Ashok Gupta vs Union Of India And Ors.
1988 Latest Caselaw 155 Del

JUDGMENT

Mahinder Narain, J.

(1) This is a petition under Article 226 of the Constitution of India, filed by Ashok Gupta, for issuance of a writ of Habeas Corpus and for the purpose of quashing the order of detention No. F. No. 673/81/ 88-CUS-VIII dated 8-3-88 and to set at liberty the petitioner at liberty forthwith.

(2) The petitioner states that he is a B.Sc., that he started his own concern by the name of 'Arena Electronics' at his residence, and was carrying on the business as Indenting Agents i.e. Diplomatic Mail Order Busines:-.

(3) The grounds on which the order of detention has been passed, are detailed in Annexure 'A' collectively,

(4) According tothe grounds of detention, there was a person called Kumar Sambhav, who had gone for collection of a consignment that had been booked from Hongkong in the name of Mr. Sameuddin of Afghan Embassy. This consignment contained the articles which were not covered by the documents in connection with the import by the Diplomat.

(5) Various grounds have been taken in this writ petition for setting aside the detention. Only two have however. been urged before me.

(6) One ground that has been urged is that some incriminating documents', which arc stated in the grounds of detention, to have been found at the time of search of the residential premises of the petitioner on 16th February. 1988, have not been supplied to the detenu, thus depriving him of an opportunity to make an effective representation against his detention.

(7) I am satisfied, on what has been argued by Mr. Rajinder Dutt, counsel for the respondents, that the alleged "incriminating documents", that are mentioned in the grounds of detention, and which were found on 16th February. 1988, were, in fact, those documents which were mentioned in the Panchnama and they figure in the list of documents that had been supplied to the detenu, and this attack on the detention of the petitioner, has no force.

(8) The other ground which has been urged by the petitioner is that the detaining authority has relied upon a "visiting card" of Kumar Sambhav, which allegedly indicated a connection between the detenu and Kumar Sambhav. What is stated in the grounds of detention is as follows:-- "VISITING card of Kumar Sambhav indicating him as Sales Executive of Arena Electronics and your visiting card indicating you as Director of Arena Electronics give support to Statement of Mr. Samcuddin, the Diplomat that both represented Arena Electronics".

(9) Mr. Sen contends that it is this visiting card which establishes a connection between the detenu, and Kumar Sambhav and it is on the basis of the visiting card that the detaining authority is satisfied that such a connection exists between the detenu and Kumar Sambhav, and that they are working with each other in Arena Electronics. It is only if and when this connection is established that the detenu will be linked with the goods that were sought to be smuggled in the country, i.e. the goods which were sought to be cleared by Kumar Sambhav. Admittedly, the detenu was not present at the time when clearance of the goods was sought to be effected.

(10) Mr. Sen states that this visiting card is a vital document which establishes the connection between Kumar Sambhav and the detenu, and as such ought to have been supplied to the detenu for the purposes of enabling him to makes an effective representation. Law on the subject is quite clear and settled. All the documents, which are relied upon by the detaining authority have to be supplied to the detenu. In fact, most of the documents, which have been relied upon. by the detaining authority, have been supplied, with the exception of this visiting card.

(11) It has not been contended by Mr. Rajinder Dutt, and in my view rightly, that the visiting card did not exist. In view of the fact that it is mentioned in the grounds of detention that such a contention could not have been raised. A visiting card may be small in size, but it is nonetheless a document. Visiting cards of an organisation arc made distinctive by its print, provided they are genuine, and similarity of paper, print-faces, logo, and size will establish that two persons work in the same organisation. Thus a "visiting card" does establish a link between persons and a particular organisation. In this case, the organisation, which is alleged to be the link between the detenu and Kumar Sambhav is Arena Electronics, and it is the visiting card which according to the grounds of detention establishes the connection between Kumar Sambhav and the detenu, and the detaining Authority relies upon it.

(12) Mr. Sen refers to a judgment reported as Kamla Kanhaiyalal Khushalani v. State of Maharashtra and another which is to the effect that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu and failure to supply such material will prevent a detenu from making an effective representation against that order. This judgment, in my view, completely covers this case. Visiting card, in my view, is the document which form an integral part of the grounds of detention, and it is materially relied upon by the detaining Authority, and taken into account by the detaining Authority while arriving at his satisfaction.

(13) I do not accept what is stated in the counter-affidavit of the detaining Authority /respondents at page 11, in para graph 'G'. What has been stated in the counter-affidavit of the detaining Authority is clearly an after thought, as the detaining Authority was well aware of the law settled by the Supreme Court that any document, which is an integral part of the grounds of detention, must be supplied to the detenu, and failure to supply the same will be fatal in view of Kamla Kanhaiyalal Khuslialani's case (supra).

(14) Mr. Rajinder Dutt refers to the judgments reported as Mst. L. M. S. Ummu Saleema v. B. B. Gujaral and another ; Shiv Rattan Makim v. Union of India & others [AIR (1986) 1 Supreme Court Cases 404](3); Raj Kumar Singh v. State of Bihar & others [AIR (1986) 4 Supreme Court Cases 407 at 414] (4) and State of Gujarat v. Sunil Fulchand Shah and another .

(15) In the judgment cited as , it has been held by the Supreme Court that a particular piece of evidence which has not impressed the detaining Authority need not be supplied to the detenu. In this case more than three lines have been written in the grounds of detention at page 50 for the purposes of showing the connection between Kumar Sambhav, the detenu, and Arena Electronics. The connection is based significantly on the visiting card. This judgment, therefore, has no application to the present case.

(16) The judgment reported as is for the proposition that non supply of documents which are referred to casually and in passing manner and the documents which are not relied upon, is not fatal to the order of detention. In my view, it is clear from the grounds of detention and the visiting card has not been relied upon by the detaining Authority in a casual or "passing" manner.

(17) The judgment. Air 1986 (4) Supreme Court Cases 407 at page 414 is cited only for the proposition that the court cannot substitute its decision, if the executive authority or the appropriate authority acts on proper material and reasonably and rationally comes to that conclusion even though (such) a conclusion (be one) with which the court might not be in agreement. Indeed this proposition is well settled.

(18) I am not substituting my decision for that of detaining Authority. What I hold is that a procedural safeguard, which has been termed as essential by the Supreme Court in (supra) that all material documents relied upon must be supplied, has not been acted upon in the instant case, namely, the document which is materially relied upon by the detaining Authority has not been supplied to the detenu, thereby making it impossible for the detenu to make an effective representation against the detention order.

(19) The judgment reported as Air (1986) 1 Supreme Court Cases 404 (supra) is for the proposition that even from a single instance of smuggling of gold, it can be inferred that a particular individual is a member of a smuggling syndicate. To my mind, this judgment has no application to the facts and the circumstances of the present case.

(20) Mr. Rajinder Dutt has also referred to a case reported as Smt. Asha Keshavrao Bhosale v. Union of India & another which is a case relating to smuggling activities which were carried on from the residence of the Governor at Bombay. In that judgment at page 287 it is observed by the Supreme Court that a statement of one of the persons may provide a link between the detenu and the receipt of the contraband articles and it is up to the detaining Authority to accept such a statement. The Court went on to hold that this satisfaction under the law is subjective and it is not for the Court to test the adequacy of the material on which the satisfaction is reached.

(21) In the instant case, the link is not a statement but the visiting card. This judgment has, therefore, no application on the facts and circumstances of the present case. The Afghan Diplomat's statement is referred to by the detaining Authority, but in my view the real link relied upon by I he detaining Authority is the visiting card, the nature of visiting card being what has been referred to by me hereabove.

(22) For the aforesaid reasons, there being a procedural infirmity in non-supply of a material document in the form of the visiting card, the detenu has been prevented from making an effective representation. This petition, therefore, succeeds, and the detenue is entitled to be set at liberty forthwith.

(23) The petitioner be released forthwith.