Mahinder Singh vs Union Of India And Ors.
1995 Latest Caselaw 34 Del

JUDGMENT

M. Jagannatha Rao, J.

(1) This is an appeal by the detenu against the judgment of the learned Single Judge dated 18th May, 1994 in the Cr.W. 445 of 1991. By that judgment, the writ petition was dismissed.

(2) The writ petition was filed at the pre-detention stage for the issue of a writ of certiorari calling for the record and quashing the order of detention dated 12th July, 1990 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

(3) So far as the point relating to the delay in service of the order of detention dated the 12th July, 1990 is concerned, the said question is now covered, by several decisions of the Supreme Court starting from Alka Subhash Gadia . There have been around five judgments of the Supreme Court subsequently and they have all been considered elaborately by a recent Full Bench of this Court in Mansukh Chhagan Lal Bhatt Vs. Union of India & Ors. , decided on 20th October, 1994. In fact, this writ petition was also taken up along with the Full Bench and thereafter it has come back before us on the basis of the decision on the Full Bench.

(4) We find that so far as the point relating to delay in the service of the detention order is concerted, that question is settled as held by this Court in the previous case.

(5) Learned Counsel for the appellant, however, argue that four other persons who were detained in connection with the same transaction had filed Habeas Corpus petition in this Court and they have been released by a learned Single Judge of this Court on the grounds of the non-application of mind by the detaining authority because of the use of the word "otherwise" in the detention order. Learned Counsel contends that in the reply filed by the respondents before us. It was conceded by the respondents that the word "otherwise" was also used in the detention order pertaining to the petitioner and, therefore, the writ petition has to be allowed on the basis of the judgment i the case of three of the other detenus connected with the same transaction has been placed before us which was rendered in Cr.W. 398/90,389/90 and 521/90 on 9th April, 1991.

(6) When the above said judgment was relied upon the present detenu before the learned Single Judge, the following reasoning was given by the learned Single Judge while rejecting the contention based on the release of the other detenus: "Merely because of the co-detenus have been released cannot be a ground to quash the order of detention and reference in this regard can be had to the latest pronouncement of the Supreme court in case criminal appellant 662/93 titled the administer of the N.C.T. of Delhi, Vs. Prem Singh decided on 19th January, 1992."

(7) The judgment of the Supreme Court in Prem Singh's case referred to by the learned Single Judge has since been reported in 1994 (2) Scale 747. That judgment was referred to by this Court in the Full Bench case in Mansukh Chhagan Lal Bhati (supra) and it was stated in Full Bench as follows : "Again in Prem Singh's case when the High Court proceeded on the basis that the grounds of detention were common between the petitioner (who was not under detention) and another person who was under detention but was released by the Advisory Board, the Supreme Court held that merely because the latter was released by the Advisory Board, the Court could not assume that the grounds were the same and then release him from detention. This is because' the grounds, so far as yet to be disclosed. They could not be inferred from the case of the co-detent."

(8) The Full Bench also pointed out that in Prem Singh's case, the Supreme Court adverted to the judgment of this Court regarding release of the co-detent by the Advisory Board and observed as follows:    "To put it shortly, ........... we find it extremely impossible to support this order."  

(9) For the aforesaid reasons, we are not inclined to interfere with the judgment of the Learned Single Judge and confirm the same, and dismiss the appeal. We make it clear that the appellant can question the order of detention after it was served on him.