.
We do not consider it neces sary to discuss those decisions, as the purpose and object of Section 171 and the extent of the legal fiction intro duced by it has already been considered by this Court in Kaloomal 's case.
The view taken by the High Court under the impugned judgment is not sustainable in law as it is con trary to that decision.
In Shankar Narayanan vs Income Tax Officer, 153 I .T.R. 562 a learned Judge of the Kerala High Court while considering the interpretation of Section 171 held that the view taken by the High Court in the Judgment trader appeal Income Tax Officer, Assessment V Calicut vs Smt.
N.K. Sarada Thampatty, ceased to be good law in view of the decision of this Court in Kaloomal 's case.
In the instant case since there was no dispute that prior to the assessment year 1967 68 the assessment was made against the HUF of which the respondent was a member.
The respondent for the first time raised the plea of partition and disruption of HUF in the proceedings for the assessment years 1967 68, 1968 69 and 1969 70.
There was no dispute before the income Tax Officer that there had been no physi cal division of the properties by metes and bounds, there fore the Income Tax Officer was justified in holding that the status of HUF had not been disrupted, and the income derived from the properties for the purposes of assessment continued to be impressed with the HUF character.
The High Court in our opinion committed error in quashing the order of the Income Tax Officer.
In the result, we allow the appeals and set aside the order of the High Court and dis miss the writ petition filed by the respondent.
There will be no order as to costs.
V.P. Appeals allowed.

summary:
Respondent was assessed for the assessment years of 1967 68, 1968 69 and 1969 70 treating her as the head of the HUF.
She contended before the income Tax Officer that under the partition agreement dated 3.7.1958 the Tavazhi was divided, the HUF status of the Tavazhi was disrupted on account of the CIvil Court decree made in a partition suit and the properties were divided into 14 shares and the HUF could not be assessed to income tax.
The Income Tax Officer rejected the claim of the respondent on the ground that since the preliminary decree of the Civil Court, and not become final and no physical or actual partition had taken place; the status of HUF continued for the purpose of Tax.
The Single Judge of the High Court allowed the Writ Petition of the respondent holding that Section 171 of the Income Tax Act does not apply to a case where the division was effected before the commence 474 ment of the accounting period and HUF having received no income during the accounting period it could not be assessed to tax notwithstanding the legal fiction under Section 171.
In appeal the Division Bench held that there was no express provision in Section 171 nor was there any necessary impli cation arising from the provisions of the section that the income of the family after its division must be treated or deemed to be the income of the HUF inspite of disruption of joint status.
The Bench held that HUF is a separate and distinct entity from the members constituting it and if that entity does not receive any income, the members ' income could not he assessed as income of the HUF.
The Division Bench further held that since there had been partition in the family and Tavazhi had ceased to he HUF long before the accounting periods, the provisions of the Act could not he pressed into service for the purpose of taxing the income of the individual members of the family treating them having the status of HUF with the aid of Section 171 of the Act.
The High Court granted certificate to the Revenue under Article 133 of the Constitution.
Hence these appeals.
Allowing the appeal, the Court, HELD: 1.
Under Section 171 a Hindu Family assessed as HUF, is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section.
The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF, the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family, and to record findings on the question of parti tion.
If on inquiry he comes to the finding that there has been partition, individual liability of members is to be computed according to the portion of the joint family property allotted to them.
The definition of partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition.
In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation, even if the partition is effected through a decree of the court.
Ordinarily decree of a Civil Court in a partition suit is good evidence in proof of partition but under Sec tion 171 a legal fiction has 475 been introduced according to which a preliminary decree of partition is not enough, instead there should be actual physical division of the property pursuant to final decree, by metes and bounds.
The Legislature has assigned a special meaning to partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue.
Any assessee claiming partition of HUF must prove the disruption of the status of HUF in accordance with the provisions of Section 171 having special regard to the Explanation.
The assessee must prove that a partition ef fected by agreement or through court 's decree, was followed by actual physical division of the property.
In the absence of such proof partition is not sufficient to disrupt the status of Hindu Undivided Family for the purpose of assess ment of tax.
Under the Hindu Law members of a joint family may agree to partition of the joint family property by private settlement, agreement, arbitration or through court 's de cree.
Members of the family may also agree to share the income from the property according to their respective share.
In all such eventualities joint status of family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of Income Tax.
Section 171 of the Act and the Explanation to it, prescribes a special meaning to partition which is different from the general principles of Hindu Law.
It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property, in the absence of any such proof, the HUF shall be deemed to continue for the purpose of assessment of tax.
Any agreement between the members of the joint family effecting partition, or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accord ance with the agreement or decree of the Court.
The respondent for the first time raised the plea of partition and disruption of HUF in the proceedings for the assessment years 1967 68, 1968 69 and 1969 70.
There had been no physical division of the properties by metes and bounds.
The status of HUF had not been disrupted, and the income derived from the properties for the purposes of assessment continued to be impressed with the HUF character.
Parameswaran Nambudiripad vs Inspecting Assistant Com missioner of Agricultural Income tax, ; In specting Assistant Commissioner of Agricultural Income Tax and Sales Tax (Special), Kozhikode vs Poomulli Manekkal Parameswaran Namboodiripad, , distinguished.
476 Kaloomal Tapeshwar Prasad vs
C.I.T., Kanpur, 133 I.T.R. 690, followed.
Sunder Singh Majithia vs Commissioner of Income Tax, Shankar Narayanan vs Income Tax Offi cer, , referred.


judgement:
Criminal Appeal No. 206 of 1979.
From the Judgment and Order dated 27.9.
1978 of the Punjab and Haryana High Court in Criminal Appeal No. 17 13 of 1975.
494 A.S. Sohal and S.K. Jain for the Appellant.
Mahabir Singh and A.G. Prasad for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Raj Kumari (20), the daughter of Ishar Dass.
was married to the appellant Baldev Raj a year before her tragic death in February, 1975.
It appears that all was not well with the couple.
Raj Kumari left for her parents house in village Raison 75 Kms.
away from her matrimonial home in village Urlana Khurd.
She stayed with her parents for some days complaining ill teatment by the husband.
On the assurance of the father in law, she was sent back with her husband hardly a couple of months before the incident on 14.2.
On that fateful day, it is said that Raj Kumari took meals to the appellant who was working in the wheat field near his tubewell. ' Raj Kumari did not return home.
Her dead body was discovered in the drain on 16.2.
Multiple injuries were seen on her person.
Complaint was lodged at the police station on February 16, 1975 at about 5.30 P.M. against the appellant who was finally chargesheet ed for the offence under section 302 and 201, I.P.C. The learned Sessions Judge convicted the appellant under section 302, I.P.C., and sentenced him to undergo imprisonment for life.
The High Court dismissed the appeal against the con viction and sentence.
This appeal by special leave is di rected against the judgment of the High Court.
The conviction of the appellant is based on circumstan tial evidence only.
The main item of the evidence consists of the extrajudicial confession stated to have been made by the appellant in the presence of Ishar Dass (PW 3).
Ramji Dass (PW 4) and Satnam Dass (PW 5) at the panchayat on 16.2.
besides the recovery of incriminating articles at the instance of the appellant and the motive as spoken to by Ishar Dass.
According to the prosecution, on 15.2.1975 the appellant 's father Hakam Chand contracted Ishar Dass when Raj Kumari was found missing from 14.2.
Ishar Dass arrived at village Urlana Khurd accompanied by Satnam Dass, Sarpanch of his village, and others.
At the panchayat held in the presence of Ramji Dass, Nand Lal, Satnam Dass and others, the appellant stated that he killed his wife in the wheat field and threw the dead body in the drain at night after removing her ornaments.
PWs 3, 4 and 5 testified the fact but Nand Lal (DW I) did not support the prosecution version.
It is also the prosecution case that the appellant was handed over to and arrested by the police at the time the complaint was lodged after the 495 discovery of the dead body and that the appellant had pro duced the kassi and the gold ornaments concealed in the hut near the tubewell.
PW 10.
the Sub Inspector of Police, deposed to having interrogated the appellant and effected the recovery on the basis of the statements made by the appellant.
Ishar Dass (PW 3) narrated the events that pre ceded the occurrence and also proved the letter he had received from the appellant 's father when Raj Kumari was staying with him.
He also stated the circumstances under which he happened to be at the panchayat on 16.2.
1975 along with the others after being informed by Hakam Chand.
PWs 4 and 5 fully corroborated the evidence of PW 3 in that the appellant had confessed his guilt in their presence.
The evidence was accepted by the trial court and the High Court to sustain the conviction against the appellant.
The argument on behalf of the appellant that the medical evidence is conflicting with the prosecution case was re jected by the High Court finding that the ante mortem in juries found on the body of Kumari could have been caused with the weapon recovered even on the statement made by the Doctor (PW 1).
The recovery of the bloodstained earth from the wheat field near the tubewell, recovery blood stained kassi and the ornaments worn by Raj Kumari by PW 10 in the opinion of the High Court lent assurance to the statement mad,: by the appellant before the panchayat.
The High Court was of the view that the various circumstances conclusively proved the guilt of the appellant beyond reasonable doubt.
The main contention advanced on behalf of the appellant before us is that the High Court failed to appreciate the inherent infirmities in the prosecution evidence and that there is no legal evidence to support the findings.
It was maintained that the testimony of PWs 3, 4 and 5 relating to the extra judicial confession is discrepant and incredible, that the confession even if true, was not voluntary but induced and the same having been retraced cannot form the basis for a conviction in the absence of any material cor roboration.
The learned counsel for the appellant contended that the High Court had refused to give benefit of doubt to the accused despite facts apparent on the face of the record any interference is called for.
The extra judicial confession, according to the learned counsel, being a very weak piece of evidence, could not have been accepted as true or voluntary in view of the admission made by the prosecution witnesses and improvement in the story given by Ishar Dass.
He pointed out that at the panchayat the appellant was induced to make a statement on the 496 promise that he would be pardoned and therefore the confes sion is unacceptable.
Normally this Court does not interfere with the concur rent findings of the facts of the courts below in the ab sence of very special circumstances or gross errors of law committed by the High Court and violation of the well estab lished principles of the appreciation of circumstantial evidence, which results in serious and substantial miscar riage of justice to the accused.
We heard the learned coun sel at length.
We find that the High Court was right in its conclusion and there is no good ground for interference.
The first information was lodged by Ishar Dass at the police station where the appellant was also present.
In the first information report itself Ishar Dass has narrated the story of the panchayat having been held in the presence of PWs 4 and 5 and the appellant having made the confession.
PW 5 accompanied Ishar Dass from village Raison.
It is difficult to hold that these persons hailing from another village would have been in a position to influence the local people against the appellant and foist a case against him.
PW 4, Lambardar (Ramji Dass) substantially supported the prosecution case.
The courts below have carefully analysed the evidence and accepted the same.
As rightly pointed out by the High Court, we find no merit in the submission that the medical evidence is not in consonance with the prosecu tion case.
The facts that the autopsy was held nearly 72 hours after the injuries were caused and the witnesses were examined long after the weapon was recovered are relevant in appreciating the evidence of the medical witness.
The evi dence of this witness read as a whole is only consistent with the case that the injuries could have been caused with the weapon.
The fact that the appellant made the confession is proved by cogent evidence.
The circumstances that his father was present throughout and the appellant himself did not protest when he was present at the police station nega tives the suggestion of inducement or threat.
The discovery of the dead body from the drain through the wheat field, presence of blood in the field, recovery of gold ornaments from, the roof of the hut and blood stained kassi from its premises near the tubewell are material circumstances pro viding connecting links in the chain of circumstantial evidence.
The appellant when examined did not offer any explanation except to deny his involvement.
Ishar Dass testified to the fact that Raj Kumari had complained about the ill treatment by her husband.
In the light of such evidence, it is preposterous to maintain that the deceased may have been assaulted by some unidentified assailant somewhere in the fields and the appellant 497 had been falsely implicated in the offence.
The confessional statement is not a long narration.
The substance of the statement is that the appellant killed his wife and threw the dead body in the drain.
PW 4 is the Lambardar of village Urlana Khurd and PW 5 the Sarpanch of Gram Panchayat of village Raison.
The fact that a panchayat was held at village Urlana Khurd is admitted even by the hostile witness Nand Lal (DW I).
Ishar Dass when informed by Hakam Chand at his village that Raj Kumari was found missing entertained suspicion.
He met his villagers and proceeded to the appellant 's village the next day, along with the Sar panch and other persons.
The panchayat was held there on 16.2.
The appellant and his father were brought before the panchayat.
The appellant was questioned and was asked to speak the truth and then the appellant with folded hands said that he murdered his wife in the wheat field when she came there with meals and later threw the dead body in the drain.
The prompting by the panchayat does not amount to inducement or threat and the circumstances under which the statement was made leave no room for doubt that the confes sion was voluntary.
An extra judicial confession, if voluntary, can be relied upon by the court along with other evidence in con victing the accused.
The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made.
It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given.
It is for the court having regard to the credibility of the witness to accept the evidence or not.
When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be rounded on such evidence.
Keeping these principles in mind, we find that the confession has been properly accepted and acted upon by the courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime.
The confession of the appellant was voluntary.
The testimony of PW 4 and PW 5 being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appellant.
The very presence of the appellant and his father with the party of Ishar Dass throughout the operation upto lodging of com plaint at the police station dispel any suspicion against the prosecution case and clearly point to the truthfulness of the same.
We are, therefore, unable to find any infirmity in the confession which has been accepted and relied upon by the courts below.
498 The circumstances proved are conclusive of the guilt of the appellant and incapable of being explained on any other reasonable, hypothesis.
Conviction has therefore to be maintained.
The appeal is accordingly dismissed.
The appel lant who is on bail shall surrender to custody to undergo the sentence of imprisonment.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was convicted under section 302 IPC for murder ing his wife.
The prosecution case was that on the fateful day the deceased had taken meals to the appellant while he was working in the field near his tubewell.
Her dead body was recovered two days later in a nearby drain.
He made an extra judicial confession the same day at the panchayat in the presence of PWs 3, 4 and 5 to the effect that he had killed his wife in the wheat field and threw the dead body in the drain at night after removing her ornaments.
The FIR was lodged thereafter in the presence of the appellant and the fact of his statement was recorded therein.
The weapon of offence, the kassi, and the ornaments were recovered from the hut near the tubewell at his instance.
PW 3 narrated the events that preceded the occurrence.
PWs 4 and 5 fully corroborated the evidence of PW 3 in that the appellant had confessed his guilt in their presence.
The evidence was accepted by the trial court.
The High Court sustained the conviction on the view that various circumstances conclusively proved the guilt of the appellant beyond reasonable doubt.
In the appeal it was contended for the appellant that the extrajudicial confession even if true, was not voluntary but induced on the promise that he would he pardoned and the same having been retracted could not form the basis for a conviction in the absence of any material corroboration.
Dismissing the appeal, HELD: 1.
The High Court was right in its conclusion and there was no ground for interference.
2.1 An extra judicial confession, if voluntary can be relied upon by the court alongwith other evidence in con victing the accused.
The 493 value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made.
Though the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invaria ble rule that the court should not accept the evidence, if not the actual words but the substance were given.
It is for the court having regard to the credibility of the witness to accept the evidence or not.
When the court believes the witness before whom the confession is made and it is satis fied that the confession was voluntary, conviction can be rounded on such evidence.
2.2 In the instant case, the fact that the appellant made the confession is proved by cogent evidence.
He and his father were brought before the panchayat held in the presence of PWs 3, 4 and 5.
He was questioned and was asked to speak the truth.
This prompting by the panchayat does not amount to inducement or threat.
The testimony of PW 4, a lambardar, and PW 5, the Sarpanch being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appel lant.
The circumstances under which the statement was made leaves no room for doubt that the confession was voluntary.
2.3 The discovery of the dead body from the drain through the wheat field, presence of blood in the field, recovery of gold ornaments from the roof of the hut and blood stained kassi from the hut near the tubewell were material circumstances providing connecting links in the chain of circumstantial evidence.
The appellant when exam ined did not offer any explanation except to deny his in volvement.
PW 3 had testified to the fact that the deceased had complained about the illtreatment by her husband.
In the light of such evidence, it is preposterous to maintain that she may have been assaulted by some unidentified assailant somewhere in the fields and the appellant had been falsely implicated in the offence.
The circumstances thus proved were conclusive of the guilt of the appellant and incapable of being explained on any other reasonable hypothesis.
Conviction has, therefore, to be maintained.


judgement:
: Writ Petition (Crimi nal) Nos.
757,759 & 760 of 1990 (Under Article 32 of the Constitution of India.) N. Devarajan and V. Krishnamurthy for the Petitioners.
Kapil Sibal Additional Solicitor General and A Subba Rao for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Three persons, namely, (1) M.M. Shahul Hameed @ Gani Asiam, (2) Haja Mohideen @ Shahul Hameed Asarudeen and (3) Naina Mohammed @ Raja Mohd. Zafar were intercepted by the officers of Department of Revenue Intelligence on 5th October, 1989 at the Sahar International Airport, Bombay, as they were suspected to be involved in smuggling activities.
They were escorted to the office of Directorate of Revenue Intelligence, Waldorf, Colaba, Bombay, where they were interrogated.
On interrogation it was found that M.M. Shahul Hameed was to board flight No. CX 750 to Hongkong while the other two were to proceed to Dubai by Emirate Flight No. E 5 10 on that day.
The said three persons were searched.
Two balloon covered rolls secreted in the rectum of M.M. Shahul Hameed were removed and were found to contain diamonds and precious stones weighing about 905.70 carats and 77.37 carats, respectively.
The said diamonds and precious stones valued at about Rs.70 lacs were attached under a Panchnama.
In addition to the same foreign currency of the value of Rs. 10,706 was also recovered and attached.
His passport was also seized.
The other two persons were found to have swallowed 100 capsules each containing foreign currency of the total value of Rs.6,99,930.
The capsules were extracted from their persons and the currency was recovered and attached under a Panchnama.
In addition thereto foreign currency of the value of Rs. 1,466.50 was also found on their person during their search and the same too was attached and seized.
Their passports were also seized.
460 All the aforesaid three persons belonged to Village Namboothalai of District Ramnath, Tamilnadu.
Their state ments were recorded on the same day i.e. 5th October, 1989.
M.M. Shahul Hameed disclosed that his cousin Kasim, owner of a film company at Madras, had offered him a sum of Rs.4,000 for smuggling diamonds, etc., to Hongkong.
On his agreeing, he was trained and was sent to Bombay with one Mohammad who was to introduce him to Mohideen and Rahim who were supposed to entrust him with the diamonds, etc., to be carried to Hongkong.
Accordingly he came to Bombay with the said Moham mad and was duly introduced to the aforesaid two persons at a fiat in Chembur where he stayed.
The said Mohideen and Rahim arranged for his passport and ticket and gave him two roll wrapped in balloons containing diamonds, etc., on the night of 4th October, 1989 for being carried to Hongkong.
As per the training he had received, he concealed these bal loons in his rectum before leaving for the Airport to catch the flight to Hongkong.
In addition to the same he was given a paper on which something was scribbled in Arabic.
In the course of his interrogation he admitted the recovery and seizure of diamonds and precious stones and also gave the description of Kasim and Rahim.
On 12th October, 1989 he wrote a letter retracting his statement made on 5th October, 1989.
However, in his further statement recorded on 19th October, 1989 he admitted that his signature was obtained on the letter of 12th October, 1989 without disclosing the contents thereof to him and that his earlier statement of 5th October, 1989 was both voluntary and correct.
Inciden tally the statement of retraction was rejected by the Deputy Director of Revenue Intelligence on 20th October, 1989.
The other two persons whose statements were also record ed on 5th October, 1989 disclosed that they were both work ing at a Tea shop in Madras and knew Mohideen and Rahim who too were working with them.
Rahim had suggested that they would be paid Rs.2,000 each if they were willing to smuggle foreign currency to Dubai by swallowing capsules containing the same.
On their agreeing they too were trained and were then taken to Bombay where they were lodged in Vimi Lodge at Bhindi Bazar.
On 4th October, 1989 they were given an tick ets for travel to Dubai and 100 capsules each containing foreign currency.
They swallowed the capsules and left by taxi for the Airport in the early hours of 5th October, 1989.
They too were given a paper containing some scribbling in Arabic by Mohideen and Rahim.
While they were waiting to catch their flight, they were intercepted as stated earlier.
Both of them also signed letters dated 12th October, 1989 retracting their statements made under Section 108 of the Customs on 5th October, 1989.
However, in their subsequent statement of 19th October, 1989 they admitted that they were not aware of the contents of the letter of 12th October, 1989.
They further admitted that what they had disclosed on 5th October, 1989 was both voluntary and correct.
Their statements of retraction were also rejected by the Deputy Director of Revenue Intelligence on 20th October, 1989.
All the three aforesaid persons were produced before the learned Additional Chief Metropolitan Magistrate, Esplanade.
Bombay on 6th October, 1989.
They were taken on remand by the police for investigation.
Barring M.M. Shahul Hameed, the other two had preferred applications for bail which were kept for hearing initially on 27th October 1989 but the date was later extended upto 16th November, 1989.
Their co accused, Kasim was arrested on 6th October.
1989 and was produced before the Additional Chief Metropolitan Magistrate, Egmore, Madras.
He too was taken on remand.
On 19th October, 1989 he too had preferred a bail application which was kept pending as the investigation was in progress.
Since the period of remand was extended from rime to time in the case of all the aforesaid four persons finally upto 16th November, 1989, the bail applications were also fixed for hearing on that date.
In the meantime on 10th November, 1989 the Joint Secretary to the Government of India in the Ministry of Finance, Department of Revenue, passed an order under sub section (1) of Section 3 of the (hereinafter called 'the Act ') directing the detention of all the three persons 'with a view to preventing him from smuggling goods '.
They were directed to be detained in the Central Prison.
Bombay.
This order of detention, though passed on 10th November.
1989 was in fact served on the three detenus on 21st November, 1989.
i.e., after a lapse of about 11 days.
The grounds of detention dated 10th November, 1989 were also served on the three the same day.
Thereafter the Additional Secretary to the Government of India in the Ministry of Finance, Department of Revenue made a declara tion concerning the three detenus dated 20th December 1989, under sub section (1) of section 9 of the Act after record ing a satisfaction that they were likely to smuggle goods out of and through Bombay Airport.
an area highly vulnerable to smuggling within the meaning of Explanation 1 to that section.
This declaration was served on the detenus within the time allowed by law.
Thereupon.
the wives of all the three detenus filed separate habeas corpus writ petitions under Article 226 of the Constitution in the High Court of 462 Bombay on 19th January.
These writ petitions were numbered 66, 67 and 68 of 1990.
Four contentions were raised before the High Court, namely, (1) since the detenus were in custody their detention was unwarranted; (2) the detaining authority had betrayed nonapplication of mind by describing the offence with which the detenus were charged as 'bail able '; (3) the representation of the detenus dated 18th December, 1989 had not been disposed of promptly and there was inordinate delay; and (4) the authorities had failed to supply certain crucial documents called for by the detenus thereby depriving them of the opportunity of making an effective representation.
All the three petitions came up for hearing before a Division Bench of the High Court on 21st March, 1990.
The High Court rejected all the four contentions and dismissed the writ petitions.
The said dismissal has led to the filing of Special Leave Petitions (Criminal) Nos.
73 1,732 & 733 of 1990.
Besides filing the said special leave petitions under Article 136 of the Con stitution, the wives of the detenus have also filed separate Writ Petitions (Criminal) Nos. 757,759 and 760 of 1990 under Article 32 of the Constitution.
We have heard the three special leave petitions as well as the three writ petitions together and we proceed to dispose them of by this common judgment.
The learned counsel for the petitioners raised several contentions including the contentions negatived by the High Court of Bombay.
It was firstly contended that the detenus had made representations on 18th December, 1989 which were rejected by the communication dated 30th January, 1990 after an inordinate delay.
The representations dated 18th Decem ber, 1989 were delivered to the Jail Authorities on 20th December, 1989.
The Jail Authorities despatched them by registered post.
23rd, 24th and 25th of December, 1989 were non working days.
The representations were received by the COFEPOSA Unit on 28th December, 1989.
On the very next day i.e 29th December, 1989 they were forwarded to the sponsor ing authority for comments.
30th and 31st December, 1989 were non working days.
Similarly 6th and 7th January, 1990 were non working days.
The comments of the sponsoring au thority were forwarded to the COFEPOSA Unit on 9th January, 1990.
Thus it is obvious that the sponsoring authority could not have received the representations before 1st January, 1990.
Between 1st January, 1990 and 8th January, 1990 there were two non working days, namely, 6th and 7th January, 1990 and, therefore, the sponsoring authority can be said to have offered the comments within the four or five days available to it.
It cannot, therefore, be said that the sponsoring authority was guilty of inordinate delay.
The contention that the views of the sponsoring authority were 463 totally unnecessary and the time taken by that authority could have been saved does not appeal to us because consult ing the authority which initiated the proposal can never be said to be an unwarranted exercise.
After the COFEPOSA Unit received the comments of the sponsoring authority it dealt with the representations and rejected them on 16th January, 1990.
The comments were despatched on 9th January, 1990 and were received by the COFEPOSA Unit on 11th January, 1990.
The file was promptly submitted to the Finance Minister on the 12th; 13th and 14th being non working days, he took the decision to reject the representations on 16th January, 1990.
The file was received back in the COFEPOSA Unit on 17th January, 1990 and the Memo of rejection was despatched by the post on 18th January, 1990.
It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed.
It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the representations of the detenus.
Our attention was drawn to the case law in this behalf but we do not consider it necessary to refer to the same as the question of delay has to be answered in the facts and circumstances of each case.
Whether or not the delay, if any, is properly explained would depend on the facts of each case and in the present case we are satisfied that there was no delay at all as is apparent from the facts narrated above.
We, therefore, do not find any merit in this submission.
It was next submitted by the learned counsel for the petitioners that there was no compelling reason for the detaining authority to pass the impugned orders of detention as the detenus were already in custody on the date of the passing of the detention orders as well as the service thereof.
Besides, he submitted.
it is apparent from the averments in paragraph 15 of the grounds of detention that the concerned authority was labouring under a misconception that the detenus were charged with a 'bailable ' offence which betrays total non application of mind.
He further submitted that the delay in the service of the detention orders discloses that there was no urgency about ordering detention.
Taking the last limb of the argument first, we may refer to the counter filed in the writ petitions in this behalf.
Therein it is stated that after the detention orders were signed on 10th November, 1989, it was realised that certain documents which were not in Tamil language would have to be translated.
The services of a professional trans lator were requisitioned.
Between 10th and 21st November, 1989 there were five holidays on 11th, 12th, 13th, 18th & 19th.
As soon as the translations were ready and received by the Department, the police autho 464 rities were directed on 20th November, 1989 to execute the detention orders.
This was done on 21st November, 1989, Thus the time taken between 10th and 21st November.
exclud ing 5 holidays, was only of six days during which all the documents were got translated in Tamil language and were served on the detenus along with grounds of detention.
These facts clearly show that the time taken in the service of the detention orders cannot be attributed to lack of sense of urgency on the part of the authorities but it was to get the documents translated in Tamil language before they were supplied to the detenus.
Under the circumstances we do not see any delay which would vitiate the detention orders.
It is indeed true that in paragraph 15 of the grounds of detention the detaining authority has averted that the detenus are charged with a bailable offence.
After setting out the fact that two of the detenus had made an application for bail in the Bombay Court and their co accused Kasim had made a similar application in the Madras Court, the authori ty proceeds to state as under: "Though you are in judicial custody but can be released on bail any time as the offence with which you have been charged is bailable in which case you may indulge in similar prejudicial activities.
It is necessary to bear in mind the context in which the expression bailable ' is used.
In the counter filed by the Joint Secretary who passed the detention orders and prepared the grounds for detention it is stated that his past experi ence in such eases was that normally and almost as a matter of rule courts grant bail after the investigation is com pleted.
It was in this background, says the officer, that he used the expression 'bailable '.
We may reproduce his exact words from the counter: "It is also submitted that the word bailable which has not been used in the legal sense, it was intended to convey that normally in such cases one gets bail and in that context, the word 'bailable ' was used".
Proceeding further it is averred in the counter that even in nonbailable offences the Sessions Court and the High Court are empowered to grant bail.
He was, therefore, of the view that in such cases courts normally grant bail.
It was in this background that he used the word bailable in the grounds of detention.
465 Mr. Sibbal the learned Additional Solicitor General, contended that the expression bailable was used in the backdrop of the fact that two of the detenus and Kasim had already applied for bail.
The court had not rejected their applications but had adjourned them as the investigation was in progress.
That gave rise to the belief that bail would be granted.
His normal experience also was that in such cases courts ordinarily granted bail on the conclusion of the investigation.
He, therefore, loosely described the offence as bailable and did not use that word in the technical sense of section 2(a) of the Code of Criminal Procedure.
The High Court also pointed out that even in respect of non bailable offences it is generally open to the Sessions Court and the High Court to release the accused on bail.
It further points out that it is equally open to the Magistrate to release the accused on bail after a period of two months.
In the circum stances the High Court was of the opinion that the use of the expression 'bailable ' cannot lead one to the conclusion that there was no application of mind.
We are inclined to think that having regard to the background in which this expression is used in paragraph 15 of the grounds of deten tion and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses non applica tion of mind.
It was then submitted that the detenu M.M. Shahul Hameed had not applied for bail and, therefore, there was no question of his being released on bail.
We do not think that there is any merit in this submission for the simple reason that if the co accused are released on bail he too could seek enlargement on bail at any time.
Therefore, the possibility of all the detenus being released on bail was a real one and not an imaginary one.
This was based on past experience which is re inforced by the observations of the High Court that even in non bailable cases courts of Sessions and High Court do grant bail.
The second limb of the contention is, therefore, clearly devoid of merit.
Counsel for the detenus, however, vehemently argued that since the detenus were in custody, there was no compelling necessity to pass the detention orders for the obvious reason that while in custody they were not likely to indulge in any prejudicial activity such as smuggling.
In support of this contention reliance was placed on a host of decisions 01 ' this Court beginning with the case of Vijay Narain Singh vs State of Bihar, and ending with the case of Dharmendra Suganchand Chelawat vs Union of India, ; It is necessary to bear in mind the fact that the grounds of detention clearly reveal that the detaining authority was aware of the fact that the detenus were appre hended while they were about to board the flights 466 to Hongkong and Dubai on 5th October, 1989.
He was also aware that the detenu M.M. Shahul Hameed had secreted dia monds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes.
He was also aware of the fact that all the three detenus were produced before the Additional Chief Metropolitan Magistrate, Espalande, Bombay and two of them had applied for bail.
He was also conscious of the fact that the hearing of the bail applications was postponed because investigation was in progress.
His past experience was also to the effect that in such cases courts ordinarily enlarge the accused on bail.
He was also aware of the fact that the detenu M.M. Shahul Hameed had not applied for bail.
Con scious of the fact that all the three detenus were in custo dy, he passed the impugned orders of detention on 10th November, 1989 as he had reason to believe that the detenus would in all probability secure bail and if they are at large, they would indulge in the same prejudicial activity.
This inference of the concerned officer cannot be described as bald and not based on existing material since the manner in which the three detenus were in the process of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf.
Even the detenus in their statements recorded on 5th October, 1989 admitted that they had embarked on this activity after receiving training.
The fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum speaks for itself.
Similarly the fact that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance.
All the three detenus had prepared them selves for indulging in smuggling by creating cavities in their bodies after receiving training.
These were not ordi nary carriers.
These were persons who had prepared them selves for a long term smuggling programme and, therefore, the officer passing the detention orders was justified in inferring that they would indulge in similar activity in future because they were otherwise incapable of earning such substantial amounts in ordinary life.
Therefore, the criti cism that the officer had jumped to the conclusion that the detenus would indulge in similar prejudicial activity with out there being any material on record is not justified.
It is in this backdrop of facts that we must consider the contention of the learned counsel for the detenus whether or not there existed compelling circumstances to pass the impugned orders of detention.
We are inclined to think, keeping in view the manner in which these detenus received training before they indulged in the smuggling activity, this was not a solitary effort, they had in fact prepared themselves for a long term programme.
The decisions of this Court to which our attention was drawn by the learned 467 counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at*liberty.
We will now consider the case law in brief.
In Vijay Narain Singh (supra) this Court stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice; So also in Ramesh Yadav vs District Magis trate ET, this Court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail.
In such cases the proper course would be to oppose the bail application and if grant ed, challenge the order in the higher forum but not circum vent it by passing an order of detention merely to supersede the bail order.
In Suraj Pal Sahu vs State of Maharashtra, ; the same principle was reiterated.
In Binod Singh vs District Magistrate, Dhanbad, ; it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised.
There must be cogent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail.
This inference must be drawn from material on record and must not be the ipse dixit of the officer passing the detention order.
Eternal vigilance on the part of the authority charged with the duty of maintain ing law and order and public order is the price which the democracy in this country extracts to protect the fundamen tal freedoms of the citizens.
This Court, therefore, empha sized that before passing a detention order in respect of the person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge in prejudicial activity if not detained.
That is why in Abdul Wahab Sheikh vs
S.N. Sinha; , this Court held that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that cogent and relevant material disclosed the necessity for making an order of detention.
In that case the detention order was quashed on the ground of non application of mind as it was found that the detaining authority was unaware that the detenu 's application for being released on bail was rejected by the 468 designated Court, In Meera Rant ' vs State of Tamil Nadu, ; the case law was examined in extension.
This Court pointed out that the mere fact that the detenu was in custody was not sufficient to invalidate a detention order and the decision must depend on the facts of each case.
Since the law of preventive detention was intended to prevent a detenu from acting in any manner considered preju dicial under the law.
ordinarily it need not be resorted to if the detenu is in custody unless the detaining authority has reason to believe that the subsisting custody of the detenu may soon terminate by his being released on bail and having regard to his recent antecedents he is likely to indulge in similar prejudicial activity unless he is pre vented from doing so by an appropriate order of preventive detention.
In Shashi Aggarwal vs State of Uttar Pradesh, ; it was emphasized that the possibility of the court granting bail is not sufficient nor is a bald state ment that the detenu would repeat his criminal activities enough to pass an order of detention unless there is credi ble information and cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicial ly.
The same view was reiterated in Anand Prakash vs State of Uttar Pradesh, ; and Dharmendra 's case (supra).
In Sanjay Kurnar Aggarwal vs Union of India, ; the detenu who was in jail was served with a detention order as it was apprehended that he would indulge in prejudicial activities on being released on bail.
The contention that the bail application could be opposed, if granted, the same could be questioned in a higher forum, etc., was negatived on the ground that it was not the law that no order of detention could validly be passed against a person in custody under any circumstances.
From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court.
What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre empt or circumvent enlargement on bail in cases which 469 are essentially criminal in nature and can be dealt with under the ordinary law.
It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand.
resort can be had to the law of preventive detention.
This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise.
We, therefore.
find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the, deronus were in custody.
Counsel for the petitioners next submitted that while making the representation dated 18th December.
1989 the detenus had requested for the supply of copies of the decla rations made by them before the customs authorities at the Bombay Airport before boarding their respective flights and for copies of the search warrants mentioned in the grounds of detention.
It was stated that the detenus needed these documents for the purpose of making a representation.
While rejecting their representation by the memorandum of 18th January.
1989 the detenus were informed that the sponsoring authority was requested to supply the copies of search authorisations to the detenus.
The petitioners complained that despite this communication the sponsoring authority did not supply copies of the search authorisations whereupon another letter dated 6th February, 1990 was written to the detaining authority asking for the said documents.
By the memorandum of 14th February, 1990, the detenus were informed that the Deputy Director of Revenue Intelligence.
Bombay, was requested to supply the documents asked for by the deronus.
In response to the same the detenus were supplied copies of the search warrants but not copies of the declara tions made to the customs officers at the airport.
It is further complained that this delay had resulted in depriving the detenus of their valuable right to make an effective representation against the impugned detention orders.
The High Court while dealing with this contention came to the conclusion that the declarations made by the detenus at the airport were neither relied on nor referred to in the grounds of detention.
As regards the search authorisations, it may be pointed out that although there is a mention of the premises searched in the grounds of detention, the incriminating material found has neither been used nor made the basis for formulating the grounds of detention.
Mere reference to these searches by way of completing the narra tion cannot entitle the detenus to claim copies of the search authorisations.
The High Court, therefore, rejected this contention by observing as under: 470 "We fail to understand how the Detaining Authority can be compelled to give documents which were not relied upon while arriving at the subjective satisfaction.
We are also unable to appreciate how the declaration made by the detenu before proceedings to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future.
In our judgment, the complaint that some documents which according to the detenu were relevant for making representation were not furnished by the Detain ing Authority and, therefore, the order or the continuation of the detention is bad, is without any substance.
" In the counter it is specifically mentioned that 'these documents were not placed before the detaining authority nor the detaining authority has relied upon those documents while issuing the detention order '.
The detenus would have been entitled to any document which was taken into consider ation while formulating the grounds of detention but mere mention of the fact that certain searches were carried our in the course of investigation, which have no relevance to the detention of the detenus, cannot cast an obligation on the detaining authority to supply copies of those documents.
Much less can an obligation be cast on the detaining author ity to supply copies of those documents in Tamil language.
In the peculiar circumstances of the present petitions we are of the opinion that the view taken by the High Court cannot be assailed.
Reliance was, however, placed on a decision of the Delhi High Court in Gurdip Singh vs Union of India & Ors., Criminal Writ No. 257 of 1988 decided on 7th October, 1988 (1989 Crl.
L.J. NOC 41 Delhi) wherein Malik Sharief ud din, J. observed that the settled legal position was that all the documents relied upon for the purpose of ordering detention ought to be supplied pari passu with the grounds of detention to the detenu and documents not relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded.
Where documents of the latter category are supplied after the meeting of the Advisory Board is over it was held that that would seriously impair the detenu 's right to make an effective and purposeful representation which would vitiate the detention.
Counsel for the petitioners, therefore, submitted that in the present case also since the search authorisations were supplied after the meeting of the Advi sory Board, the detention orders stood vitiated.
But in order to succeed it must be shown that the search authorisa tions had a bearing on the detention orders.
If, merely an incidental refe 471 rence is made to some part ' of the investigation concerning a coaccused in the grounds of detention which has no rele vance to the case set up against the detenu it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation.
It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must fur ther be shown that the non supply has impaired the detenu 's 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 fast 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 insig nificant it may be.
In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the peti tioners point out any such prejudice.
We are, therefore, of the opinion that the view taken by the Bombay High Court in this behalf is unassailable.
The declaration under section 9(1) dated 20th December, 1989 is challenged on the ground that the second respondent failed to forward the copies of the document on which he placed reliance for arriving at the subject to satisfaction that the detenu were likely to smuggle goods out of and through Bombay Airport, an area highly vulnerable to smug gling as defined in Explanation 1 to section 9(1) of the Act.
Now if we turn to paragraph 2 of the declaration it becomes evident that the second respondent merely relied on the grounds of detention and the material in support thereto which had already been served on the detenu and nothing more.
Counsel for the petitioners relying on a decision of the Bombay High Court in Nand Kishore Purohit vs Home Secre tary, Maharashtra, [2986]2 Bombay C.R. 25, however urged that it was obligatory for the second respondent to supply the grounds of detention and the accompanying documents 'afresh ' if the declaration 'was based thereon.
We are afraid we cannot subscribe to this point of view.
If the documents relied on for the purpose of framing a declaration under section 9(2) are the very same which were earlier supplied to the detenu along with the grounds of detention under section 3(1), we fail to see what purpose would be served by insisting that those very documents should be supplied afresh.
Such a view would only result in wasteful.
expenditure and avoidable duplication.
We do not think that 472 we would be justified in quashing the declaration made under section 9(1) of the Act on such a hyper technical ground.
We, therefore, do not see any merit in this contention.
There are a few other minor grounds on which the deten tion orders are challenged.
These may stated to be rejected.
Firstly, it was contended that under section 3(1) of the Act a detention order can be passed on one or more of the five grounds set out in clauses (i) to (v) thereof.
Since the impugned orders make no mention of the clause number on which they are rounded they are bad in law.
The detention orders clearly state that the power is being exercised with a view to preventing the smuggling of goods referrable to clause (i) of the subsection.
Merely because the number of that clause is not mentioned, it can make no difference whatsoever.
So also we see no merit in the contention that the value of goods seized varies in the grounds of detention from that mentioned in the panchnama or appraisal report.
How that has prejudiced the detenus is difficult to compre hend in the absence of any material on record.
The submis sion that the declaration under section 9(1) was required to be communicated within five weeks from the date of its making is not specifically raised in the writ petitions nor was it argued before the High Court.
We were, however, told that the declaration was communicated in the first week of January 1990, a statement which was not contested on behalf of the petitioners.
In fact the submission was not pursued after this fact was disclosed.
We also see no merit in it.
Lastly, it was said that the authority had failed to take notice of the retraction of the statement recorded under section 108 of the .
In fact there is a specific reference to the retraction letter dated 12th October, 1989 and the subsequent letter of 19th October, 1989, wherein the detenus stated that they had signed the letter of 12th October, 1989 without knowing the contents thereof and had in fact not disowned their earlier statement of 5th October, 1989.
It is clear from the above that this challenge is also without substance.
These were the only contentions urged at the hearing of the special leave petitions as well as the writ petitions.
As we do not see any merit in any of these contentions we dismiss the special leave petitions as well as the writ petitions and discharge the rule in each case.
R.N.J. SLPs and Writ Petition dismissed.

summary:
The petitioners are the wives of three detenus who had been detained under an order dated 10th November, 1989 passed under subsection (1) of section 3 of the against each of them with a view to preventing them from smuggling goods '.
The order of detention as well as the grounds of detention dated November 10, 1989 were served on the three detenus on 21st November, 1989 while they were already in jail custody on remand following their arrest at the Sahar International Airport on October 5, 1989 when on suspicion they were searched which resulted in the recovery of diamonds, precious stones and foreign currency which they had planned to smuggle out.
Thereafter on Decem ber 20, 1989 a declaration under section 9(1) of the Act was passed in respect of each detenu which was served on them within the time allowed by law.
Thereupon the wives of all the three detenus filed separate habeas corpus writ peti tions in the High Court of Bombay.
Four contentions were raised before the High Court namely, (1) since the detenus were in custody their detention was unwarranted; (2) the detaining authority had betrayed non application of mind by describing 458 the offence as 'bailable '; (3) the representation of the detenus dated 18th December, 1989 had not been disposed of promptly and there was inordinate delay; and (4) the author ities had failed to supply certain crucial documents called for by the detenus thereby depriving them of the opportunity of making an effective representation.
The High Court nega tived all the contentions and dismissed the writ petitions.
Against that the wives of the detenus have filed Special Leave Petitions and also separate writ petitions under Article 32 of the Constitution raising several contentions including those negatived by the High Court.
Dismissing all the Special Leave Petitions and Writ Petitions and upholding the view taken by the High Court this, Court, HELD: Even in the case of a person in custody a deten tion order can validly be passed (1) if the authority pass ing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing.
[278F G] It is not sufficient to say that the detenu was not supplied the copies of the documents in time on demand but it must further be shown that non supply has impaired the detenu 's right to make an effective and purposeful represen tation.
[281B] Demand of any and every document, however irrelevant it may be, 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 fast rule can be laid down in this behalf but what is essential is that the detenu must show that 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.
[281B C] Vijay Narain Singh vs State of Bihar, [1984] 3 S.C.C. 14; Dharmendra Suganchand Chelawat vs Union of India, ; ; Ramesh Yadav vs District Magistrate E.T., ; Suraj Pal Sahu vs State of Maharashtra, ; ; Binod Singh vs District Magistrate, Dhanbad, ; ; Abdul Wahab Sheikh vs
S.N. Sinha; , ; Meera Rani vs State of Tamil Nadu, ; ; Shashi Aggarwal vs State of Uttar Pradesh, ; ; Anand Prakash vs State of Uttar Pradesh, ; ; Sanjay Kumar Aggarwal vs Union of 459 India; , ; Gurdip Singh vs Union of India & Ors., [1989] Crl.
L.J. NOC 41 Delhi and Nand Kishore Purohit vs Home Secretary, Maharashtra, [1986] 2 Bombay C.R. 25 referred to.