Irfan Hussain @ Mazhar Abbas ... vs Lt. Governor, Nct Of Delhi And Ors.
2001 Latest Caselaw 1949 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner has challenged the order of detention dated 1.2.2001 passed by the Deputy Secretary (Home), Government of NCT of Delhi in the name of Lt. Governor in exercise of the powers conferred by Section 3(1) of the Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). The Lt. Governor has directed that the petitioner be detained and kept in custody with a view to preventing him from smuggling goods in future.

2. The grounds of detention dated 1.2.2001 referred to the incident of 4.11.2000 when the petitioner arrived from Hongkong via Singapore and proceeded to the exit gate of the Customs Arrival Hall through the Green Channel are that the petitioner was intercepted on suspicion by the custom officers and from his baggage recovery of 15 polythene packets containing 14.744 Kgs of white powder was made. The petitioner claimed that the said powder was bleaching powder but on Chemical analysis it was found that the same was 'dexamethasone' which is meant for manufacture of medicine. A detailed panchnama was drawn on 6.11.2000 and a statement was made by the petitioner under Section 108 of the Customs Act, 1962. The details obtained from the Immigration authorities showed that the petitioner had gone abroad six times from 19.8.2000 to 24.10.2000. Statements of various persons were recorded in pursuance to summons issued under Section 108 of the Customs Act and a complaint dated 3.1.2001 for offences punishable under Section 132 and 135(1a) of the Customs Act, 1962 was filed against the petitioner in the court of ACMM, New Delhi. A reference is made in the statement in the grounds of detention to the fact that the petitioner was earlier detained under the detention order dated 14.1.91 and detention order dated 2.2.94 both under Section 3(1) of the Act. The petitioner had retracted from his statement when the bail applications were filed by him.

3. In para 21 of the grounds of detention it is specifically stated that the Lt. Government is satisfied that if the petitioner would come out on bail he is likely to indulge in smuggling activities in future. Para 22 refers to "foregoing facts and circumstances" for the Lt. Governor nor to come to the conclusion that the petitioner had inclination and propensity of indulging in smuggling in an organized and clandestine manner and unless the petitioner was prevented he was likely to indulge in smuggling activities in future. An important aspect is what is recorded in para 23 of the grounds of detention where it is stated that while passing the detention order under the said Act the Lt. Governor of NCT of Delhi "has relied upon the material contained in the statement and documents mentioned in serial No. 1 to 34 in the enclosed list". A list was enclosed therewith which apart from serial Nos. 1 to 34 aforementioned also had three other documents at serial Nos. 35 to 37 relating to earlier incidents.

4. Mr. Trilok Kumar, learned counsel for the petitioner, contended that the sponsoring authority had suppressed many relevant and important documents in relation to the incidents of December, 1990 and December, 1993 inasmuch as the detention order had not considered the orders of Hon'ble High Court quashing the detention orders in those earlier cases. It was thus contended that since detention orders in those cases had gone into the formation of the subjective satisfaction to detain the petitioner, the detention stood vitiated and it had denied the petitioner an opportunity to make effective and purposeful representation since the earlier documents relating to the quashing of the detention orders have not been supplied to him. The argument of the learned counsel for the petitioner was that the consideration of such earlier cases for arriving at the subjective satisfaction to detain in a subsequent case is impermissible in law and, therefore, the detention order under challenge was bad in law on that account and was thus liable to be quashed. It was the submission of the learned counsel for the petitioner that the earlier detention orders could have been 'relevant material' only if they were revoked or the period of detention had expired but in case they were quashed prior to the date of the new detention order, even referring to such orders would amount to consideration of such material which was not permissible in law. The learned counsel for the petitioner referred to grounds of detention to contend that in para 17 there is reference to the earlier detention orders and para 22 refers to "foregoing facts and circumstances" which would include the earlier detention orders which had been quashed specifically in view of the fact that documents relating to earlier detention orders were supplied as per serial Nos. 35 to 37 of the list of documents along with the detention order.

5. The aforesaid submission advanced on behalf of the petitioner by the learned counsel has to be considered in view of the opposition to the present petition by the respondent authorities. In the counter affidavit dated 11.5.2001 of Sh. G.L. Meena, Deputy Secretary (Home) it has been categorically stated that the list of documents supplied to the petitioner regarding earlier detention of the petitioner were not relied upon. Thus it is stated that reliance had been placed on the material contained in the statement and documents mentioned at serial Nos. 1 to 34 only in the enclosed list.

6. It may also be stated that additional ground was sought to be pleaded by the petitioner vide Crl. M. 606/2001 including inordinate delay in consideration of the representation by the Central Government but the said application was dismissed as not pressed in terms of the order dated 21.1.2001.

7. The learned counsel for the petitioner relied upon a number of authorities to advance his submission that whether the earlier detention cases were "relied upon" or "referred to" did not make any difference because it would amount to influencing the subjective satisfaction of the detaining authority. To support the said submission following cases were referred to :- Kirit Kumar, C.L. Kundaliya v. UOI and Ors. 1981 SCC (Cr) 471; M.A. Kutty v. UOI 1990 SCC (Cr) 258.

8. Learned counsel for the petitioner strongly relied upon the judgment of Supreme Court in Chhagan Bhagwan Kahar v. N.L. Kalra and Ors 1989 SCC (Cr.) 367 in support of his argument that there could be no reference to a detention order which already stood quashed since the said order is void-ab-initio for consideration of the grounds of earlier detention orders. We may, however, observe that in the said case there was an admission on behalf of the State in the counter that earlier grounds of detention had been considered. The facts of the present case are thus clearly different in as much there is a categorical averment made on affidavit that material mentioned at serial Nos. 1 to 34 alone had been considered though other documents of earlier detention orders had also been supplied but the same had only been mentioned to complete the historical narration.

9. Ms. Mukta Gupta appearing for the Govt. of NCT of Delhi also referred to the judgment in Chhagan Bhagwan Kahar's case (supra) to contend that there was no dispute on the proposition that if an earlier detention order had been quashed the grounds of the said detention order can not be taken into consideration as a whole or in part for a fresh detention order. However, as noted above, the distinguishing feature sought to be advanced by Ms. Mukta Gupta, learned counsel for the Govt. of NCT of Delhi was the admission in Chhagan Bhagwan Kahar's case (supra) to such grounds having been considered as distinguished from the present case where it is categorically stated that no reliance had been placed on the earlier detention orders. It has further been stated that in the present case neither the order nor the grounds of detention have been supplied but only the documents relating to those seizures have been supplied. Learned counsel has also sought to draw strength from the judgment of Supreme Court in Meena Jayendra Thakur v. Union of India and Ors. to contend that validity of the order of detention issued under Section 3(1) of the Act by the detaining authority cannot be held to be void because of a subsequent infraction of the detenu's right or of the non-compliance of the procedure prescribed under law of such infraction and for non-compliance of the procedure prescribed under law once the detaining authority on the basis of the material before it did arrive at its decision with regard to the necessity of passing orders of detention. The present detention is thus sought to be supported by the fact that prejudicial activity of the petitioner were apparent from the incident of 4.11.2001 when the seizures of 15 polythene bags was made.

10. A number of other judgments have also been refer to in the written synopsis filed subsequently but we do not deem it necessary to consider the same since the short question which has been argued relates only to the factum of mention in the grounds of detention of the earlier incidents and the supply of the documents at serial Nos. 35 to 37.

11. We have considered the submissions advanced by the learned counsel for the parties and are of the considered view that there is no reason to sustain the challenge to the order of detention.

12. It has been noted above that the principle of law is that earlier detention orders which have been quashed or the grounds for the same cannot be taken into consideration for purposes of passing a fresh detention order. The question which arises for consideration is whether such is the situation in the present case? The answer to the same is clearly in the negative, in view of the categorical averment made in the counter affidavit that no reliance has been placed on such detention order or the earlier grounds of detention. The question is not only one of what has been stated by the respondents in the counter affidavit but of the reading of the grounds of detention itself. A mere recital of the past history where earlier detention orders were passed cannot invalidate the detention order. In the grounds of detention para 21 sets out why the detention order is required to be passed and para 22 refers to those "foregoing facts and circumstances" to come to the conclusion to pass the detention order. Not only para 23 of the grounds of detention clearly states that while passing the detention order the Lt. Governor had relied upon the material contained in the statements and documents mentioned at serial Nos. 1 to 34 in the enclosed list. Serial Nos. 35 to 37 thus do not form a part of the basis of the detention order apart from the fact that same are not detention order or grounds of detention of the previous detention orders and the same are only documents relating to those seizures. We are thus in agreement with the submission advanced on behalf of respondents by Ms. Mukta Gupta, learned counsel for the respondents that the reference to the earlier detention order was only by way of introduction or preamble and the order of detention has been passed on the prejudicial activity of the petitioner dated 4.11.2001.

13. The facts of Chhagan Bhagwan Kahar's case (supra) would have no application to the present case since the findings in that case were based on the admission by the detaining authority that it has considered the earlier detention orders while the same is absent in the present case.

14. The issue whether grounds are severable and can be relied upon within the meaning of Section 5A of the Act would not arise for consideration in view of our conclusion that there is no reliance on the earlier detention orders for arriving at the subjective satisfaction before the passing of the present order.

15. We thus find no merit in the present petition and the same is dismissed.