Bhuramal Jain Uttam Chandvijay ... vs Union Of India And Ors.
1987 Latest Caselaw 467 Del

JUDGMENT

D.P. Wadhwa, J.

(1) By this judgment. I propose to decide four writ petitions being Criminal Writs Nos. 211,239, 281 and 283 of 1987 of our different petitioners.

(2) These four petitioners were detained on the basis of four different orders passed on 1-4-1987 under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (for short the Act). The petitioners seek quisling of the detention orders and issuance, of a writ of hatexs corpus or any ether appropriate writ for their being set at liberty.

(3) The Directorate of Revenue Intelligence (DRI) had information that Vijay Kumar (petitioner in Cr.W. 239/87) was engaged in receipt, storage and disposal of smuggled gold on a large scale. Surveillance was mounted on him and as a result on 11-3-1987 300 gold biscuits of 10 tolas each (34,995 gm) bearing foreign markings and of 999.0 (24 carats) purity were recovered. The gold valued over Rs. 92 lacs. Of these 100 gold biscuits were recovered from Uttam Chand (petitioner in Cr. W. 281/87), a milk vendor who was supplying milk to Vijay Kumar for the last few years and under arrangement with Vijay Kumar was keeping the smuggled gold in his house. The other 200 gold biscuits were recovered from the residence of Bhuralal lain (petitioner in Cr. W. 211/87), a friend of Vijay Kumar. It was stated that Raj Kumar @ Chhotu (petitioner in Cr. W. 283/87), who was servant of Vijay Kumar, obtained these 200 gold biscuits from the residence of Uttam Chand on the direction of Vijay Kumar who on coining to know of the recovery of 100 pieces of gold biscuits from Uttam Chand and subsequent action by the Dri officers had instructed Raj Kumar to deliver these gold biscuits at the residence of Bhuramal Jain for safe custody.

(4) Vijay Kumar was detained by an order dated 1-4-1987 of Mr. Tarun Roy, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods Likewise Raj Kumar Chhota was detained with a view to preventing him from engaging in transporting smuggled goods Uttam Chand was detained with a view to preventing him from engaging in keeping and concealing smuggled goods; and Bhuramal Jain was similarly detained with a view to preventing him from engaging in keeping and concealing smuggled goods.

(5) The cases of the petitioners were referred to the Advisory Board constituted under sub-clause (a) of clause (4) of article 22 of the Constitution for its opinion if there was sufficient cause, for their detention. The Advisory Board was composed of Justice yogeshwar Dayal Chairman, a sitting Judge of this Court, Justice S. N. Shankar, a retired Chief Justice of the Orissa High Court and also a former Judge of this court, and Justice M. L. Jain, a retired Judge of this court, as memoers. The Advisory Board granted hearing to the petitioners on 29-4-1987. While the detenu Bhuramal Jain was represented by his counsel before the Advisor Board, the other three detenus appeared in person. The Advisory Board the after sent its report which is dated 13-5-1987, and the Central Government by different orders made under clause (f) of 5.8 of the Act confirmed the detention in respect of all the four petitioners as in the opinion of the Advisory Board there was sufficient cause for the detention of the petitioners. Under S. 10 of the Act the Central Government directed that the petitioners be detained for one year from the date of their detention.

(6) The writ position (Cr. W. 211/87) was filed by Bhuramal Jam on 30-4-1987, by Vijay Kumar (Cr. W. 239/87) on 3-5-1987, and by Uttam Chand (Cr. W. 281/87) and Raj Kumar Chhotu (Cr. W. 283/87) the writ petitions were filed on 9-6-1987.

(7) The grounds of detention which are in the narrative are common v. the cases of all the four petitioners. To appreciate various contentions raised in these petitioners, it will be appropriate to -set out these grounds in brief.

(8) Dri was having intelligence over a period of time that Vijay Kumar, a resident of D-128, Ashok Vihar, Phase 1, New Delhi, was engaged in receipt, stooge and disposal of smuggled gold on a large scale. Information was received on 11-3-1987 by the Dri that a large quantity of gold had been received by Vijay Kumar and was stored at his instance in various premises. A surveillance was mounted in the vicinity of the residence of Vijay Kumar on 11-3-1987 at 6.15 in the morning. At about 7.45 a.m. Vijay Kumar was noticed coming out of his house and seizing into a white Maruti car (registration No. Dbd 6022) parked in the street outside his residence. Vijay Kumar drove the car to J-Block Market, Ashok Vihar, Phase I, and on his way picked up a person (later identified as Uttam Chand) who was waiting on the roadside. Both of them drove the car for sometime and thereafter that Uttam Chand was dropped at the corner of J-Block Market. A little later Uttam Chand reappear ed at the same place and at that time he was carrying a white coloured bag. He was apprehended after a brief struggle. In the presence of two witnesses Uttam Chand disclosed his identity. The white coloured bag was searched and that resulted in recovery of 100 foreign marked gold biscuits each weighing 10 tolas. These were seized. Uttam Chand disclosed that the said gold had been given to him by Vijay Kumar The officers, the panch witnesses arid Uttam Chand proceeded towards the residence of Vijay Kumar. On their way, the officers spotted Vijay Kumar in his aforesaid white Maruti car and intercepted him and asked him to accompany them for the search of his residence. Search of the residential premises of Vijay Kumar did not result in recovery of any incriminating thing. Maruti car was, however, taken over under a panchnama. On further questioning Uttam Chand disclosed that Vijay Kumar had given him 300 gold biscuits and the remaining 200 biscuits were still lying in an almirah in his house. The residential premises of Uttarn Chand at I-55, Ashok Vihar, Phase I, were thereafter searched but nothing incriminating was 'recovered, During the course of the search, Narinder Kumar, son of Uttam Chand, came there and he told that 200 gold biscuits kept in the almirah had been taken away by Raj Kumar Chhotu, servant of Vijay Kumar,v Shop premises of Vijay Kumar at 141, New Lajpatrai Market, Delhi, were searched on the same day but again nothing incriminating was recovered. Ram Prakash, father of Vijay Kumar, and one other person Man "Singh were present at the lime of search of the shop premises. After some time information was received that Raj Kumar Chhotu was present at 4279, Bbairon Wali Gali, Room No. 4, Jogiwara, Nai Sarak, Chandni Chowk, Delhi, and those premises were also subjected to search but nothing incriminating was recovered. Raj Kumar Chhotu was found present in the premises and he was questioned about,the where abouts of 200, biscuits of gold taken by him from the residence of Uttam Chand. He disclosed that the said 200 gold biscuits had been delivered by him to Bhuramal Jain at E-19, Ashok Vihar, Phase-I, New Delhi, at the instance of Vijay Kumar. The aforesaid residential premises of Bhuramal Jam were searched which resulted in recovery of 200 gold biscuits bearing foreign marking from a zipper bag. These were also seized.

(9) Statements of ail the petitioners and others were recorded under S. 108 of the Customs Act, 1962. Vijay Kumar stated that he along with his father was running a watch shop at New Lajpatrai Market since 1975 and till 1977 the shop was a notified shop under the Customs Act and that be was also selling wrist watches of foreign origin. He admitted that his shop was searched three times in the past and wrist watches of foreign origin seized, fie said presently his shop was managed by his father and Man Singh and that he visited the shop occasionally. Vijay Kumar further stated that in the first week of January 1987 he was introduced to one Mohindeen stated to be a Dubai based gold smuggler. The introduction was through a friend named Jaccki who was having a shop in Hongkong. Vijay Kumar stated that he met Mohindeen in Hyatt Regency Hotel in New Delhi and at the suggestion of Mohindeen he agreed to sell foreign marked gold on commission. Vijay Kumar was to be paid commission at a fixed rate of Rs. 5 per tola. Mohindeen gave him the names of two persons, namely, Chandra Bhan and M.P., who were to contact, Vijay Kumar for supply of foreign marked gold biscuits. Vijay Kumar did not know the addresses or whereabouts of these two persons, They, however, were contacting him on the telephone number given by Vijay Kumar and supplied Vijay Kumar in all 1150 biscuits of foreign marked gold between last week of January 1987 to March 7, 1987. Vijay Kumar was to receive further 200 pieces of foreign marked gold biscuits in the morning at 7.15 A.M. on 11-3-1987 from one Raman, a man of Chandra Bhan. Vijay Kumar had not seen Raman earlier but Chandra Bhan had told him that he had given his car number to Raman and Raman was to contact him at the appointed place. However, though Vijay Kumar reached the appointed place nobody contacted him and he thereafter returned after waiting for 15-20 minutes. As regards 300 gold biscuits in question, Vijay Kumar stated that it was on 7-3-87 that he had received this gold from Chandra 'Bhan at Wazirpur Petrol Pump and had given the same to Uttam Chand at Ashok Vihar Super Bazar Market where Uttam Chand was waiting for him as pre-planned. Uttam Chand took these gold biscuits to his house on the scooter of Vijay Kumar bearing registration No. Dii 7221 which Vijay Kumar had loaned to Uttam Chand for the purpose. , These gold biscuits could not be disposed of unstill 11-3-1987 as one Prakash Luniya, sole buyer from Vijay Kumar, had been arrested by the Enforcement Directorate. However, in the evening of 10-3-1987 Vijay Kumar fixed with Pincky, son of Prakash Luniya, to deliver 100 gold biscuits to him on the next morning at 7.45 A.M. near J-Block Market, Ashok Vihar, Phase I, New-Delhi. Vijay Kumar thereafter disclosed in detail his meeting Uttam Chand in the morning of 11-3-1987, his observing Uttam Chand being apprehended by She officers, his return to his house and instructing his servant Raj Kumar alias Chhotu to bring the remaining 200 biscuits of gold from the house of Uttam Chand to the house of Bhuramal Jain and his apprehension by the Dri officials. Vijay Kumar also stated that Bhuramal Jain was his friend for the last 2 years but that he was not concerned with the gold in question. As regards Prakash Luniya, Vijay Kumar stated that housed to give delivery of gold to Prakash Luniya's servant, namely, Rajesh @Parmanand.

(10) Uttam Chand in his statement said that he owned some cows and buffaloes and supplied milk in the Ashok Vihar Colony and that he know Vijay Kumar to whose house he was supplying milk daily for the last four years. He said Vijay Kumar was having a shop at 141, New Lajpatrai Market He had a servant warned Raj Kumar Chhotu who was working both at the shop and the house of Vijay Kumar. Uttam Chand said that Vijay Kumar had proposed to him that if he agreed to keep smuggled gold in his house he would be paid Rs. 40 per biscuit of gold and that out of greed he agreed to this arrangement. Uttam Chand said that this arrangement was made in January 1987 and then he gave the details as to how he was keeping smuggled gold biscuits in his housed He said on 7-3-1987 Vijay Kumar had delivered him 300 gold biscuits in Ashok Vihar, Super Bazar, which he kept in a steel almirah in his house. He said that on 11-3-1987 he was to deliver 100 gold biscuits to Vijay Kumar at Murga Market, J-Block, where while he was waiting for Vijay Kumar he was apprehended by Dri officials. He said he had told the officers that other 200 gold biscuits were lying in his house. This fact Uttam Chand had told in the house of Vijay Kumar where he bad been taken by the officers. Uttam Chand said that on reaching his house, he learnt that 200 gold biscuits had been taken away by Raj Kumar Chhotu and that these had been given to him by his son Narinder KtiTimr after breaking- open the almirah. Uttam Chand said Raj Kumar Chhotu had taken away these biscuits in the dicky of scooter bearing registration No DU 7221. At that time. Raj Kumar had 'told Narinder Kumar, son of Uttam Chand P Chand. Uttam by dictated as. Kumar Narendar son his by. written was statement lan^iage, any write or read not could he that stated Chand As Kumar. Vijay owned which Delhi, Market, Lajpatrai New 141, at premises shop the to biscuits gold those taking

(11) RA) Kumar Chhotu in Ms statement said that he Lad come to Delhi about 7 years back and got' a job in the shop of Vijay Kumar and for the last 3/4 years he was staying in the house of Vijay Kumar. He said he was aware that Vijay Kumar was dealing in smuggled gold biscuits. He said on 11-3-1987 Vijay Kumar had gone out of the house at about 7.15 A.M. in. his white Maruti Car and that at about 8.00 A.M. Vijay Kumar had come back to the house and appeared to be in a hurry Vijay Kumar told Raj Kumar to take the gold biscuits from Narinder Kumar & give them to Bhuramal Jain in E Block. Raj Kumar said he knew Uttam Chand & his son Narinder as they used to come to the house of Vijay Kumar and lived in I-55. Ashok Vihar Raj Kumar also stated that Bhuramal Jain also lived in Ashok Vihar at E-19 and used to come to the house of Vijay Kumar. Raj Kumar then stated as to how he went to the house of Uttam Chand, met Narinder and as Narinder was not having key to the steel almirah, it was broken open and a bag filled with foreign gold biscuits was taken out. Thereafter, Raj Kumar wont to E Block and delivered the gold biscuits to Bhuramal Jam and told him that Vijay Kumar had asked him to keep them. Raj Kumar then came back to Lajpatrai Market and parked his scooter bearing registration No. Dii 7221 in the market and went out for a walk. He said thereafter he went to the shop of his friend at No. 4279. Gali Bhairon Wall Nai Sarak, Delhi, where officers of Drt came and questioned him about the place where he had kept the foreign marked gold biscuits. He said he told the truth arid he along with Dri officers went to E-Block where the house of Bhuramal Jain was searched and a bag filled with 200 gold biscuits of 10 tolas each was recovered. Raj Kumar said it was the same bake which he had brought from the house of Narinder. The scooter bearing registration No. Dii 7221 was also seized under a panchnama dated 13-3-1987.

(12) Bhuramal Jain stated that he knew Vijay Kumar for the last about 2 years and that he had met Vijay Kumar in his shop at 141, New Lajpatrai Market. He said at about 8.30 A.M. on 11-3-1987, Chhotu, servant of Vijay Kumar, came to his house on a blue coloured scooter bearing registration No. Dii 7221 and took out a bag from the front dicky of the scooter and told him That the bag contained foreign marked gold biscuits and that his 'Seth' i.e. Vijay Kumar had requested Bharamal Jam to keep the said bag in safe custody. Bhuramal Jain said after Chhotu left he opened the bag and found that it contained foreign marked gold biscuits. He said he thereafter left for his office at 11.00 A.M. and when he returned home in the evening some people came to his house along with Chhotu and they introduced themselves as Dri officials. His residence was searched by these officers and 200 biscuits of foreign marked gold recovered from a canvas rexin coated bag. He said on being asked by the Dri officers he had told them as to how the bag containing gold biscuits was brought by Chhotu and as he was a friend of Vijay Kumar he did not enquire about the contents of the bag and that Chhotu had told him that the bag belonged to Vijay Kumar and was to be kept in safe custody. Bhuramal jain admitted that he was aware that keeping, carrying or concealing in one's house or buying or selling foreign marked gold was an offence. Bhuramal Jain was also shown a diary recovered from his house which contained telephone numbers of Vijay Klixnar both of hL shop and of his residence. Statements of Narinder Kupiar, son ^f Uttam Chand, Mrs. Kamal Kumar wife of Vijay Kumar, and certain other persons were also recorded, and find mention in the grounds of detention . Then the grounds recite about the retraction of the statement ^ by the detenus and others and further court and adjudication proceedings. Lastly, it was mentioned that even though adjudication and prosecution proceedings under the Customs Act were likely to be initiated against the detenus. the detaining autbority, respondent No. 2 was satisfied that it was necessary to Detain them under the Act. They were informed that in case they wished to make a representation against their detention. they could do so both to the detaining authority and/or the Central Government. They were also informed that they could also make a representation to the Advisory Board as well and they would also be heard by the Advisory Board if so desired pr if the advisory Board considered it es^'iti^l to d: so.

(13) In the case of Bhuramal Jain, it \\as contended that he -was running a courier service (Angari and was a casual acquaintance of Vijay Kumar through, they both lived in the same city Ashok Vihar. The own circumstances t^t was alleged against Bhuramal Jain was that 200 gold biscuits bearing foreign inarching were delivered to him for safe keeping. It was submitted that it was per chance that Vijay Kumar thought of Bhuramal Jain and instructed his servant Ra' Kumar Chhotu to deliver the gold at the house of Bhuramal Jain. In fact, in the grounds of detention there is a mention that Bhuramal Jam.hao no concern with the gold in question as per -statement of Vijay Kumar. There was no monetary sam for Bhuramal Jain in keeping the , and no past act was.. issued against him and it was. submitted that he was merely a victim- of circumstances who was foolish enough to, help a friend with- out Realizing the consequences of his act. It was also submitted that when the officers came with the search warrants of the house of Bhuramal Jain, the gold was found lying in the bagman almirah and was in the same condition as was delivered by Raj Kumar earlier in the day. It was submitted that it could not be said that gold was kept concealed and that the circumstance regarding recovery of gold from an almirah in the house of Bhuramal Jain was more consistent with his innocence. It was disputed that a single incident of its own may lead to paying of a detention order. It was further submitted that the term "engaging in" indicated continuous course of activity and that there should be material to show either of past antecedents and/or future capacity to indulge in similar acts as were attributed lo a detenu. There was no material whatsoever with the detaining authority to pass the impugned order and it was also submitted that keeping" and "concealing" were two different things and further that in any case there was absolutely nothing on record that Bhuramal Jain was engaging in concealing of smuggled goods. Mr. Chawla, learned counsel for Bhuramal Jain took me through the grounds and particularly the statements of Vijay Kumar, Raj Kumar and Bhuramal Jain to show that there was not an iota of evidence to indicate that Bhuramal Jain was engaging in concealing of smuggled goods. It was submitted that no doubt the preventive detention was a jurisdiction of suspicion but then there must exist some material that in the past the detenu had been so engaged in keeping and concealing smuggled goods. Mr. Chawla said it was a clear case of non-application of mind by the detaining authcrity. Mr. Misra, learned counsel for the Union,of India, contended with reference to the information available with the Department that the petitioner's house was one of the "safe houses" where Vijay Kurnar was keeping gold. He said that considering the quantity and value of the smuggled gold and the ease with which Bhuramal Jain kept gold when delivered at his house by Raj Kumar, a servant of Vijay Kumar, and the knowledge that gold was smuggled and further that it was an offence to keep smuggled gold, it could not be said that the subjective satisfaction of the detaining authority to pass the order of detention was wrong. Mr. Misra said it was not for the court to weigh the material on record and he also referred to a diary of Bhuramal Jain which had been recovered from his house wherein telephone members of the shop and residence of Vijay Kumar were mentioned. Mr. Misra said that there was concealment as well as search warrants had to be obtained and house of Bhuramal Jain searched to recover the gold. He said that Bhuramal Jam.did not voluntarily hand over the gold when the search party arrived at his house. Mr. Misra is correct that there was enough material on record for the detaining authority to arrive at the conclusion that Bhuramal Jain was engaging in "keeping" smuggled goods. But, to my mind, he was not correct in his submission that Bhuramal Jain was also engaging in concealing smuggled goods. The order of detention has been passed both on the basis of Bhuramal Jain engaging in keeping smuggled goods and engaging in concealing smuggled goods. "Keeping' and "concealing' are distinct terms. "To conceal" would mean to hider; to secret. The gold was found in the almirah in the room is the house of Bhuramal Jain. It is not that the almirah was broken open That was the most ordinary place to keep a valuable thing. The team of officers which was armed with a search warrant would nevertheless have searched the whole house. It is not the case of the respondents that Bhuramal Jain had hidden or secreted away the gold in some unusual place from where it was recovered. There was, thus, no material with the detaining authority for it to be subjectively satisfied that the petitioner was engaged in concealing smuggled goods. To tide over this flaw in the impugned order Mr. Misra relied on S. 5A of the Act which protects the detention order even if one or some of the grounds is or are vague, non-existent, not relevant, etc., to contend that even if it was held that the impugned order was bad on the ground that Bhuramal jain was not engaging in corn dealing smuggled goods, it would stand in respect of his engaging in keeping smuggled goods. I am afraid this argument is of no avail as the grounds in S. 5A refer to the grounds of detention mentioned in sub S.(3) of S. 3 of the Act and not to the purpose of making the detention order which purposes are mentioned in sub-s (1) of S. 3 of the Act. Elaborating his argument further, Mr. Misra submitted that the world "ground" in S. 5A had two ingredients-(1) basic facts, and (2) conclusions drawn from those basic facts by the detaining authority. These conclusions could also be called or referred to as factual inferences arrived at by the detaining authority. Snb-s. (3) of S. 3 contemplated these factual inferences and once these factual inferences were arrived at, it might be said that the detaining authority was satisfied that ground existed for passing of the detention order and thereafter detention order was passed. Mr. Misra said that everything that happened before the order was passed was in the realm of grounds and thus, according to him. S. 5A would be applicable. In support of his this submission Mr. Misra also relied upon a decision of the Supreme Court in Prakash Chandra v. Commissioner & Secretary. Govt. of Kerala . In this case one of the arguments was that the detaining authority had not taken into account the retraction of the confession by the detenu as confession was one of the grounds on which detention order was passed. The court referred to S. 5A of the Act and article 22(5) of the Constitution. It held referring to the observations of the Supreme Court in Smt. Shation Soni v. Union of India that the 'grounds' under Art. 22(5) of the Constitution did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences. Then, the court observed as made, "IN the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detens is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention (cenfession?) but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether even if the facts stated in the confession are completely ignored, then the inferences can still be drawn from other independent and objective farts mentioned in this case, namely the fact of seizure after search of 60 gold biscuits from the suit-case of the daughter' in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations-Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenus for the purpose of section 3(1)(iii) and 3(l)(iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference drawn from contession."

(14) I do not think that the aforesaid decision of the Supreme Court helps. Mr. Misra in his submissions. The Act provides turn preventive detention in certain cases for purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith, la fact, the purpose for which it is necessary to pass a detention order is the object of the Act itself but the purpose cannot be equated with the grounds which led to passing of the detention older. Mr. Trilok Kumar, who also appeared for Bhuramal Jain, submitted with reference to the grounds of detention that paras 1 to 21 of the grounds stated the material, while paras 22 and 23 contained the conclusion arrived at by the detaining authority and thereafter the detention order followed. He said that the grounds mentioned in Sub-s. (3) of S. 3 of the Act could not be equated with the purpose mentioned in Sub-s.(l) of that section. He said S. 5A of the Act was inapplicable and the detention order had to be quashed as' there was no circumstance from which it could be said that the detaining authority came to the conclusion that Bhuramal Jain was engaging in concealing smuggled goods. He said the satisfaction was just fanciful in the present case. After going through the grounds of detention and the impugned order of detention, I am of the view that the submission of the petitioner Bhuramal Jain is correct that there is nothing in the grounds of detention from which it could be home out that the petitioner was engaging in concealing smuggled goods and this reflected non-application of mind by the detaining authority. On this submission itself, the impugned order of detention in the case of Bhuramal Jain has to be quashed In this view of the matter, it is net necessary for me to refer to various other submissions made by Mr. Chawla challenging the order of detention. The petition of Bhuramal Jam (Cr. W.211/87) has to succeed and rule made absolute.

(15) In the case of Uttam Chand (Cr. W.281/87), counsel for the petitioner stated that he had various contentions to challenge the impugned order of detention but that he would press into service only two of such contentions. These were (1) the petitioner did not know Hindi and English and as such the petitioner was deprived of making an effective and purpose ful representation. He wrote a letter to the detaining authority to supply the documents in Urdu but the same were not supplied to him which made the detention illegal. (2) The petitioner was in jail. He had not applied for bail. There was no likelihood of his being released from jail. The fact that there was no necessity to preventively detain the petitioner was not kept in wind by the detaining authority and as such the detention was illegal. It was a case of double detention and there was no compelling necessity for the detaining authority to pass the impugned order of detention.

(16) In the petition, it was stared that the petitioner Uttam Chand did not know English or Hindi nor could he read or write the same. He could only read and write Urdu. He was not given the grounds of detention, the detention order and the documents in the language understandable by him within 5 days or in exceptional circumstances within15 days and as such his right to make an effective representation had been violated. If was also stated that the petitioner had on 23-4-1987 represented to the detaining authority to supply him copies of all documents. grounds of detention and the detention order in Urdu. This representation was made by the petitioner in Urdu and a copy of the English translation thereof was filed along with the petition. It was also stated that before the Advisory Board as well the petitioner had requested for supply of ail these documents in Urdu language. Since these documents had not been supplied as prayed, it was contended that this made the detention illegal. as the provisions of articles 22(4) and 22(5) of the Sub-s. (3) of S. 3 of the Act stood violated. In the counter-affidavit filed by Mr. Tarun Roy, the detaining authority, these contentions were denied. It was stated that when Uttam Chand gave voluntary statements before the Assistant Director, he had stated that he could not write Hindi, English or any other language. On his request his son Narinder Kumar recorded his statement as dictated to him by the petitioner and which the petitioner signed in Urdu. It was stated that the petitioner dictated his statement to his son in Hindi and his son wrote the same verbatim as directed by the petitioner in Hindi. The petitioner never mentioned that he could write or read Urdu as was now being alleged by him. It was also stated in the counter-affidavit that all these documents, namely, the order of detention, grounds of detection and copies of the documents were read out to the petitioner and explained to him by Mr. Qumuruddin, an intelligence officer in the office of the Dri, and that the petitioner understood the same. An affidavit of Mr. Qumuruddin testifying to this fact was also filed.

(17) In support of his contention Mr. Herjinder Singh referred to an unreported decision of this Court in Mohd. Akram v. Union of India (Cr. W. 13/86, decided on 4-3-1986). In this case, the detenu had contended that he did not know English, Hindi or Punjabi while the documents relied upon were in either of these languages. He, therefore, asked for the Urdu translation of all these documents for him "to enable him to submit my representation before you, in order to prove my innocence". in this case also, the application to the detaining authority for supply of the copies in Urdu language was made in Urdu and an English translation thereof was filed with the petition. The. detaining authority treating this application as representation rejected the same. and also stated that as the detenu was illiterate and was not in a position to read any language, his demand for supply of copies in Urdu language was, therefore, not bonafide. The Court observed that the application of the petitioner could not be considered as a representation challenging the detention and relied upo a decision of the Supreme Court in Ibrahim Ahmad v. State of Gujarat to hold that the detaining authority was obliged to supply copies of the documents in Urdu as requested by the detenu. The facts of this case are not exactly similar to the, one before me. Whether the detenue was deprived of his effective and purposeful representation in a given case would depend upon the facts and circumstances of that case. Ibrahim Ahmad's case (supra) the detenu was detained under S. 3(1) ofthe Act. There was recovery of 700 pieces of gold with foreign markings weighing 7000 tolas, radios. camera video cassette, recorder, colour T.V., synthetic fabrics, crockery, etc., of considerable value and Indian- currency of Rs. 72,766. The Advisory Board in its report stated that though at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu, the subsequent failure on the part of the detaining authority to supply the translations in Urdu of the grounds and documents relied upon was a clear violation of the constitutional mandate of article 22 so as to vitiate the order of detention. Following the opinion of the Advisory Board, the detenu was released on 1-7-1982 but he was again detained on 2-7-1982 by an order again made under sub-s. (1) of S. 3 of the Act dated 1-7-1982. He was served with the .grounds of detention in English as well as translated in Urdu together with copies of all the statements and documents, in original language, i.e. English, Hindi and Gujarati, on 7-7-1982. Urdu translations of the bulk of the statements and documents were supplied to the detenu on 15-7-1982. One of the arguments raised was that there bad been violation of the provisions of article 22 read with S. 3 of the Act which made the detention illegal. It was contended that the detenu knew English figures, understood Eaglish words written in capital letters and could also converse or talk in Hindi or Gujarati and as such non-supply of Urdu translations of some of the documents could not be said to have caused any prejudice to him in the matter of malting a representation against his detention. The Court observed that this explanation was hardly satisfactory and could not condone the non-supply of Urdu translations of the documents. It was observed that the detenu was a Pakistani national and Urdu seemed to be his mother tongue and that a little, knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translation to him of the documents. The Court also observed that the Advisory Board on an earlier occasion had actualy opined that the failure to supply Urdu translations of the grounds of detention and documents had vitiated the order of detention and following that opinion the detenu had been released. With reference to documents Urdu translations of which were not supplied, the Court held that these documents were quite material and non-supply of the same clearly prejudiced the detenu in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in article 22(5) of the constitution was clearly violated.

(18) In Prakash Chanda v. Commissioner & Secretary, Govt. of Kerala (supra) also, one of the contentions raised was that the grounds were not communicated to the detenu in a language understood by him. It was observed that the Constitution required that the grounds must be communicated and, therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he could make effective representation. The detenu in this case was stated to be knowing only Gujarati. The grounds of detention were initially supplied to the detenu in English within 5 days of his arrest and translated copy of the grounds in Hindi was also supplied to him though beyond a period of 5 days. Certain annexures of the documents supplied were in Malyalam language. It was urged that there was non-compliance with the provisions of law. The Court held that the detenu was merely feigning ignorance of English and that that the detaining authority had come to the conclusion that the detenu knew both Hindi and English. The Court also held that whether grounds were communicated or not depended upon the facts and circumstances of each case. In that case, the Court observed that it was difficult to accept the position that in the peculiar facts of that case the grounds were not communicated in the sense the grounds of detention were not conveyed to the detenu. In Taering Dolkar v. Administrator. U.T., Delhi (AIR 1987 Sc 192(5), the Supreme Court observed that the detenu had to be informed about the grounds of detention in a language which he understood. In this case, the stand of the detaining authority was that wife of the detain knew the language in which the grounds were supplied to the petitioner. This was held to be irrelevant and would not satisfy the legal requirement. The test, therefore, is if the grounds of detention have been communicated to the detenu in the sense whether these ale in the language understood by the detenu to enable him to make an effective and purposeful representation against his detention. In the present case it has been stated by the detaining authority that in a statement recorded under S. 108 of the Customs Act, 1962 the petitioner Uttam Chand had stated that he could not read or write Hindi or English or any other language and that he did not state that he could read of write Urdu. On the request of Uttam Chand, therefore, his son Narinder Kumar recorded his statement as dictated by Uttam Chand which of course, was signed by Uttam Chand in Urdu. The statement was taken down by narinder Kumar verbatim as dictated to him by Uttam Chand in Hindi. The test, therefore is fully stained in the facts and circumstances of the present case. The objection of Uttam Chand that he was not supplied with the grounds of detention in Urdu is thus of no consequence. A reference may be made to the affidavit of Mr. Qamruddin, Intelligence officer, which was filed as annexure to the counter-affidavit of the detaining authority. Mr. Qamruddin has stated in the affidavit the as part of his official duties he served the order of detention Along with the grounds and the documents on Uttam Chand on 2-4-1987 and that he also explained to him the grounds of detention and the documents in the presence of the Assistant Superintendent. Central jail, Tihar, New Delhi. Mr. Qamruddin has further stated that the detenu was quite satisfied and bad understood the grounds "of detention and. the documents. Mr Singh said this was not enough and the explanation of the grounds of detention and the documents was no substitute to the supply of the grounds of detention and the documents in the language when was understood by the detenu. He also said that it was not possible to explain the grounds and the documents to the detenu and the affidavit of Mr. Qamruddin was silent as to how much time he took to explain the grounds and the documents to the detenu. I, however, need not dilate on this point as I have taken the view that Uttam Chand was communicated with the grounds of detention, The first ground of challenge to his detention fails.

(19) Then, as noted above, it was contended by Mr. Singh that the offence under S. 135 of the Customs Act, 1962, alleged to have been committed by Uttam Chand, was non-bailable and on conviction he could be sentenced to imprisonment for a term which could extend to seven years and also with fine. He said that till today Uttam Chand had not filed any application for his release on bail. He said there was no compelling necessity to pass the defection order in the case of Uttam Chand and in support of his submission relied oil a decision of the Supreme Court in Gulab Mehra v. State of U. P. & Ors. . If reference is made to the counter-affidavit filed by respondent No. 2, the detaining authority, he stated that he was aware at the time of passing the detention order that Uttam Chand was in jam but, however, there was every likelihood of his being released on bail as the offence was a bailable one. This obviously is not correct. Mr. Singh had, therefore, strong comments to make and urged that there was complete non- application of mind by the detaining authority. Mr. Misra, learned counsel for the respondents, admitted that the offence was not available one but he said it was immaterial if the detaining authority thought that the offence was bailable. He said that law had come to be settled that in all offences, except where the offence was of murder or which involved punishment of imprisonment for life, the accused was normally released on bail. Mr. Misra referred to the following observation of the Supreme Court in Gurcharan Singh v. State (Delhi Administration) (AIR 1078 Sc 179): "IN other non-bailable cases the Court will exercise its judicial discretion in favor of granting bail subject to sub-section (3) of Section 437, Criminal Procedure Code . if it deems- necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life."

Mr. Misra said that there was every likelihood of Uttam Chand being released on bail as, he said in all non-bailable cases except those punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in favor of ranting bail. Mr.Misra also said that the detaining authority was to be aware, only of the fact, at the time of passing of the order of detention, that the detenu was in jail and that the grounds showed that the detaining authority was so aware, in support of this latter submission he referred to two decisions of the Supreme Court, namely. Kartic Chandra v. State of West Bengal and Devi Lal Mahto v. Slate of Bihar (AIR 19S2 Sc 1548x9). I do not think Mr. Misra is quite correct in his submission that in all non-bailable cases excepting where the offence is of murder or punishable with imprisonment for life, bail is to be granted as a matter of course. Court has always to examine the facts and circumstances of each case. In the present case, Uttam Chand was allegedly found in possession of 100 gold biscuits of ten tolas each bearing foreign markings and material on record further showed that another 200 similar gold biscuits were get removed from his house to the house of Bhuramal Jain. Total value of the gold is over Rs, 92 lacs. It, therefore. could not he presumed that in such a case Uttam Chand was likely to be released on bail. This is apart from the fact that the detaining authority was absolutely wrong in his assumption that the offence was bailable and, therefore, Uttam Chand was going to be released on bail. The question which was posed in Gulab Mehra's case (Supra) would also arise in the present case, and the question is whether there is possibility of the detaining authority to be satisfied that the petitioner Uttam Chand is likely to indulge in the activities of engaging in keeping and concealing smuggled goods as there is no likelihood of his being released from jail custody immediately. The answer obviously is that the detaining authority could not be so satisfied. The case of Uttam Chand is certainly different from that of Vijay Kumar and Raj Kumar, @ Chhotu from whom no recovery was made and from the counter-affidavits filed in their respective writ petitions, it does not appear that the detaining authority, while examining their cases, for detention, acted on the basis that the offence in question was bailable. Thus. in any case, in the case of Uttam Chand, the argument of Mr. Misra has no relevance. This is on account of the fact that the detaining authority thought that the offence in question was bailable and that the petitioner was going to be released on bail. It was, therefore, on this premise that the detaining authority passed orders detaining the petitioner Uttam Chand. Obviously, this was a wrong presumption and showed non-application of mind on the part of the detaining authority.

(20) Mr. Singh, therefore, succeeds in his submission that there was no compelling necessity for the detaining authority to pass the impugned order of detention. This order has, therefore, to be quashed on this ground itself.

(21) In Cr. Writ No. 239 of 1987 of Vijay Kumar Mr. Herjinder Singh raised the following contentions : (1) The petitioner in his representation to the Advisory Board had requested for examination of his witnesses but his witnesses were not examined. He had also sought the assistance of a friend but that assistance was also denied to him. There was thus violation of article 22(4) and 22(5) of the Constitution; The petitioner had made representation through his wife to the Central Government on 11-4-1987 but the representation came to be rejected on 8-5-1987 after delay of 28 days which delay remained unexplained making the detention illegal ; Representation was also made by the petitioner to the detaining authority on 23-4-198" requesting for certain information. The representation was rejected by letter dated 8-5-1987 but the petitioner was informed that he would be supplied the documents asked for which documents were given to him only on 20-5-1987 after the meeting of the Advisory Board ; At the time when the order of detention was made the petitioner was already confined in jail. He had not moved any bail application for his release nor was there any likelihood of his being released from jail custody. There was thus no compelling necessity for the detaining authority lo pass the impugned order of detention. It was a case of double detention ; No reasons have been given in the confirmation order as to why the petitioner was being detained for the maximum period of one year and this also made the detention illegal.

(22) In support of his first submission, Mr. Singh stated that Vijay Kumar appeared before the Advisory Board on 29-4-1987 and he had made a representation earlier dated 27-4-1987 which' was sort through the Superintendent, "Central Jail. In this representation the petitioner had stated that he would examine certain witnesses whose names were mentioned therein and had also stated that these witnesses would, be present outside the Board room. Vijay Kumar had also stated that he would also like to examine his three co-detenus as his witnesses as well. Mr. Singh said that the Advisory Board did inquire from Vijay Kumar whether his witnesses were present and he replied in the affirmative but yet the statements of the witnesses were not recorded. He said these witnesses were material and relevant and they would have proved the allegations made in the grounds of detention as wrong. Mr. Singh said. Vijay Kumar was also not given the assistance of a friend who was also present on the date of hearing. Affidavits of these witnesses and the friend have been brought on record to contend that these were present outside the Board room at the time of hearing. This has been denied by respondents Nos. 1 and 2. In the affidavit of M. Tarun Roy, respondent No 2, he stated that at .die lime of hearing before the Advisory Board Vijay Kumar did not ask for examination of any of his witnesses though he stated so in his representation regarding examination of the witnesses. Vijay Kumar himself explained his case before the Advisor Board and he kept silent as to whether his witnesses were present outside or whether he would like to examine them in rebuttal of the charges made against him. It was also stated by respondent No. 2 that the petitioner did not bring his friend along with him to assist him though again he had stated in his representation that he be permitted the assistance of an advocate or a friend at the time of hearing. The allegations of Vijay Kumar that he was denied his right to examination witnesses or the assistance of a friend have been termed as totally false. It is further stated in the affidavit of respondent No. 2 that the petitioner was permitted by the Advisory . Board to have the assistance of an advocate or a friend at the time of hearing but he did not avail.himself of this facility.

(23) Mr. Singh said it was immaterial that even if the petitioner kept quiet regarding examination of his witnesses when the fact remained that he had made such a prayer in his written representation and witnesses were in fact present outside Hie Board room. In support of his submission he has referred to a decision of the Supreme Court in Surinder Kumar Arora v. Union of India & Ors. (Criminal Appeal No. 55 of 1986, decided on January' 14, 1986) . Reference was also made to a Bench decision of this Court in Vijay Kumar Gujral v. Union of India (Cr. Writ No. 65 of 1986, decided on May 27, 1987) .

(24) Mr. Sarpal, who appeared for respondents Nos. 1 and 2, submitted that no request was made by Vijay Kumar to the Advisory Board at the time of hearing that he wanted the assistance of a next friend and also that the wanted to examine any witness. He pointed out that in the letter dated 20-4-1987 of the Assistant Registrar, Delhi High Court, fixing date of hearing by the Advisory Board, it was specifically mentioned that the detenus were permitted to engage the services of counsels/friends at the time of hearing before the Board if they chose so to do. Mr. Satpal said it was unthinkable that the Advisory Board constituted of a sitting Judge and two retired Judges of this Court would decline the request of Vijay Kumar for assistance by next friend and for examination of his witnesses. He said the decision of the Supreme Court in Surinder Kumar Arora's case (supra) was not applicable to the present, case and he also relied on the Bench decision of this court in Vijay Kumar Gujral's case (supra) in support of his submissions. In surinder Kumar Arora's case the Supreme Court observed that the detenu had, a right to be represented by a friend of his choice and that he had aright to examine witnesses to rebut the allegations made against him as had been held in an earlier decision of the Supreme Court in A.K. Roy v. Union of India . The Supreme Court observed that it did not appear from the record placed before the court that the written request of the detenu which he had presented in person to the Advisory Board to be assisted by his friend who was waiting outside and to examine his witnesses who were also waiting outside. was ever considered by the Advisory Board. The Supreme Court did not approve the approach of the High Court when the High Court had said that there was nothing in the record of the Advisory Board to indicate that the detenu had orally made any request that he wanted his friend to represent his case before the Advisory Board and that the request contained in the written representation was brought to the notice of the Board. The Supreme Court said that the request was made in writing and was made in the representation which was presented by the detenu in person to the Advisory Board at the time of the hearing wherein he had specifically mentioned that his friend and his witnesses were waiting outside. In these circumstances the Supreme Court directed the detenu to be set at liberty. In Vijay Kumar Gujral's case, a distinction, was sought to be made in such a case when the detenu appeared in person or when he was represented by a counsel. The argument of Mr. Satpal was that the representation in the present case was sent by the detenu from jail a day or so earlier to the date of hearing wherein he had said that his witnesses were present and they might be examined in rebuttal of the allegation made against him and further that he be given assistance of his next friend who would be present outside the Board room on the date of hearing. It was, therefore, for the detenu, at the time of healing, to submit to the Advisory Board that his witnesses who 'were present outside the Board room be examined and that he be allowed assistance of his next friend. I referred to the report of the Advisory Board dated " 3-5-1987 during the course of the arguments before me. As noted above, while Vijay Kumar, Raj Kumar and Uttam Chand appeared in person, Bhuramal Jain was represented by his counsel before the Advisory Beard. The Advisory Board did consider the representation of Vijay Kumar and heard him also the co-detenus. I think, Mr. Satpal is right in his submissions. How could Vijay Kumar say in his representation sent a day or so earlier to the Advisory Board meeting that his witnesses and the next friend were present outside the Board room? Vijay Kumar did not present his representation in person at the time of hearing. Whether the witnesses and the next friend of Vijay Kumar Were in fact present outside the Board room is not quite relevant for my purpose. Vijay Kumar has asserted that he did make a request to the Advisory Board for examination of his witnesses and for his being represented by next friend but that request was in effect declined. I am unable to believe the statement. It appears to me that in order to take advantage of the decision of the Supreme Court in Surinder Kumar Arora's case Vijay Kumar has deliberately put up a false plea of his having made a request to the Advisory Board. The Assistant Registrar had already intimated the detenus that they would be permitted to be represented by counsel and /or their next friends and in pursuance thereto Bhuramal Jain was in fact represented by his counsel. If Vijay Kumar has not been represented by his next friend or he has not examined his witnesses it is entirely his fault and he cannot derive any advantage out of this. His first challenge to the order of detention fails.

(25) Mr. Singh then said that in the representation dated 11-4-1987 sent by Vijay Kumar through his wife, he had asides for certain information relating to the date when the screening committee met and the members .comprising the same, the result of investigation and others follow up action taken by the officers of the Dri and the names of the persons from whom gold seized was brought. He also said that various documents relied upon and taken into consideration which were not supplied with the grounds of detention were also asked for and there was delay of 28 days in considering the aforesaid representation. He said each day's delay in considering the representation has to be explained. The rejection of the representation was communicated to Vijay Kumar only on 3-5-1987 much after the date when the Advisory Board met. He said the documents asked for were given to him only on 20-5-1987. Mr. Singh relied upon a Bench decision Of this court in U.P. Aboobacker, v. Union of India (Cr. Writ No. 326 of 1986, decided on 27-3-87) on the question of delay. These arguments were countered by Mr. Satpal. He said the information asked for by Vijay Kumar was not relevant and was not relatable to the grounds of detention and that documents regarding which he made grievance had already been supplied to him along with the grounds of detention. H& said merely because the detaining authority chose to supply another set of these documents would not mean that detention order would become illegal. Vijay Kumar had in fact asked for the documents in his representation dated 23-4-87 to the detaining authority. In para 9 of his representation, he mentioned four documents and with reference to the documents already supplied to him along with the grounds of detention, Mr. Satpal was able to show that all these four documents had in fact been supplied to Vijay Kumar. He cannot, therefore, make any grievance that these documents were supplied to him on 20-5-1987 only. An additional affidavit was filed on behalf of respondents Nos. I and 2 by Mr. S. K. Chaudhary, Under Secretary, Govt. of India, Ministry of Finance, Department of Revenue, New Delhi, to contained that there was no delay in considering the representation dated 11-4-1987 to the Central Government by the wife of Vijay Kumar or even that dated 23rd April, 1987 of Vijay Kumar to the detaining authority. It was stated that the representation of the wife of Vijay Kumar though dated 11-4-1987 was received in the office of the Minister of State for Finance on 21-4-1987 and from that office it was received in the Cofeposa Unit on the following day. Comments of the Cofeposa Unit were called for and these were received from the said Directorate on 27-4-1987 at 5.30 p.m. The Senior Technical Officer dealing with the case received the same on 28-4-1987. No action could be taken on 29-4-1987 as the hearing of the case of Vijay Kumar and the co-detenus was fixed before the Advisory Board on that date. The Senior Technical Officer pat up his note on 30-4-1987 to the detaining authority. The detaining authority was on leave on 1-5-1987 and 2nd and 3rd May 1987 were holidays. Orders here passed by the detaining authority on 4-5-1987 and thereafter the representation was forwarded to the Minister of State for Finance who rejected the same on 6-5-1987. The file was received back in the section on 7-5-1987 and thereafter the memo regarding rejection of the representation was issued on 8-5-1987. The representation of Vijay Kumar to the detaining authority was received in the Department on 27-4-1987 and by the Senior Technical officer on 28-4-1987 It was not attended to on 29-4-1987 because of hearing before the Advisory Board. The Senior Technical Officer put up his note on 30-4-1987 to the detaining authority who rejected the representation on 4-5-1987. The detaining authority was on leave on 1-5-1987 and the following two days were holidays. The file was thereafter sent to the Minister of State for Finance for his consideration on behalf of the Central Govt. as both the representations were dealt together. The rejection of the representation of Vijay Kumar to the detaining authority was issued on 8-5-1987. In the rejoinder affidavit to the affidavit of Mr, Chowdhary, it was stated that the representation dated the 11th April 1987 was sent by registered post on 13-4-1987 and in support thereof a photocopy of the postal receipt was filed. Mr.Singh said there was no explanation as to delay from 11th April 1987 to 21-4-1987 and he further said that. it appeared that the file containing the representation was put up before the Minister concerned only on 6-5-1987 for the first time. He thus said that the principle laid down in U. P. Aboobacker's case (supra) squarely applied in the present case as it was for the Minister himself to call for the comments, if so desired. I considered this argument in detail in the case of Ashok Kumar v. Union of India (Cr. W. No. 262/87, decided on 9-10-1987) . "There also a similar argument was raised and was rejected. In that case relying on the decision of the Supreme Court in Mobinuddin @ Moin Master v. The District Magistrate, Beed & Ors. [1987 (3) Crimes 1] . I observed as under :- "IT would be thus seen that the Supreme Court did not disapprove the calling of comments on the representation of the detenu and on facts held that there was no explanation for the delay of 25 days when the representation was received in the Chief Minister's Secretariat and dealt with by the Chief Minister. This judgment of the Supreme Court was rendered on 28-7-1987."

Thus, whether there is delay in a particular case in considering the representation of the detenu would depend upon the facts and circumstances of that case and no mathematical formula could be laid for the purpose. The representation dated 11-4-1987 did require comments from the sponsoring authority concerned. In Collector, Land Acquisition, Anantnag v. Mst. Katiji & Ors. , the Supreme Court was examining the provisions of Section 5 of the Limitation Act regarding condensation of delay. It said that "every day's delay ? The doctrine must be applied in a rational common sense should be made. "Why not every hour's delay, every second delay? The doctrine must be applied in a national common sense pragmatic manner", so the court observed. The contentions of Vijay Kumar that there has been delay in considering his representations or that he was not supplied with the information asked for or the documents vitiating his detention do not hold good. The second and third contentions, therefore, also fail.

(26) Fourthly, it was contended that it wax a case of double detention. Vijay Kumar already was in Jail and there was no likelihood of his being released from jail, particularly when he had not applied for his release on bail, I may note that one stage Mr. Singh has submitted that there was no recovery from Vijay Kumar and he could not be connected with the seized gold. Mr. Singh referred to a few decisions of the Supreme Court and particularly to Gulab Mehra's case (supra) to contend that the detaining authority did not consider that Vijay Kumar was not likely to indulge in engaging in concealing or keeping smuggled goods as there was no likelihood of his being released from jail custody immediately. I have already considered, to sonic extent, the judgment in Gulab Mehra's case. while examining the case of Uttam Chand. This was a case under the National Security Act 1980 and the Supreme Court was concerned that the affidavit had not been filed by the detaining authority stating whether he had taken into consideration the fact that the detenu was already in judicial custody and on consideration of his past activities if he was subjectively satisfied that if set free or released from jail custody on bail., there was likelihood of the detenu indulging in criminal activities endangering public order. The court observed as under :-- "IN tile instant case there is nothing to show that in consideration of his previous conduct and acts there is a likelihood of the appellant indulging in activities prejudicially to the maintenance of public order if he is set free and/or released from custody."

 On this alone the court held the order of detention to be invalid. This is not the ease before me. Affidavit has been filed by the detaining authority himself. Grounds of detention clearly show that the detaining authority was quite aware that Vijay Kumar was in judicial custody and yet in the circumstances of the case, it was subjectively satisfied that ie be detained, in Poonam Lata v. M. L. Wadhawan & Qnr. , which was a case decided under the Cofeposa Act, the Supreme Court observed as under :-    "IT is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary."  

 This is the case before me as well. In the affidavit the detaining authority has stated that he was aware that Vijay Kumar was in jail, that he was likely to be released on bail at any time. and that there was necessity of passing the detention order. The fourth contention, therefore, also fails.   

 (27) Lastly, it was contended that the order confirming the detention does not give reasons as to why Vijay Kumar was being detained for a maximum period of one year. This question also came to be dealt in the case of Ashok Kumar v. Union of India (Cr. Writ No. 262/87) (supra), wherein it was held that it was not necessary for the Central Government, while confirming the detention, to give reasons for fixing the period of detention. This is how I dealt with the contention in that case.    "IT is true that even where the Advisory Board has reported that there is sufficient cause ior the detention of a person, the appropriate Government may not even confirm the detention order or it may confirm the detention order and continue the detention of the person concerned. S. 10 of the Act prescribes the maximum period of detection to -be one year. When the appropriate Government confirms the detention on the report of the Advisory Board it may not continue the detenuon for the maximum period of one year. For the purpose of confirming the detention order and countation of the detention for a particular period the correct approach appears to be that there should be a real and proper consideration by the appropriate Government for the purpose. It is not necessary for the appropriate Government to pass a detailed order or to communicate to the detenu the reasons-for accepting the report of the Advisory Board and further reasons for fixing the period of. detention. There arc already on record grounds of detention, documents relied upon, representations, if any, of the detenu and the action thereon and the report of the Advisory Board. In fact, after the .report of the Advisory Board slating that there is in its opinion sufficient cause for the detention of the detenu the appropriate Government is required only to confirm the. detention and fix the period of detention and the only requirement is that that is to be in. writing. Can n be said that it makes any difference if the appropriate Government before fixing the period of detention says that (1) "the Central Government/State Government thinks it fit", or (2) "in the facts of the present case", or (3) "in the facts and circumstances of the present case", or even (4) "in the opinion of the Central Government,'State Government" or the like? To my mind, it hardly makes any difference. As noted above, the whole of the record is before the appropriate Government which it has dealt at various stages including, the report of the Advisory Board. Power vests with as high authority as the Central Government or the State Government and when the order is silent in the sense that no reasons have been given while fixing the period of detention, it cannot be said that the appropriate Government mechanically fixed the period of detention." "  

 This contention of Mr. Singh, on behalf of Vijay Kumar therefore, also fails.   

(28) In the case of Raj Kumar @ Chhotu (Cr. W. 283/87), Mr. Herjinder Singh had also various points to urge similar largely to the points urged in the case of Vijay Kumar. It was contended that there could the no presumption raised under S. 123 of the Customs Act 1962 in the case of Raj Kumar as there was nothing on record to show that the gold in question which was removed from the house of Uttam Chand and delivered at the house of Bhuramal" Jain by Raj Kumar was smuggled gold. In this connection reference was made to the definition of "smuggling" given in sub-s of S. 2 of the said Act. The argument was based on account of the fact that nothing was recovered from the possession of Raj Kumar and it was also not being claimed that he was the owner of the gold in question. In support of this submission reliance was placed on a Bench decision of the Bombay High Court in Smt. Nirmalaben Devchandbhai Tandel v. Union of India & Ors. (1986) (1) Crimes 111 (Panaji Bench, Goa). In this case the court observed that there was no material placed before the detaining authority to satisfy that the VCR's seized by the custom authorities were in fact smuggled into the country by the detenu and it was held that this fact vitiated the order of detention. I am afraid this decision is of no help to Raj Kumar. Sufficient material is on record to show that Raj Kumar was aware that, the gold in question, i.e. 200 gold biscuits of 10 tolas each, pore foreign markings, and was smuggled gold and liable to confiscation. It was then contended that the act attributed to Raj Kumar was a solitary act and it could not be said that his detention was necessary in order to prevent him from engaging in transparting, of smuggling goods. There is ample authority for the proposition that even a single act in a given circumstance can lead to the passing of the detention order. The circumstance could be the way the smuggled goods are transported or concealed or the value thereof and the like. It is not necessary to repeat the facts given in the grounds of detention showing the involvement of Raj Kumar in the whole affair leading to recovery of 200 gold biscuits bearing foreign markings and valuing over Rs. 60 lacs His driving the scooter of his employer Vijay Kumar and an his instructions going to the house of Uttam Chand and after not finding him; there breaking open the almirah in the presence of Narinder Kumar, son of Uttam Chand, removing the gold from there and delivering the same to Bhuramal Jain with instructions to keep that in safe custody, his thereafter going to Lajpatrai Market and parking the scooter in the lane and then being found at a house in Bhairon Wall Gali and then recording of his statement and his leading the officers to the house of Bhuramal Jain leading to the recovery of gold would be enough for any reasonable person to come to the subjective satisfaction that Raj Kumar was engaging in transporting smuggled good and the order of detention was necessary to be passed in his case.

(29) Then, it was submitted that it was a case of double detention. At the time when the impugned order was passed. Raj Kumar was in Jail and there was no likelihood of his being released from jail. He had not applied for bail and the fact that there was no necessity to preventively detain Raj Kumar was not kept in mind by the detaining authority and as such it was a case of double detention which vitiated the order of detention. The principles of law 6n this point I have already referred to while discussing the case of Vijay Kumar. Counter-affidavit in this case has been filed by Mr. S. K. Chowdhary, Under Secretary, who has dealt with the file of Raj Kumar. and thus being conversant with the facts of the case, was competent to depose to the same. It has been stated that merely because Raj Kumar had not moved any bail application was no bar to passing the order of detention. The possibility of his applying for bail and being granted bail could not be ruled out. It was further stated that detaming authority was aware that Raj Kumar was in jail custody but his being released on bail on a future date could not be ruled out and as such the detaining authority apprehending that he might be released on bail on a future date, passed the order of detention. It was also stated that it was not necessary that a detenu should have a past history or antecedents and that there was no bar to detain an offender under the Act on the first instance. Grounds of detention do show that the detaining authority was aware of the fact that Raj Kumar was in jail. Applying the principles laid down by the Supreme Court in the judgments referred to above, it could not be said that the order of detention stood vitiated on the ground of double detention as contended by Mr. Singh.

(30) It was then contended that in his representation dated 24-4-1987 to the detaining authority. Raj Kumar had asked for certain information and also copies of certain documents and that these were not supplied to him. The information he asked for related to the constitution of the screening committee and the date when it met and the investigation and other follow up action taken try the officers of Dri and also as regards the persons from where the gold in question was brought. It will be at once seen that the information which Raj Kumar asked for was the same as. Vijay Kumar had asked for. Then four documents are mentioned in the representation copies of which Raj Kumar wanted. In the counter-affidavit filed on behalf of respondents Nos. 1 and 2 it has been stated that the information and particulars required by Raj Kumar and as mentioned above were not relevant in the case and were not supplied to him. As regards documents, it was mentioned that all the relevant documents had already been supplied to Raj Kumar and its was also stated that three of the documents had been specifically given to Raj Kumar along with the grounds' of detention. As regards the fourth document, which Raj Kumar wanted, it was a Panchanama regarding seizure of Maruti Car No. Dbd 6022. It was mentioned that there was no separate panchnama prepared for search and seizure of the Maruti Car and that Maruti car was taken over as relevant to further enquires under the Customs Act 1962 under a running panchnama dated 11-3-1987, a copy of which had been furnished to Raj Kumar. The grievance, therefore, that copies of documents were not, supplied is misplaced. Mr. Single was unable to explain to me as to how the information asked for was necessary for making an effective, and purposeful representation by Raj Kumar. The order of detention, cannot, therefore, be said to have been vitiated on this ground.

(31) It was then submitted that there was a great deal of delay in dealing with the representation of Raj Kumar. The detenu was informed of the rejection of the representation only on 8-5-19887. Again, the argument was that each day's delay had to be explained. In the counter-affidavit it has been stated that the representation was received in the Ministry on 27-4-87 and as some of the points made in the representation required comments, it was sent to the Dri on the same day where it was received on 28-4-1987. The report of the Dri was sent by letter dated 1-5-1987 and as soon as the report was received it was put up to the detaining authority for consideration. The detaining, authority considered and rejected the representation and the same was communicated to Raj Kumar as per memorandum dated 8-5-1987. It was submitted that .2nd and 3rd May 1987 happened to be holidays and the representation in question was considered and disposed of within ten working days and it could not be said that there was any inordinate delay in consideration. of the same. In the circumstances, therefore, I must hold that there has not been any delay in consideration of the representation of the detenu Raj Kumar.

(32) Lastly, it was contended that Raj Kumar had made a representation to the Advisory Board on 29-4-1987 wherein he had specifically requested and had also orally requested before the Advisory Board that other co-detenus, who were present, be examined in rebuttal of the allegations made against him the grounds of detention. Mr. Singh, said that Raj Kumar was also asked by the Advisory Board if his witnesses were present and be answered in affirmative but yet his witnesses were not examined. He said the non-examination of the witnesses present in rebuttal of the allegations made in the grounds by the Advisory Board made the detention illegal being violative of article 22(4) and 22(5) of the Constitution. All this was denied in the counter affidavit and it was stated that Raj Kumar made no oral request to examine his co-detenus during hearing before the Advisory Board. The aforesaid argument of Mr. Singh I have discussed in detail in the case of Vijay Kumar. I am not going to believe the statement of Raj Kumar that he made an oral request before the Advisory Board and in spite of that the Advisory Board did nut examine any of the witnesses. This is just a make-believe story put forward by the detenu to bring his case within the principles laid by the Supreme Court in the case of Surinder Kumar Arora (supra).. There was no specific request as such for examination of the witnesses in the representation filed before the Advisory Board. What Raj Kumar stated in his representation was in para 6 thereof, which is as under : "I have been falsely implicated in this case, I am only working as a servant of Shri Vijay Kumar these persons are being produced' before your honour Along with me you are requested to record the statement. Because these were also detained along with roe, there statement be recorded in rebuttal of the allegations."

The reference to the report of the Advisory . Board would show that Raj Kumar was heard and so also his co-detenus, one of whom was represented by counsel. Again, in the facts of the present case, I do not find that any procedural safeguard has not been observed. This contention muse, therefore, fail.

(33) No other point was urged.

(34) In this view of the matter, the petition of Raj Kumar has also to be dismissed, and the rule discharged. Accordingly, the writ petitions filed by Bhuramal Jain (Criminal Writ No. 211/87) and Uttam Chand (Criminal Writ No. 281/87) are allowed and,the rule made absolute. The writ petitions filed by Vijay Kumar (Criminal Writ No 239/87) and Raj Kumar @ Chhotu (Criminal Writ No. 28/187) are dismissed and rule is discharged in their cases. Bhuramal Jain and Uttam Chand are to be released forthwith unless required to be detained in some other case.