Robert Lendi vs K.K. Dwivedi And Ors.
1986 Latest Caselaw 64 Del

JUDGMENT

R.N. Aggarwal, J.

(1) The challenge in this writ petition is to the legality and validity of the order dated 20th May 1985 passed by Shri K.K. Dwivedi, Joint Secretary to the Government of India for detaining Mr. Robert Lendi, a Swiss national, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The order states that the said detenu is being detained with a view to preventing him from smuggling goods.

(2) The relevant facts are that on 7th April 1985 the detenu arrived at the Delhi Airport from Zurich by flight No. Lh 660. After collecting his baggage he walked through the green channel. The detenu was stopped and his baggage was subjected to a thorough search but nothing was recovered except that an empty cavity was noticed in one of his handbags. The person of the detenu was searched and he was found wearing a belt tied around his waist. On an examination of this belt 40 pieces of gold biscuits weighing 250 grams each (total 10 K.Gs) valued at Rs. 12,50,000.00 (market price Rs. 20,50,000.00 ) were recovered. The gold biscuits were shown to an expert who certified the purity and weight of the gold.

(3) On interrogation the detenu disclosed that he was given the gold by one Ernst Muller and the gold was to be delivered at Bombay and be was to get 3000 Francs. The detenu was taken to Bombay with a view to find out the contact-man at Bombay but this mission did not fructify and the detenu was brought back to Delhi and arrested under the Customs Act. A complaint was filed against the detenu under Sections 132 and 135 of the Customs Act and Section 5 of the Imports and Exports (Control) Act on 9th April 1985. The detenu was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody.

(4) On 23rd April 1985 an application was filed by the detenu for bail. The application was opposed by the customs department. The Additional Chief Metropolitan Magistrate rejected the application of the detenu for bail on 17th May 1985.

(5) The impugned order of detention was passed on 20th May 1985.

(6) Mr. R.L. Mehta, learned counsel for the petitioner, has assailed the legality of the detention order on the ground that the petitioner was already in jail and. therefore, there was no need for passing any detention order against him and the impugned order amounts to double detention, and it is bad and illegal.

(7) We had recently the occasion to deal with this contention in depth in Criminal Writ No. 211 of 1985 Vijender Kumar Jain v. Union of India & On., decided on December 10, 1985 and after noticing various judgments on the subject under discussion we held as under : "Adetention order can be passed against a person who is in detention or in jail but the detention order or the grounds of detention served on the detenu must show that the detaining authority is aware of the fact that the person against whom the detention order is being passed is already in jail, and if still the detaining authority finds it necessary to pass the order of detention there has to be material before the detaining authority to reach the satisfaction. In arriving at the satisfaction an important factor would be antecedent history and the past conduct of the detenu. It would, naturally, depend on the facts and circumstances of each case whether a detention order should or should not be made in the case of a person who is already in jail."

(8) We find force in the contention of Mr. Mehta. The petitioner was arrested under Section 104 of the Customs Acton 8th April 1985and was remanded to judicial custody on 9th April 1985. A petition for bail was moved by him on 23rd April 1985 which was rejected by the Additional Chief Metropolitan Magistrate on 17th May 1985. No application for bail was pending at the time the impugned order of detention was passed. From the grounds of detention served on the petitioner, it seems, that the detaining authority was not aware of the fact that the petitioner had moved an application for bail which had been rejected by the court on 17th May 1985

(9) The respondents in their reply have stated that the petitioner was in judicial custody and could be released on bail at any time and thereafter it would have become difficult to trace him. The detaining authority has further stated that he had considered this aspect of the matter before passing the detention order.

(10) We find it difficult to accept the above contention of the detaining authority. [After the application of the detenu for bail was rejected by ' the court and the detenu had made no further application for bail or moved the higher court, we find no compelling reason for the detaining authority to have passed the impugned order. To us, it seems, the detaining authority was not at all aware of the fact that the application for bail had been rejected

(11) [WE also have no material that the petitioner had at any earlier time indulged in smuggling. Rather the grounds of detention show that the detenu had tried to help the customs officers in finding out the contact-man at Bombay but somehow this effort did not materialise. On the facts of this cage we are of the view that the detaining authority was not justified in detaining the detenu under the preventive laws when he was already in jail.

(12) We allow the petition and quash the order of detention.