Joginder Singh vs Union Of India And Ors.
1988 Latest Caselaw 327 Del

JUDGMENT

P. K. Bahrj, J.

(1) This criminal writ petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking quotient of detention order dated March 7, 1988, passed by the Joint Secretary to the Government of India, Ministry of Finance. under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short Cofeposa Act') against Jasbir Singh.

(2) Facts leading to the passing of the detention order, in brief, are that the Customs Preventive Staff of the Customs Collectorate, Delhi, on September 17, apprehended one Surinder Kumar, who was carrying two boxes, at the exit gate of inward parcel office. New Delhi Railway Station and it was told by Surinder Kumar that he had been handed over railway receipt by his employer Harvinder Singh and he had taken delivery of the said boxes on the basis of the said railway receipt after signing the fictitious name of Rakesh Kumar. The said boxes were opened in the presence of independent witnesses and the boxes were shown to contain 15,000 pieces of electronic digital disco lady watches of foreign origin of the value of Rs. 3,00,000. As no evidence was furnished regarding import of the said foreign origin wrist watches, the same were seized under Section 110 of the Customs Act. As a follow up action, the premises of Harvinder Singh were searched on the same day and more imported wrist watches were recovered from his shop No. 174-A, New Lajpat Rai Market, Delhi. At the time of the said search, one Charanjit Singh, employee of Harvinder Singh, was present. His statement was recorded and he revealed that he has been working with his brother-in-law Gurinder Singh at shop No. 13, New Lajpat Rai Market, Delhi, in the name and style of M/s. Jeet Traders and shop No. 174-A, New Lajpat Rai Market, belongs to Harvinder Singh, who is working there in the name and style of M/s. Ashu Traders and Harvinder Singh is the elder brother of Gurinder Singh. He has also stated that Harvinder Singh was dealing in the business of smuggled wrist watches of foreign origin and the petitioner, Ranjan Kumar and Surinder Kumar were his employees. Then, he' furnished the address of those persons. The residential premises No. BH-116, Shalimar Bagh. of Harvinder Singh was searched but nothing was recovered from that house. Another house of Harvinder Singh bearing No. 15-BB. Block LIG. Dda Flats, Shalimar Bach. was searched on September 18, 1987 and in the presence of the present petitioner and another employee of Harvinder Singh, namely, Ranjan Kumar, electronic wrist watches of the value of Rs.65.840- were recovered and no evidence was produced showing their import and thus, they were also seized under Section 110 of the Customs Act!. On September 18, 1987, on the basis of the disclosure statement of Surinder Kumar, the petitioner was apprehended carrying one box at New Delhi Railway Station. Plat Form No. 6 and that box was found to contain 5,000 pieces of electronic digital disco lady wrist watches of the value of Rs. 1,60,0001- which were also seized under Section 110 of the Custom Act. Surinder Kumar in his statement under Section 108 of the Customs Act deposed that hee was engaged by Harvinder Singh and was given the railway receipt and be knew the contents of the said boxes which were got released from the Railway Station and earlier also he had brought such type of boxes containing the foreign origin wrist watches from New Delhi Railway Station at the instance of Harvinder Singh and those goods used to be brought to a hotel near Novelty Cinema arid he, Ranjan Kumar and Jasbir Singh used to make packets of the said wrist watches for further delivery of the said packets to the customers as directed by Harvinder Singh and it was usually the petitioner who used to visit Bombay for bringing the said foreign origin wrist, watches by booking the same from Bombay and the delivery used to be obtained from the Railway Station by signing fake names and the hotel room used to be booked in the name of Ranjan. Jasbir Singh also allegedly made a statement on September 18, 1987, under Section 108 of the Customs Act admitting all these facts. He also made a statement that earlier Harvinder Singh had a shop at 303, Rajindra Jaina Market, Chandni Chowk, Delhi and the said shop was closed 20-25 days earlier and new business in the name of M/s Ashu Traders was started at shop No. 174-A, New Lajpat Rai Market and they were working there and running the business of sale and purchase of smuggled wrist watches and they used to pack the watches as per requirements of the customers and they used to be delivered to different customers on directions of Harvinder Singh.

(3) Statement of the petitioner under Section 108 of the Customs Act was also recorded in which all those incriminating facts were admitted by him. His premises at Bombay was also searched but nothing incriminating was found. They were all arrested and produced before the Magistrate on September 19, 1987. Surinder Singh got bail on medical ground and also Jasbir Singh was granted bail on October 8, 1987. Statement of Gurinder Singh was also recorded and so also of Harvinder Singh. Harvinder Singh was arrested on December 9, 1987, but he got the bail on December 17 1987

(4) It is also the cafe of the prosecution that on February 17, 1986, 4,000 pieces of wrist watches of the value of Rs. 81,6001- were seized from shop No. 303, Rajindra Jaina Market, Chandni Chowk, which was owned by Harvinder Singh and his brother Gurinder Singh and Ranjan Kumar and Jasibir Singh were also involved in that case and they were arrested and released on bail later on.

(5) Various grounds have been pleaded in the writ petition challenging the detention order but at the time of arguments counsel for the petitioner confined the challenge only on the following grounds : firstly, that there is no proximity between the alleged prejudicial activity and the passing of the order of the detention as the order of detention is passed belatedly, so the same is bad; secondly, that the purpose of detention mentioned the order is just reproduction of the language of the Cofeposa Act and the same shows that the detaining authority has not applied its mind; thirdly, it is pleaded that the list of documents, which was supplied to the detenu, shows that the same is the list of documents attached with the proposal in respect of other persons including the petitioner and the defaming authority did not care to apply its mind and show only the list of documents pertaining to the petitioner- Fourthly, the grounds of detention supply to the petitioner are not signed by the detaining authority and as such there is no proper service of order of detention on the petitioner. Lastly, that the copy of the document at page 155 in the language known to the petitioner i.e. Hindi language, has been supplied to the petitioner which vitiates the detention order.

(6) I will deal with these points in seriatim. It is argued that the detention order has been passed after about six months of the date of occurrence and thus, the detention order is bad. This argument is now not available in view of the ratio laid down in Rajendra Kumar Natvarlal Shah v State of Gujarat & Others , . So, this ground negatived.

(7) The order of detention, copy of which is annexure 'A', shows that the detention order has been passed in order to prevent the petitioner from engaging in transporting smuggled goods. A. perusal of the facts mentioned in the grounds of detention makes it clear that this petitioner has been transporting the contraband goods from one place to another. So, it cannot be held that the order of detention is, in any manner, vague. So, I do not find any merit in this ground.

(8) The mere fact that in the heading of the list of documents it is mentioned that the said list of documents attached with the proposal ill respect of different detenus including the petitioner does not mean that there is no application of mind by the detaining authority. After all, the case of the petitioner and the other coetaneous based on same facts was being processed and the list of documents pertained to all of them including the petitioner. Thus, the detailing authority look into consideration all these documents contained in this particular list. So, it cannot be argued that the detaining authority has not applied is mind before passing the detention order.

(9) Counsel for the petitioner has shown to this Court the actual detention order and the grounds of detention served on the petitioner and has pointed out that only last page of the order is signed by the detaining authority which is a photo copy while the other pages are typed pages and he has argued that this shows non-application of mind by the detaining authority. I find no merit in this contention. After all, the detaining authority was to pass detention orders in respect of many persons involved in the occurrence in question and there is nothing wrong in getting the detention orders prepared and typed and then last page is prepared as a photo copy in those cases and signed by the detaining authority. It does not mean that the detaining authority did not apply its mind to the facts before passing the detention order.

(10) It has been argued by the learned counsel for the petitioner that Hindi translation to the document appearing at page 155 of the list of documents supplied Along with the grounds of detention was not supplied to the petitioner and thus, the petitioner was prevented from making any effective representation. It is the requirement of law, it is argued, that all documents on which reliance is placed by the detaining authority, for passing the detention order should have been supplied to the detenu and the failure of the detaining authority to supply any copy of document in the language known to the petitioner amounts to denial of opportunity to the petitioner to make effective representation. It is admitted before me that document at page 155 of the list of documents supplied to the petitioner pertained to a medical certificate of Gurinder Singh which was of latter date from the date of the incidents showing that he had undergone some appendices operation. It was totally an innocuous document and was annexure to some application of Gurinder Singh. It is true that in the order of detention it is mentioned that the order of detention is based on the documents of which copies are supplied to the petitioner but the question which arises for decision is whether non-supply. of a Hindi translation of such an innocuous and irrelevant document would vitiate the detention order or not. It is settled law that it is the duty of the detaining authority to supply such material and documents on which the detention order is based pari passu grounds of detention. Dealing with such a question this Court in the case of Madhu Khanna v. Union of India & Others, Criminal Writ Petition No. 146187, decided on September 25, 1987x2) has laid down that only the documents and material which are inculpatory and incriminating should be considered as the foundation for passing the detention order and only such documents and material are liable to be supplied to the detenu. The document in question is not a document of such a nature which could be the basis for passing the detention order. In this context, I may refer to the observations made by the Supreme Court in Prakash Chandra v. Commissioner and Secretary, Govt. of Kerala, "There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed." It was further observed : "The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub-section (3) of Section 3 of Cofeposa Act, therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions. While the expression "grounds" for that matters includes not only conclusions of fact but also all the "basic facts" on which those conclusions were founded, they are different from subsidiary facts or further particulars or the basic facts."

I may emphasise that in the grounds of detention no reference has been made specifically to this particular document So, the detention order, as a matter of fact, is not based on this particular document. The detention order, in my view, cannot be. set aside for non-supply of Hindi translation of the said medical certificate of Gurinder Singh which is not a document which could be, by any stretch of reasoning, called as a material or incriminating document for passing the detention order. So, I negative this particular ground also.

(11) Counsel for the petitioner also tried to argue that there is delay of six months in passing the detention order. This argument is now not available in view of the ratio laid down in Rajendrakumar Natvarlal Shah v. State of Gujarat & Others, . No other point has been agreed before me. So, I hold that there is no merit in this writ petition.

(12) I hereby dismiss this writ petition and discharge the - rule.