Daya Ram vs Union Of India And Ors.
1986 Latest Caselaw 262 Del

JUDGMENT

Sunanda Bhandarc, J.

(1) In this petition under Article 226 of the Constitution of India the petitioner has challenged the detention order dated 12th March 1986 issued by the Deputy Secretary (Home), Delhi Administration, Delhi under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to at the Act).

(2) In the grounds served en the petitioner Along with the detention order it was alleged that on 15th July 1985 the petitioner who was working as a Sweeper in Air India was kept under survillance by the Customs Officer at Delhi Airport. He had attended flight No. Al-301 which came from Hongkong/Bangkok on that day. He Along with other cleaning staff had left the pron area in van No DEV-6260 He alighted near the inter section of the Iac Gate and Tmo of Delhi Airport when he was intercepted and was asked in the presence of two independent witnesses if he was carrying any contraband on his persons. Thereafter, his person was searched as a result of which two rectangular packets wrapped in skin-colour adhesive tape were recovered from the pocket in the 'Nefa' of the uniform pant be was wearing. On examination of each packet eight gold biscuits of foreign origin weighing 10 tolas each with foreign marking were recovered. The petitioner could not produce any permission from the Reserve Bank of India and therefore, the gold biscuits were seized under the Customs Act 1962 It was further alleged that the petitioner disclosed to the Customs Officers that the two packets recovered from him were given to him by one Ram Dass Chauhan, a passenger traveling from Hongkong to Bombay via Delhi on flight No. Ai-301 which was still on ground ready for departure to Bombay. Ram Dass Chauhan was off-loaded Along with his baggage by the Customs Officers. The petitioner in his voluntary statement admitted the recovery of the gold biscuits, however stated that these gold biscuits were handed over to him by Ram Dass Chauhan. Ram Dass Chauhan in his statement dated 15th July 19x5 stated that these gold biscuits belong to one Sardar Parminder Singh also known as Kukki The Customs Authorities were informed that Sardar Parmindri Singh had also travelled from Hongkong to Bombay Along with Ram Dass Chauhan and that before reaching Delhi Kukku Sardar took out two packets wrapped in adhesive tapes from his pocket which contained gold and put them in an air sickness bag and slided under his seat and told him to keep this packet in his custody and delivery it to D(r)ya Ram. the petitioner herein In view of this statement of Ram D 'ss Chauhan the Customs Officer scrutinised the passengers manifest of the flight and noted that Parminder Singh had travelled from Hongkong to Bombay an the same flight and had occupied seat No. 31J. As a follow up action the residential premises of all the three persons namely S/Shri Daya Ram, Ram Dass Chauhan and Parminder Singh were searched.

(3) In the grounds of detention it was further stated that Daya Ram and Ram Dass Chauhan were arrested on 15th July 1985 under the Customs Act and were produced before the A C.M.M., New Delhi on 16th July 1986 and were bailed out by theA.CMM, New Delhi on 30th July 1985, however Parminder Singh moved an application for anticipatory bail before the Additional District & Sessions Judge, New Delhi which was granted to him by the Additional District & Sessions Judge, New Delhi by an order dated 2nd August, 1985.

(4) In paragraph 13 and 14 of the grounds of detention it was stated by the detaining authority that the Administrator of the Union territory of Delhi had seen and gone throw the applications moved in various courts, replies thereof and the judgments of the court and on consideration of this material the Administrator bad no hesitation in arriving at the conclusion that the petitioner bad been engaging and transporting, concealing and keeping smuggled goods and. therefore, was satisfied that be should be detained under the Act in order to prevent the petitioner from engaging in traniporting, concealing and keeping smuggled goods. Along with the detention order and the grounds of detention the petitioner was given a list of documents containing 33 documents.

(5) In paragraph Is of the grounds of detention it was stated that the Administrator of the Union Territory of Delhi had relied on the material mentioned in this enclosed list while making the order of detention of the petitioner under the Act.

(6) On 13th May 1986, the petitioner wrote to the Administrator asking for certain documents to enable him to make an effective representation. In the said application Along with other documents he asked for the application for anticipatory bail moved by Parminder Singh in the court of Add). District & Sessions Judge. New Delhi mentioned at S. No. 24 of the list of documents. The documents were not furnished to the petitioner but by way of abundant caution the petitioner made a representation without waiting for the documents on 20th May, 1986. In this representation the petitioner reiterated his demand regarding the documents and also sought leave to amend the representation as and when documents were furnished to him. A similar representation was made to the Central Government which was also rejected on 30th May 1986. On 20th June 1986 both his request for documents as well as representation were rejected.

(7) In the writ petition the petitioner had challenged the order of detention on several grounds but the two main grounds urged at the time of the hearing were : (A)That the non-supply of material documents referred to in the grounds of detection and relied upon by the Administrator, Union territory of Delhi and the detaining authority having deprived him of eight to make an effective representation and also of non-application of mind by the detaining authority by relying on docunments which were not stated to be not within the power and possession of the detaining authority. It was stated that application for anticipatory bail of Parminder Singh was mentioned at S. No. 24 of the list of documents given by the detaining authority Along with the grounds of detention and yet had admittedly not been supplied. Furthermore, on demand by the petitioner also it was not supplied. (b) The second contention was that the incident wa(r) alleged to have occurred on 15th July 1985 and the complaint was made under Section 135 of the Customs Act on 16th July 1985. The investigation was completed on 5th August 1985 and the order of detention Along with the grounds of detention was issued on 12th March 1986 and served on the petitioner on 16th April 1986. The delay of 8 months in passing the detention order indicates that there was no proximity and/or continuity between the alleged activity and the detention and, therefore, the detention was against the very purpose and spirit of the Act.

(8) In support of his contention on the first point learned counsel for the petitioner relied on Vinod Kumar Arora v. Administrator, Union Territory of Delhi & Others, 1984 Cri. L.J. 1344 and Mohd. Hussain v. Secretary, Govt. of Maharinhtra & 0rs.,1982 Cri. L.J. 1848 and in support of the second contention he relied on Abdul Mumafv. The State of West Bengal, 1974 Scc (Cri.) 857 and Rabindra Kumar Ghosel v. The State of West Bengal, 1975 Scc (Ctl.) 365.

(9) A counter-affidavit was filed by the respondents in reply to the show cause notice issued by this Court wherein it was admitted that the document mentioned at S. No. 24 of the list was not given to the petitioner, however it was stated that there was a typographical error in as much as the list described the document as copy of the anticipatory bail application but what was intended to be given to the petitioner was the copy of the application moved on behalf of the petitioner for reduction in the amount of bond and number of sureties and not the application for anticipatory bail of ParmindeSingh. It was further contended that this document was not material for making a representation inasmuch as the Administrator had not relied on this document while arriving at the subjective satisfaction in passing the order of detention. It was further submitted that the application for anticipatory bail of Parminder Singh wai not in the power and possession of the respondents and, therefore, this document could not be supplied to the petitioner. The mere mention of a document in the grounds of detention did not necessarily imply the that document ought to be served on the detenu. It wai submitted that only a seized document even if referred to in the grounds was required to be supplied to the detenue as held in Vinod Kumar Arora'i caie (inpra), and Mohd. Huliain's case (supra).

(10) On the question of delay it was not denied that the investigation was completed on 5th August 1985, however it was submitted that the order of detention could not be passed till March 1986 because the case had to be scrutinised by the Screening Committee. The reason given for the delay has been stated by the respondent in the affidavit in reply which reads. thus :- "They are wrong and denied. There is no undue delay in pasting the detention order. Investigations in the case went on up to August 1985. Proposal to detain the petitioner and other was received in the Home Department on 13-9-1985. Meeting of the Screening Committee was fixed for 23-9-1985. On 23-9-85 cases of S/Shri Vishwanath Khanna, Vijay Kumar Gujral, Soman Rama Bhadian, Hassan Rashid Hunain, Hussain Ebrahim, Dewa Dorjee, Gopal Sherpa, Balraj Singh, Sulkhan Singh and Ahmad Mohd. Ahmad were discussed in the meeting. The present proposal could not be discussed for want of time. On 27.9.1985 it wai ordered that first previous cases be processed and then put up the present proposal for detention. Meeting was fixed for 30-10-1985 and in the meantime, previous cases were processed. Meeting could not be held on 30-10-85 since the Additional Commissioner of Police who is a member of the Screening Committee was busy in law and order problem. Meeting fixed for 15-11-1985 when this case could not be taken up since the Law Secretary was busy in the Hon'ble Supreme Court. On 26-11-85, cases of Vishwanath Khanna and others were put up turn placing before the Administrator. Meeting fixed for 10.12.1985 when all pending 22 cases including that of the petitioner was considered. Minutes were drawn up on the meantime. On 12-12-1985 the draft grounds of detention order etc. for the detention of Chakravarty Vadrevo and seven other persons were put up for placing before the Administrator. All the cases were processed and formal orders in those cases were issued in the month of January 1986. On 17-2-1986 latest position of prosecution etc. was received from the Customs Department vide letter dated 14-2-1986. After preparing draft grounds of detention, detention orders etc., the present case was put up to the Deputy Secretary (Home). Vetted by the Law Department on 19-2-1986. Case was again put up on 24-2-86. On 28 2.1986 the detaining authority after applying his mind to the facts and circumstances of the case made certain enquiries. The case of the detenue and other accompliance was again put up on 5-2-1986 and the Administrator after due application of mind made order for the detention of the petitioner and his other accomplice on 7-3-1986. Formal orders were issued on 12-3-1986."

It was, therefore, contended that the delay having been explained did not vitiate the order of detention. Learned counsel replied on the judgment of this Court in Cri. W. 150 of 1^4 decided on 4th January 1985.

(11) In order to appreciate the challenge of the petitioner it may be relevant to reproduce paragraphs 10, 13 and 15 of the grounds of detention:- "10.Shri Parminder Singh aforesaid was not available to the Customs Officer and went underground. He filed application for bids anticipatory bail in the Court of Addl. Sessions Judge. New Delhi and he was granted anticipatory bail vide learned Additional Sessions Judge's order dated 2-8-85. 13. The Administrator of the Union territory of Delhi has carefully gone through the facts and circumstances of the cases relevant documents and also the statements of various persons recorded under the Customs Act, 1962 in the subject case. The Administrator has also seen and gone through the copies of applications moved in the various courts, replies thereof and the judgment of the courts. 15. While passing the detection order under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act. 1974 the Administrator of the Union territory of Delhi has relied on the material mentioned in the enclosed list. A copy of these grounds and documents, free translated into Hindi, a language known to you and also enclosed."

It is thus clear that the application for anticipatory bail has been referred to in paragraph 10 of the grounds of detention. In paragraph 13 of the grounds of detention the Administrator is stated to have seen and gone through the copies of the documents moved in various courts and in paragraph 15 he has relied on the documents mentioned in the list while passing the order of detention. It is not denied by the respondents that copy of the anticipatory bail is mentioned at S. No. 24 of the list of documents which is alleged to have been given to the petitioner Along with the detention order, however it is stated that it was an inadvertent typographical mistake and it was fairly conceded by the respondent in the affidavit in reply that this application was not given Along with the documents. In fact, learned counsel for the respondents contended that this document is not in power and possession of the respondents. I find no substance in the contention of the learned counsel for the respondent that only if the document was a seized document and referred to in the grounds of detention it was required to be supplied. In the present case the detaining authority thought it necessary to give this document and, therefore, included it in the list of documents. It was only when the petitioner asked for this document on 13th May, 1986 that it was realised that this document was not in their possession and therefore though it was fairly conceded in the counter-affidavit that the document was not supplied it was stated to be a typographical error in mentioning the same in the list of documents. Even when the petitioners' request was rejected vide latter dated 20th June, 1986 it was not intimated to the petitioner that this document was not intimated to the petitioner that this document was not in the power and possession of the detaining authority. The fact that Parminder Singh filed an application for anticipatory bail and the same was granted to him by the Additional Sessions Judge, New Delhi was mentioned referred and relied by the detaining authority as it is obvious from paragraphs 10, 13 and 15 of the grounds of detention I find it difficult to understand how the document mentioned at S. No 24 which was stated not to be in power and possession of the respondents could have been relied by the Administrator and referred to in paragraph 15 of the grounds of detention by the detaining authority. If the document was wrongly mentioned and it was stated that the Administrator had relied on it there was a total non-application of mind and if the document was rightly mentioned in the list and not supplied the petitioner was denied the opportunity of making an effective representation as guaranteed under Article 22(5) of the Constitution of India.

(12) Now coming to the second question regarding delay in making the detention order. It is not denied that the detention order was passed 8 months after the investigation was completed, however it is stated that the members of the Screening Committee were busy and, therefore, the petitioner's casc could not be considered early. From the dates given by the respondent in its affidavit it appears that the Screening Committee took about two months time to scrutinise the case of the petitioner. That is the period between 23-9-1985 to 10-12-1985 The detention order was issued on 12th March, 1986 i.e about 3 months thereafter and the petitioner was detained after a further period of one month on 16th April, 1986. There is no cogent and tenable explanation for these three months. It is, therefore, difficult to accept that there is proximity/continuity between the occurrence and the detention of the petitioner.

(13) In the result the petition is allowed. The order of detention dated 12th March, 1986 is hereby quashed. The Rule is made absolute. The petitioner is directed to be set at liberty forthwith unless required to be detained under any other valid order passed by a court or any other competent authority.