Somnath Kundu vs Union Of India And Others
1987 Latest Caselaw 4 Del

JUDGMENT

1. The petitioner has challenged the detention order dated 12th of September, 1986 passed by Shri Tarun Rai, Joint Secretary to the Govt. of India under Section 3(1) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act,1974 (as amended) in respect of the detenu Som Nath Kundu. The order of detention has been made with a view to presenting him from engaging in transporting the smuggled goods. The detention order was passed in respect of an incident which took place on 12th of May 1986 and in pursuance of the detention order the detenu was actually taken into custody on 29th of September, 1986.

2. The brief facts about the incident, as alleged are that one Govinda Sarkar, a national of Bangladesh allegedly brought five pieces of foreign marked gold and handed over the same to the detenu Somnath Kundu and the detenu in his turn handed over the smuggled gold to Swapan Kundu. This gold was being transported from Bashir Hatt to Calcutta on a scooter allegedly belonging to one Monoranjan Kundu, who was accompanied by Swapan Kundu and Samir Nandy at the time the scooter was intercepted and the smuggled gold was recovered. On the basis of these facts the detaining authority came to the conclusion that the detenu Somnath Kundu ought to be detained with a view to preventing him from transporting the smuggled goods.

3. Mr. Trilok Kumar, while arguing the case of the detenu has urged four contentions before me. In the first place the contention is tht there is no nexus between the alleged activity and the purpose of detention. Mr. Trilok Kumar has further assailed the detention order on the ground that there has been non-application of mind inasmuch as the detaining authority has failed to take into account a complaint under Section 135(1)(b)(i) of the Customs Act. It is also stated that this fact was not brought to the notice of the detaining authority even though the complaint was made on 10th of July 1986 and the detention order is dated 12th of September, 1986. The third contention raised by Mr. Trilok Kumar is tht there has been undue and un- explained delay in passing the detention order and as such there is no nexus between the incident and the need for detaining the detenu. Mr. Trilok Kumar's last contention is that the sponsoring authority while recommending the detention of the detenu has suppressed from the detaining authority some most relevant and vital material vitiates the detention order.

4. Let me as such take up the first contention of Mr. Trilok Kumar for consideration. The detention order clearly indicates that the detention is being ordered with a view to preventing the detenu from transporting the smuggled goods. At no stage has it been the case of the sponsoring or draining authority that the detenu was engaged in transporting the goods. The grounds of detention indicate that the main allegation against him is that he received the smuggled goods thereby meaning that the was engaged either in abetting the smuggling of goods or was dealing in smuggled goods. Admittedly he was not caught with the smuggled goods in his possession in the process of transportation . The case of the respondents is that he after receiving the smuggled goods from one the Govindas Sasrkar handed it over to Swapan Kundu and it was actually Swapan Kundu together with Samir Nandu and Manoranjan Kundu who were caught in the process of transporting the smuggled goods. This clearly goes to show that there has been non-application of mind by the detaining authority which has not even cared to find out as to what exactly was the allegation against the petitioner. The order from that point of view can safely be characterized as one having been passed mechanically without even caring to ascertain the purpose for which the detention order was sought to be passed. One can understand the justification for passing the detention order if on the basis of these facts the detaining authority were to pass the detention order with a view to prevention the detenu from abetting the smuggling of goods or with a view to preventing him from dealing in smuggled goods. The facts to the case show that in fact the allegation against the detenu was like that. It was nobody's case that the detenu was engaged in transportation of smuggled goods. That shows that the order of detention has been passed mechanically without caring to find out as to what was the mischief being done by the detenu which was sought to be prevented. On this ground alone, therefore, I find that there has been total non- application of mind and the detention order has to be quashed.

5. I would, however, like to to deal with yet another contention of Mr. Trilok Kumar in respect of the fact of non-application of mind. Mr. Trilok Kumar sates that the compliant was admittedly filed against the detenu under Section 135 of the Customs Act, on 10th July 1986 and even though the order of detention was passed on 12th of September, 1986 this material was never brought before the detaining authority nor was this fact taken into consideration by the detaining authority. The contention is that if this fact were brought to the notice of the detaining authority, the detaining authority may or may not have passed the detention order. In this regard reliance is placed by Mr. Trilok Kumar on Sri Ram Goel V. Union of India and others, 1984 Crl. Law Journal 1048 a Division Bench judgment of thus court. In that case also the point in issue was that when, prior to the passing of detention order prosecution has been launched that whether the proceedings which had taken place in that prosecution, can be regarded as relevant for purposes of deciding as to whether the detention order should be passed or not. The Division Bench of this court was of the view that the pendency of the prosecution is one of the most relevant facts which the detaining authority must consider. This view was expressed on the ground that when detaining authority considers this relevant material it may be that the detaining authority may come to the conclusion that it is not necessary in view of the pendency of the protection to take any further action by way of preventing the detenu. It was thus observed that the detaining authority to make up its mind all the relevant circumstance must be taken into consideration by the detaining authority. The court, however, agreed that what are the relevant circumstances may vary from case to case.

6. In the present case admittedly the prosecution had been initiated aginst the detenu on 10th of July 1986, almost two months before the detention orders were passed. This fact was not brought to the notice of the detaining authority. In the circumstances of this very case it was possible after considering the nature of the involvement of the detenu, the detaining authority may have thought of not passing the preventive detention order. The question is not whether the detaining authority would have still passed the detention order but the question is of principle would have still passed the detention order but the question is of principle which is that the detaining authority must know as to what action, if any, has so far been taken against the detenu. In view of the above said Division Bench judgment (supra) I amm, therefore, of the view that on both the aforesaid grounds this is clearly a case where the detaining authorities failed to apply its mind before passing the detention order. That vitiates the detention order. In view of the aforesaid observations I need not go into the merits or otherwise of the other contentions of Mr. Trilok Kumar. The petition is allowed and the detention order is quashed. The detenu shall be released forthwith unless required in some other case.