Naresh Kumar Seth vs Union Of India And Ors.
1991 Latest Caselaw 580 Del

JUDGMENT

V.B. Bansal, J.

(1) Naresh Kumar Seth has filed this writ petition invoking the Jurisdiction under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure praying that the detention order dated 6th March, 1981 be quashed and he may be ordered to be released forthwith.

(2) In exercise of the powers under Sec. 3(1) of the Conservation of Foreign Exchange & prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the Act,. Mahendra Prasad, Joint Secretary to the Govt. of India, specially empowered officer passed an order dated 6th March, 1991 for the detention of Naresh Kumar Seth s/o Shri Satpal r/o B-242, Derawal Nagar, Delhi with a view to preventing him from engaging in keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing smuggled goods.

(3) Briefly stated facts leading to the filing of this writ petition are that officers of the Directorate of Revenue Intelligence were keeping surveillance on premises No. B-242, Derawal Nagar, New Delhi on the basis of specific information that huge quantity of gold bars of foreign origin were stored in this premises. On 27th February, 1991 the officers of the said Directorate found one person throwing a packet into the gully situated at the rear side of the premises from its terrace which on checking was found containing 10 gold bars of foreign origin of 10 tolas each. Therefore on search of the said premises 120 more gold bars of foreign origin of 10 tolas each were recovered from the store room of the second floor of the premises. The petitioner was unable to provide any documentary proof or otherwise with regard to licit import, acquisition or possession of the said 130 gold bars. On further search of the gully 10 more gold bars of foreign origin were recovered. All the 140 bars of gold of foreign origin were seized by the officers of the Directorate of Revenue Intelligence after preparing panchnama.

(4) Naresh Kumar Seth was examined on 28th February, 1991 when he made a voluntary statement recorded under Sec. 108 of the Customs Act in which it was, inter alia, stated by him that the said 140 gold bars of foreign origin were given to him by one Sardarji through one of his men on Ring Road at Rohini which were to be sold by him at Delhi market on a commission of Rs. 100/. for each bar and that after the sale of the gold the amount was to be sent to the said Sardarji through his representative which information was to be given to him on his two telephone numbers.

(5) The petitioner was arrested on 28th February 1991 and when produced In Court the same day he was remanded to judicial custody till 14th March, 1991.

(6) The order of detention dated 6th March, 1991 was served upon the petitioner on the same day in the Central Jail where the petitioner was lodged. Grounds of detention and the documents relied upon by the prosecution had also been supplied to the petitioner required by law.

(7) Feeling aggrieved from the said order of detention the present writ petition has been filed.

(8) I have heard Shri R.M. Bagai learned Counsel for the petitioner and Shri Jagdev Singh learned Counsel for the respondent.. I have also gone through the records.

(9) The petitioner has raised a number of pleas in support of his petition for quashing the order of detention. Learned Counsel for the petitioner has, however, restricted his submissions to two submissions, namely, absence of compelling necessity to pass the detention order and non-placing of material documents before the detaining authority thereby affecting its subjective satisfaction for passing the impugned order.

(10) Learned Counsel for the petitioner has submitted that after his arrest on 28th February, 1991 the petitioner was remanded to judicial custody till 14th March, 1991 and that the petitioner had not moved any application for bail till 6th March, 1991, the day on which the detention order was passed and served on the petitioner. He has also submitted that no application for bail, in fact, has been moved by the petitioner till date. These facts with regard to the non-filing of any application for bail by the petitioner are not controverter by learned Counsel for the respondent.

(11) The short question now for consideration is as to whether there was any material available with the detaining authority for its subjective satisfaction to pass the impugned order.

(12) It would be expedient at this stage to refer to the relevant para from the grounds of detention which reads as under : "Im aware that you are in judicial custody. The possibility of filing application for bail and getting enlarged on bail cannot be ruled out. Once you are on bail, keeping in view of your role in this case and your antecedents as mentioned in the grounds of detention, I am satisfied that unless prevented you are likely to continue your smuggling activities."

(13) Submission of learned Counsel for the respondents has been that the detaining authority was fully aware of the petitioner having not moved any application for bail though in custody and still he was of the view that the petitioner could be released on bail and so it cannot be said that there was no material with the detaining authority. I have given my thoughtful consideration to this submission but I am not inclined to agree with the same.

(14) As already referred to the period of first remand was not over and it could not be said that the recovery effected from the petitioner was insignificant on account of which be could claim bail as of right or even on merits. The detaining authority, in fact, has to be satisfied that the detenu is likely to be released from the custody in near future and taking into account the nature of the antecedent and the activities of the detenu it is likely that after his release from the custody he would indulge in prejudicial activities and that it is necessary to detain him so as to prevent him from engaging in such activities. There have to be compelling reasons so as to justify the detention under Cofeposa Act of a person in spite of he still being in custody in a criminal case. Reference in this regard can be made to the case Shri Dharmendra Suganchand Chelawat v. Union of India and Others, Judgments today 1990 (1) S.C. 184.

(15) Learned Counsel for the respondent has submitted that his plea that there was material for subjective satisfaction of the detaining authority finds support from the case Sanjeev Kumar Aggarwal v. Union of India & Others, Jt 1990 (2) SC. 62. I am afraid this judgment does not help the respondent. In the said case in spite of the fact that no bail application was moved by the detenu his two co-accused in the criminal case had already moved application for bail and it was in these circumstances that the detaining authority came to the subjective conclusion that the said detenu could also be released from jail. In the instant case the petitioner was alone and he was on first judicial remand of 15 days and there was no material even for coming to the conclusion that the Court would not have given further remand to the petitioner. This has been the consistent view of this Court. Reference in this regard can be made to the cases Naresh Kakkar v. Administrator of Delhi and Ors., decided on 8th August, 1989; Nirmal Chand v. Union of India and Others, Criminal Writ No. 316 of 1991 decided on 16th July, 1991, Nazir Ahmed Suleman Mansuri v.Union of India & Others, Criminal Writ No. 769 of 1989 and Dhondup Lama v. Union of India & Others, 1991 (1) Crimes 571 and Narendra Sogani v. Union of India and Others, Criminal Writ No. 402 of 1990 decided on 15th April, 1991. It is, thus, clear that there was no compelling reason for the detaining authority to pass the detention order when the petitioner was already in custody and on this account the detention order is liable to be quashed.

(16) Learned Counsel for the petitioner has submitted that there have been suppression of material documents which have not been placed before the detaining authority for coming to the subjective satisfaction of passing the order of detention on account of which detention order cannot be sustained. He has further submitted that the petitioner had filed income tax assessment order and the challan showing advance payment of tax filed by the petitioner in the Court of the Addl. Chief Metropolitan Magistrate alone with an application for the grant of B-Class in jail were not placed before the detaining authority though application for the grant of B-Class was before the detaining authority.

(17) Learned Counsel for the respondent has, however, submitted that these two documents were not material and it cannot be said that the petitioner was in any way prejudiced on account of non-placing of these documents. It has not been disputed by learned Counsel for the respondent that these documents were not placed before the detaining authority. The question for consideration is as to what is the effect of non-placing of these documents. The case against the petitioner as mentioned in his confessional statement was that he resorted to this activity on account of financial constraint. Learned Counsel for the petitioner has submitted that these documents were relevant to indicate that the petitioner had no financial constraint and he was an income tax payee. The question as to what would have been the result if these documents had also been placed before the detaining authority is not material. All that has to be considered is as to whether this was the relevant material to be placed before the detaining authority and my answer to this question is in the positive. The detaining authority could still have come to the conclusion that it was a case for the detention of the petitioner but certainly these were material documents and ought to have been placed before the detaining authority. It would at this stage be convenient to refer to the case Ayya alias Ayub v. The State of Uttar Pradesh and Another, 1989 (1) Crimes 8. In the said case, the case against the petitioner was that he had participated in an incident at 9.10 P.M. and was arrested only at 10.00 A.M. next day while the case of the petitioner was that he had been taken into custody at 9.00 P.M. and, thus, could not participate in the incident as alleged. It was also alleged that a telegram was sent at 12.30 mid night on 18th February, 1988 in this regard. The said telegram was not placed before the detaining authority. It was held "there would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality."

(18) I am clearly of the view that the documents referred to above in the given circumstances were material documents which could weigh in the mind of the detaining authority in considering whether the detention order should or should not be made. The non-placement of the material documents in these circumstances affects the subjective satisfaction resulting in non-application of mind and, thus, the detention order is liable to be quashed on this ground also.

(19) In view of my above discussion the writ petition is allowed. Impugned order dated 6th March, 1991 is quashed. Petitioner is ordered to be released forthwith, if not required in any other case.