J.P. Gupta vs Union Of India And Ors.
1995 Latest Caselaw 166 Del

JUDGMENT

Vijender Jain, J.

(1) The detention order was served on the petitioner on 12.5.94 passed by Shri Mahendera Prasad, Joint Secretary to the Government of India, Ministry of Finance, dated 2.5.1994. This was served on the petitioner who was in judicial custody in pursuant to Kalandara under Sections 107/151 of the Code of Criminal Procedure (hereinafter referred to as the Code) and also under judicial custody under criminal complaint titled 'Enforcement Vs. J.P.Gupta' under Sec. 56 of Foreign Exchange Regulations Act (for short `FERA').

(2) The detenu was served with the grounds of detention on 5.5.94 along with huge bunches of documents running into 1760 pages. It is the case of the petitioner that on the basis of the arrest of two persons and recovery of amount of Rs.50 lacs, the office and residential premises of the detenu were searched by the Enforcement Officials but nothing incriminating was found there from. A complaint was filed under Sec. 56 of Fera on 29.10.93 when the petitioner did not appear before the Fera Authorities for the prosecution of the petitioner on which process was issued by the Acmm against the petitioner. According to the petitioner he was never properly served and apprehending his false implication in the case, he preferred two petitions before the High Court of Calcutta for grant of relief restraining the respondents from detaining the petitioner under the provisions of FERA. After receiving the process from the court of Acmm in respect of the complaint under Sec. 56 of the Fera the petitioner filed an application under Sec. 242(2) Criminal Procedure Code for his discharge. Acmm also passed the order for the presence of the petitioner. Petitioner proceeded from Calcutta to Delhi but according to the averments made by him in the petition on 29.3.94 he was again apprehended under Sec.107/151 of the Code and was remanded to judicial custody from the court of Executive Magistrate, Seelampur. There after the wife of the petitioner informed, by way of filing an application before the Acmm, that the petitioner is confined to judicial custody with the request that if any statement has to be recorded by the respondents they can do so in jail or on petitioner's production before the court of learned ACMM. It transpired that the learned Acmm directed the respondents-officials to record the statement of the detenu in jail itself where his statement was recorded.

(3) On the application of the petitioner under Sec. 245(2) of the Code for the discharge of the detenu, proceedings under Sec. 56 of Fera were quashed. However, the learned Acmm passed the order that the complaint will be treated under Sec. 228 Indian Penal Code against which a revision has been filed by the petitioner.

(4) MR.KHAN learned counsel for the petitioner has argued that the detention order of one page was served on the petitioner when he was in judicial custody in Kalandara under Sec.107/151 of the Code as well as under judicial custody in a criminal complaint under Sec. 56 of the FERA.

(5) Learned counsel for the petitioner has argued that certain documents which were relevant were not placed before the detaining authority at the time of obtaining the detention order dated 2.5.94 and in the absence of illegible documents and relevant documents it was difficult for the detenu to make an effective representation before the detaining authority. Learned counsel for the petitioner has also argued that as the detenu was in judicial custody at the time when detention order was passed it amounts to double detention. Another ground taken by the learned counsel for the petitioner is that the retraction has not been considered by the detaining authority as well as the complaint lodged by the wife and the material was not placed before the detaining authority otherwise detaining authority would not have passed the detention order. The detenu mentioned for supply of these documents in Clause 13 of the application dated 30.5.94 and in the application dated 18.7.94 but these documents were not placed before the detaining authority.

(6) Mr. Khan has also argued that the detention order was passed on 2.5.94 whereas the alleged recovery of Rs.50 lacs was made on 12.9.93 and there was a considerable delay of 8 months in passing the detention order and there is no explanation for this delay in the grounds of detention supplied to the detenu and there is no material allegations that after 12.9.93 the detenu was indulging in any prejudicial activities. The learned counsel for the petitioner has also argued that relevant documents, i.e. affidavit of Surnam Singh, Deep Chand, agreement between S.Tarsem Singh Chacha and K.S.Kaushal in support of currency worth Rs.50 lacs, the telegram dated 29.10.93 by the wife of the petitioner and telegram dated 8.5.94 addressed to the Finance Minister, copy of the Kalandara vide Dd No.20A were not placed before the detaining authority otherwise the detaining authority would not have conceded the demand of the Sponsoring Authority for detaining the petitioner under COFEPOSA.

(7) Mr. Khan has further contended that the documents which are not relevant and germane to form the subjective satisfaction of the detaining authority have been supplied to the detenu on which the subjective satisfaction of the detaining authority is based which shows complete non-application of mind of the detaining authority. Certain documents pertaining to Tarsem Singh who has claimed Rs.50 lacs seized by the Enforcement Directorate belonged to him for which he filed a petition before the High Court of Punjab & Haryana at Chandigarh have not been considered. Had the detaining authority considered the documents, no detention order could have been passed by the detaining authority. Mr.Khan has further contended that the relevant documents, statement of account of the firm Bmr Enterprises belonging to the wife of the petitioner and also other firms with which the money transactions had taken place which are part and parcel to the grounds and the documents relied upon by the detaining authority if studied carefully would show that transactions of the said firm were through cheques and showed that money transactions have been properly explained. No case of Havala transaction connecting the detenu was made and the subjective satisfaction of the detaining authority was totally biased, bad in law and made the detention illegal.

(8) Mr. Khan has vehemently argued that on 3.5.94 one day after the detention order was passed against the detenu, the detenu appeared before the court of Acmm and on the query by the court the following statement was made before court which is self-explanatory :- @SUBPARA = "Now Shri S.P.Ahluwalia, P.P. stated that till the examination of all the accused is completed it is not possible to say whether he is an accused in the main case or not. The Pp consulted Shri B.B.Hazara, Enforcement Officer and states that the accused J.P.Gupta is an accused in the main case but it has not yet been decided when he is to be arrested."

(9) On the basis of this statement of the officer of Directorate of Enforcement the learned counsel for the petitioner has argued that the status of the petitioner and his involvement in the main case till date was not known to the department and as such the order passed on 2.5.1994 to detain him is perverse and illegal. He has also invited my attention to the counter affidavit filed on behalf of the respondent which reads as follows :- .ls1 "IN reply to para 24 it is submitted that there was no confusion in the mind of the officer regarding the status of the petitioner and the factual position was conveyed to the Hon'ble Court."

(10) The learned counsel for the petitioner has also in support of his arguments stated that the order of detention was made 8 months after the incident and delay having not been properly explained itself vitiates the detention order. He has cited ÿRamveer Jatav Vs. State of U.P. and others 1987 Cr.L.J. 321, in sup- port of his contention that the detention order was served on the petitioner while he was already in judicial custody and there was no possibility of his imminent release or likelihood of his release from judicial custody and in the absence of imminent likelihood of his release from the custody the detention order is bad as preventive detention should not be resorted in such cases. In support of his arguments that when the petitioner was already in judicial custody clamping order of detention amounts to double detention the learned counsel for the petitioner has cited Vijay Kumar Vs.State of J. & K. and Others ; Binod Singh Vs. District Magistrate, Dhanbad , N.Meera Rani Vs. Govt. of Tamil Nadu and another 1989 Cr.L.J. 2190; Umesh Bhatia Vs. Union of India & Ors. 1994 C.C.Cases 314 and Mohd. Razak & Mohd.Sadiq Vs.Mahendra Prasad & Anr 1991 Jcc 559. The learned counsel for the petitioner has also assailed the detention order on the ground that the illegible and incomplete material was supplied to the detenu which was supplied to the detenu on 30.6.94. However, representation in this regard was made by the petitioner on 30.5.94 and that was to be supplied prior to the hearing before the Central Advisory Board and non- supply of material affected the right of the detenu to make an effective representation before the Advisory Board. It was also contended that the documents were more illegible and all the documents were not supplied to the petitioner for which the petitioner again represented on 18.7.94 by sending an application to the Sponsoring Authority and detaining authority but in spite of receiving the said representation his request was rejected. Learned counsel for the petitioner has invited attention of this Court to some of the illegible documents at pages 185-186 of the petition which is the representation of the petitioner for supply of legible documents from 185 to 192 dated 30.5.94 and supply of relevant documents not supplied to the petitioner-detenu and supply of documents in Gurmukhi and asking the authorities to know whether the English Translation of the Gurmukhi was true and correct translation or not. In the said representation it has also been stated by the petitioner that some of the relevant documents were not placed before the detaining authority at page 128 of the writ petition,i.e. letter dated 18.7.94 sent by the petitioner to the detaining authority inter alia stating that the documents received by the detenu on 30.6.94 were illegible as well as certain other queries regarding supply of other relevant documents. The said representation dated 18.7.94 was rejected by the Central Government. Mr.Khan has argued that non-supply of relevant documents and non-supply of legible documents to the detenu and rejection of the representation of the detenu on 4.8.94 has precluded the petitioner from making effective representation on this ground alone the detention order be quashed.

(11) Mr. Khan has further contended that irrelevant documents were taken into consideration by the detaining authority for its subjective satisfaction it shows that the detaining authority has not applied its mind to the facts and circumstances of the case. In support of his contention he has cited Sita Ram Somani Vs. State of Rajasthan & Others . Mr.Khan has further argued that the recovery of Rs.50 lacs from Deep Chand, Surnam and Rajinder was made on 12.9.93 and detention order was passed on 2.5.94 and no explanation for this delay has been given by the respondent in the counter-affidavit and on this ground alone the detention orders are liable to be quashed. In support of his submissions he has cited Ram Dass Chauhan Vs. The Administrator, Union Territory of Delhi and Others 1987 Cr.L.J.1223, Smt.Gurmeet Kaur Vs. Union of India & Ors. 1993 Jcc 106, Md.Shahbuddin Vs. The District Magistrate 24 Parganas and Others. and Surinder Kumar Vs. Union of India and Another 1993 Jcc 414. He has also argued that statement of co-accused was taken for arriving at the subjective satisfaction of the detaining authority which was also bad in law. Mr.Khan has also argued that relevant documents were not supplied to the detenu and were not placed before the detaining authority. Mr.Khan has also taken objection to the filing of the counter-affidavit of Mr.K.L.Verma instead of Mr.Mahendera Prasad under whose signatures the detention order were served and has argued that the affidavit ought to have been filed by Shri Mahender Prasad himself as he had himself perused all the documents placed before him before he passed the detention order as he was the person who has formulated his subjective satisfaction to the grounds of detention. Therefore, return filed by Shri K.L.Verma should be ignored by this court. In support of his contention he has cited Special Criminal Application No.931 of 1994 with Special Criminal Application 942 of 1994 with Special Criminal Application No.943 of 1994 and Special Criminal Application No.957 of 1994. A Division Bench Judgment of Gujrat High Court and on the basis of the aforesaid authority Mr. Khan has argued that the return filed by the respondent be ignored as there is no proper affidavit on record of the writ petition.

(12) MR.MADAN Lokur, learned counsel for the respondent has argued that in the absence of any allegations of mala fide the affidavit could have been filed by the successor of Shri Mahendera Prasad as no prejudice has been shown by filing the affidavit of Shri K.L.Verma who is now working in the same department in which Mr.Mahender Prasad was working. In support of his contention he has cited Madan Lal Anand Vs. Union of India and others that unless and until there are allegations of mala fide if the affidavit has been filed by some authorised person, competent to swear who has dealt with the record of the case, such affidavit should not be rejected and also cited State of Punjab and others Vs. Jagdev Singh Talwandi and Nabani alias Alani Saha Vs. State of West Bengal . Mr.Lokur has contended that from the catena of cases the line of the arguments of the learned counsel for the petitioner that irrelevant documents have been taken into consideration will vitiate the order of detention is not correct. He has argued that if any prejudice is caused in making an effective representation to the petitioner then the petitioner might have a legitimate grievance in this regard. Learned counsel for the respondent has contended that while arriving at subjective satisfaction the detaining authority may have before itself voluminous documents but the subjective satisfaction has been arrived at only on the proximate and cogent material by eschewing irrelevant. Petitioner cannot say that irrelevant documents were considered by the detaining authority for arriving at subjective satisfaction. In support of his contention he has cited Mst.L.M.S. Ummu Saleema Vs. B.B.Gujaral & Another which reads as under:- ".....TRUE,it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt.Shalini Soni V.Union of India ). But these observations must be read in the context in which they were made in Shalini Soni's case, for example, the observation were made immediately after stating that "grounds" in Art. 22(5) did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences. In Icchu Devi Choraria v.Union of India, the Court observed (at p.1989) : "It is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention."

The stress was upon the words "relied upon". In Khudiram Das v.State of West Bengal the Constitutional requirement of Art. 22(5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art.22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art. 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art.22 of the Constitution."

(13) He has also cited Hari Das Amarchand Shah of Bombay Vs. K.L.Verma & Others (, Kamarunnissa Vs. Union of India & Anr. , Birendra Kumar Rai alias Virendra Kumar Rai Vs. Union of India and Others and Abdul Sathar Ibrahim Manik Vs. Union of India & Ors. .

(14) MR.LOKUR has contended that from pages 96 to 109 of the documents which have been asked for and supplied to the petitioner all were relevant documents. He says that all the documents which have been mentioned are relevant for the petitioner at pages 147, 148, 178, 187 and 191 resulting in a 'Havala' transactions with which the petitioner was connected and it was necessary for the detaining authority to arrive at subjective satisfaction by taking into account all these documents as these documents were relevant though they may not be connected with the petitioner directly but there was a link in these documents ultimately connecting the petitioner.

(15) Repelling the contention of learned counsel for the petitioner that in view of the fact that the petitioner was in judicial custody there was no need to detain the petitioner by clamping order of detention Mr.Lokur has mentioned that there was compelling necessity. As the petitioner had evaded the summons issued by the department for making investigation by obtaining ex parte order from Calcutta High Court with a view to delay and avoid the proceedings against him in Delhi. There was wholesome material before the detaining authority and compelling reasons in the interest of justice of accumulation of foreign exchange resources on the basis of statement of Surnam, Rameshwar Dass and Prem Parkash as well as prescribed by bank account of leasing company, Bmr Enterprises and statement of the petitioner recorded in the jail premises that the petitioner was deliberately involved in the compensatory payment racket. In support of his submission he has also cited Kamarunnissa's case (supra) and .

(16) MR.KHAN has also contended that there was undue delay in disposing the representation of the petitioner as the representation was made on 6.6.94 and there was delay of 49 days and no explanation for the delay has been forthcoming in the counter filed by the respondent. He has cited Smt.Gurmeet Kaur's case (supra) to support his contention that delay in disposing of the representation is fatal.

(17) MR.LOKUR has contended that any delay in consideration of the representation has been explained.

(18) It has been contended by the learned counsel for the respondent that detention order was served on the petitioner on 2.5.94 and the grounds of detention along with documents were served on 5.5.94. The representation was made by the petitioner on 30.5.94 seeking supply of additional documents the same was considered and rejected by the Central Government on 17.6.94. However illegible documents were further supplied on 30.6.94. The petitioner made another representation on 18.7.94 to the Central Government that he has received certain documents on 30.6.94 and they were more illegible than the said supplied earlier. The said representation was considered and rejected on 4.8.94. Hence there was no delay in considering the representation of the petitioner.

(19) I have heard the submissions of the learned counsel at length and have gone through the voluminuous pleadings of the parties and the catena of case laws cited before me. In the peculiar facts and circumstances of the case and seeing the conduct of the petitioner in not making himself available before the respondent for recording his statement and filing petition before the High Court at Calcutta, I am of the opinion that there was compelling necessity of the detaining authority to arrive at subjective satisfaction that though the detenu was in jail there was likelihood of his being released on bail and the detaining authority was also satisfied that the detenu was likely to indulge in activities which are prejudicial to the smuggling of foreign exchange.

(20) I do not see any force in the argument of learned counsel for the petitioner that vital documents which were necessary were not supplied to the petitioner or documents which were necessary were not supplied in time so as to preclude the petitioner from making an effective representation. The argument of the petitioner is contrary in terms because the petitioner has argued that irrelevant documents have been taken into consideration and the same have not been supplied to him. If the petitioner himself takes a position that a document is not relevant then to argue that the same have been relied upon by the detaining authority inasmuch as it has been stated so in the grounds of detention will itself not make those documents relevant. Some time a document may be unrelated or innocuous to the detenu and non-supply of such documents will not vitiate the order of detention and it cannot be said on that basis that irrelevant material has been considered by the detaining authority showing non-application of mind. Reading of grounds of detention as a whole in the particular facts and circumstances of this case, I hold that the grounds are sufficient to support the detention order under Sec. 5A of the Cofeposa Act. In view of the explanation given in the counter-affidavit by the respondent I do not hold that there was undue delay in disposing of the representation of the pertitioner. Following the law laid down by the Supreme Court in Abdul Sathar Ibrahim Manik's case (supra) and Virender Kumar Rai's case (supra), I also find no force in the arguments of the learned counsel for the petitioner that there was inordinate delay in passing the detention order, keeping in view the voluminuous nature of documents and persons involved from whom the investigation was to be made by the Sponsoring Authority.

(21) For the reasons stated above, I dismiss the writ petition. Rule is discharged.