Ratan Ghosh vs Union Of India And Others
1986 Latest Caselaw 40 Del

JUDGMENT

Aggarwal, J.

1. On June 1, 1985 Shri. K. K. Dwivedi, Joint Secretary to the Government of India, specially empowered under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called 'the Act') passed three separate orders under the said Act for the detention of (1) Ratan Ghosh, (2) Lok Nath Ghosh and (3) Dalip Ghosh; all residents of Dacca, Bangladesh, with a view to preventing them from smuggling goods and engaging in transporting, concealing and keeping smuggled goods. The Central Government after obtaining the opinion of the Advisory Board confirmed the detention orders under S. 8(f) of the Act.

2. The said three detenus have by means of three separate writ petitions (Crl. Writ Nos. 238/85, 239/85 and 237/85) under Art. 226 of the Constitution challenged the legality and validity of the said detention orders. Since the grounds of detention are common in all the three cases we are deciding the cases together. This order shall dispose of all the three writ petitions.

3. The relevant facts are that on 16th April, 1985, acting on a secret information the Customs Officers of the Collectorate of Customs (Preventive), West Bengal, kept a watch at Ghojadanga, a bordering Land Customs Station on Indo-Bangladesh border 200 kilometers away from Calcutta. At about 9 a.m. Ratan Ghosh and Lok Nath Ghosh passed the Customs Station at Ghojadanga. They were caught and were taken to Calcutta where 8 gold biscuits weighing 933.050 grams were recovered from Ratan Ghosh and 6 pieces of gold biscuits weighing 699.850 grams were recovered from Lok Nath Ghosh. They were carrying the said gold biscuits inside their rectum. The value of the recovered gold was Rs. 3,50,000/-. The said two detenus could not produce any evidence, documentary or otherwise to show their legal possession and bona fide acquisition of the said gold.

4. On interrogation Ratan Ghosh stated that he was given the said gold on 15th April 1985 by one Shri Mahendra Sarkar of Dacca and he was to deliver the said gold to Shri Mahendra Sarkar at New India Hotel, Burabazar, Calcutta, and that he was to get a reward of Rs. 1000/-. He further stated that he had on earlier two occasions come to India and carried gold biscuits concealed inside his rectum and had delivered the gold on those two occasions to Mahendra Sarkar.

5. Lok Nath Ghosh on interrogation disclosed that he was given the gold biscuits by one Mohd. Selim of Kaptan Bazar, Dacca and that he was to deliver the said gold to Mohd. Selim at Ultadanga Railway Station and get a reward of Rs. 2000/-. He further stated that earlier he had come to India through different check-posts 6 or 7 times and on all these occasions he purchased lungies and clothes from India and sold them in Bangladesh.

6. On 17th April, 1985 Ratan Ghosh further gave information regarding the involvement of Shri Dalip Ghosh in the smuggling activities. Dalip Ghosh was intercepted at Ghojadanga check post on 22nd April, 1985. On interrogation Dalip Ghosh disclosed that he had earlier on 8th April 1985 gone to Calcutta and carried gold biscuits inside his rectum and delivered the same to a lady at flat No. 3, 3rd floor, 54 Manik Tala Main road, and that on 16th April, 1985 also he had delivered 4 foreign gold bars to the said lady and that he was introduced to that lady by Ratan Ghosh. Ratan Ghosh in his additional statement recorded on 30th April stated that he had given 6 gold bars to Dalip Ghosh. He further stated that on 16th April, 1985 Dalip Ghosh had come with him with gold for the first time.

7. The first two detenus were arrested on 17th April, 1985 and were produced before the Chief Metropolitan Magistrate on 18th April, 1985 and he remanded them to jail custody uptill 2nd May 1985 and this was further extended up to 31st May, 1985. The third detenu Dalip Ghosh was arrested on 22nd April, 1985 and was produced before the Chief Metropolitan Magistrate on 23rd April, 1985 and he was remanded to jail custody till 2nd May 1985 which was further extended till 31st May, 1985. It seems, bail application was filed by the detenus on 2nd May, 1985.

8. Shri Harjinder Singh, learned counsel for the petitioners, has assailed the legality and validity of the detention orders, inter alia, on the grounds (1) that the detention orders do not show that the detaining authority was aware that the petitioners were in jail on the date the detention orders were passed, and that the impugned orders amount to "double" detention; (2) that the detention orders show non-application of mind. The contention is that the detaining authority has considered the cases of the petitioners together and this is not legally warranted since there is no commonness in the cases and the material produced against each petitioner should have been considered separately for forming the opinion; (3) that there was delay in the consideration of the representation dt. 4th October 1985 and all the documents demanded were not supplied; (4) that all the relevant material was not placed before the detaining authority. The contention is that the bail application dt. 2nd May 1985 in which the detenus had retracted the statements alleged to have been made by them was not placed before the detaining authority; (5) that the order confirming the detention has been made by the same authority which had passed the order of detention and this is violative of S. 8(f) of the Act. The contention is that the detention order could only be confirmed by the appropriate government which in the present case is the Central Government.

9. We find no force in any of the contentions urged by Mr. Harjinder Singh. We had the opportunity to discuss the question of dual detention at some depth in Criminal Writ No. 211 of 1985 Rajendar Kumar Jain v. Union of India decided by us on December 10, 1985, (reported in 1986 Cri LJ 1183). After referring to the various judgments on the point we held as under :-

"A detention 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."

10. We find that in the petitions in hand the detenus were remanded to jail custody until 31st May, 1985. The petitioner, it seems, had moved applications for bail. The impugned orders were passed on 1st June, 1985. From the narration of the facts in the grounds of detention we are of the view that the detaining authority was conscious of the fact that the detenus are in jail. The first two detenus were caught redhanded while carrying gold biscuits concealed in their rectum. As regards the third detenu, no doubt, no gold was recovered from him but the material brought on the record shows that he had at least on two occasions brought gold into India concealed in his rectum. Ratan Ghosh of his own showing had earlier on two occasions brought gold into India concealed in his rectum. Lok Nath Ghosh stated that he had entered India from different check posts 6 or 7 times. It is true that he does not state that on those 6 or 7 occasions he had brought gold into India but from the fact that he had come to India 6 or 7 times from different check posts it would not be unreasonable to infer that he had been in the past indulging in the smuggling of gold. The fact that all the three detenus are used to carry gold concealed in their rectum, in our view, proves that they are hardened smugglers. In the facts and circumstances of this case, to our mind, it had become necessary to detain them under the Act to check them from indulging in smuggling activities in future.

11. As regards the contention of non-application of mind, we find that all that three detenus were known to each other and were indulging together in the smuggling of gold. The modus operandi in the smuggling of the gold was the same. We do not think that any prejudice has been caused to the detenus by a joint consideration of their cases.

12. We further do not agree with Mr. Harjinder Singh that there was any delay in the consideration of the representation. We find from para 9 of the Writ Petition (Cr. Writ No. 238/85) that it is the case of the detenu that the bail application dt. 2nd May, 1985 was taken into consideration by the detaining authority. His complaint seems to be that he has not been given copy of this document which was essential for making an effective representation. Another complaint of the detenu in para 9 is that the report of the Government Mint Authority at Alipore which was obtained on 8th May 1985 was not supplied to him. We find from the papers placed on the record that the gold was examined by a registered goldsmith Shri Sudarshan Chandra Dey on 16th April 1985 and the copy of his report was given to the detenus. We find no prejudice has occurred by not supplying the copies of the two documents mentioned above.

13. As regards the contention that the detention order was confirmed by the same authority which had passed the detention order, this is not so. Mr. Mehta, learned counsel for the respondents, produced the original order which showed that the detention order was confirmed by the Minister. After seeing the original order Shri Harjinder Singh did not further press his contention.

14. No other contention has been urged.

15. We find the petitions without substance and dismiss the same.

16. Petitions dismissed.