Shiv Kumar Mishra vs Union Of India
1986 Latest Caselaw 59 Del

JUDGMENT

R.N. Aggarwal, J.

(1) -RULE D.B.

(2) On 7th May 1985 Shri K. K. Dwivedi, Joint Secretary to the Government of India, passed an order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called 'the Act') for the detention of Shri Shiv Kumar Mishra, resident of N-390, Nand Nagri, Sunder Nagri, Shahdara, Delhi, with a view to preventing him from smuggling goods and engaging in transporting"- smuggled goods.

(3) The grounds of detention were served on the detenu as required by law.

(4) The relevant facts are these: On 12th April 1985 one Harish Chand Verma and Inder Singh had come at Delhi Airport from Lucknow by flight Ic 436. After they had collected one suitcase bearing baggage tag No. 253235 they were intercepted at the Airport by the customs officers. The suitcase was opened by Inder Singh. The suitcase was found to contain a brief case in unlocked condition. The brief-case contained four packets containing metalic pieces wrapped in adhesive tapes. On opening these four packets they were found to contain 20 bars of foreign mark gold. The wearing apparels in the brief case were found to fit Harish Chand Verma. Inder Singh during interrogation made a detailed statement regarding the smuggling activities of Harish Chand Verma. He also disclosed the involvement of Shiv Kumar Misra, 0m Prakash and some others in the smuggling activities. On further information received from Inder Singh and Harish Chand Verma, 0m Prakash son of Ram Swarup and Shiv Kumar Misra (the detenu herein) were arrested from the Delhi Railway Station where they had arrived by train from Lucknow. First both Misra and 0m Prakash denied possession of any gold but on a sustained questioning 0m Prakash disclosed that he was carrying gold concealed in his chappals/sandles and in the Nefa of his underwear which was worn by him. The sandles worn by 0m Prakash were found to contain specially carved out cavities which were tightened by newspaper packing and were further sticked with a white coloured cloth self adhesive tape. After removing there inforcements 5 pieces of gold were recovered from the cavity of his left sandle/chappal. In all 16 pieces of gold of foreign origin weighing 1889.650 grams valued at Rs. 4,03,440.00 were recovered. However, from the search of the person of Shiv Kumar Mishra nothing incriminating except railway ticket and reservation ticket were recovered. Both Om Prakash and Mishra on interrogation made detailed statements regarding the smuggling of gold from Nepal into India.

(5) Mishra stated that he joined Harish Chand Verma at his shop in Maliwara in January 1984 at a salary of Rs. 300.00 per month which was later on increased to Rs. 400.00 . that his sister's wedding was fixed for 22nd April 1985 and he requested Verma for an advance of Rs. 2000.00 but Verma asked him to work with his other men (carriers) and he would be paid what he had asked for. The detenu stated that he accepted the offer and he went to Kathmandu just after the Holi with inder Singh, Kailash, Om Prakash, Hari Babu and Ram Avtar and brought gold into India and he was paid RS.100.00 . He further stated about the visit of 8/9th April to Kathmandu in which he had been caught from the Delhi Railway Station.

(6) Shri Kapil Sibal. learned counsel for the petitioner, has contended that in passing the impugned order of detention the detaining authority has taken into account non-existent material.

(7) To appreciate the contention of Mr. Sibal it will be useful to reproduce paragraph 9 of the grounds of detention and it reads as under : "Shedding more on their smuggling operation you continued his statement and inter alia stated that the four people namely 1. Inder Singh, 2. Om Parkash, 3. You, 4. Hari Babu Pandy had .gone to Kathmandu 5 to 6 times and .all of them used to stay in Hotel Paradise every time; that Harish Chand Babu used to be already present there; that there Harish Babu used to bring gold biscuits packed in adhesive tape, separately of each of them and afterwards you and others used to conceal the gold biscuits inside the cavities of the shoes worn by you and others; that you used to give the shoes with the contraband gold to Harish Babu and each person used to have eight pieces of gold weighing approximately two kilos"

(8) Shri Sibal contended that the word 'you' in the second line of ground No. 9 obviously refers to the detenu and the detenu never made the statement contained in ground No. 9. He further contended that there is no material on the record that the detenu Mishra had gone 5 or 6 times to Kathmandu. The evidence is that he had once gone in March and the second time when he was caught. Shri Sibal contended that it is obvious that the detaining authority had not gone through the grounds of detention itself and had only mechanically signed the detention order. (We find that ground No. 9 when read Along with ground No. 8 shows that ground No. 9 is a continuation of the statement made by Harish Chand Verma. It seems, the grounds of detention were framed at the same time against all the persons figuring in this case. The detaining authority, it seems, has 268 not taken care to evaluate the material in respect of each detenu and thereafter framed the grounds against him. The fact remains that the allegations contained in paragraph 9 do not pertain to the detenu Mishra and they are non-existent as far as be is concerned. Thi¯ would be clearly a case of non-application of mind. See Jai Singh and others v. State of Jammu and Kashmir, . We cannot say with certainty but it is likely that the mind of the detaining authority was influenced by the fact that the detenu had repeatedly (5 or 6 times) gone to Kathmandu and brought gold. The reality is that he had gone twice and that too in the circumstances mentioned by him in his statement.

(9) For the reasons stated we allow the petition and quash the order. of detention.