Charan Singh vs Uoi & Ors
2009 Latest Caselaw 2248 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment delivered on: 25.5.2009


+       W.P.(CRL) 1052/2008 and C.M.No.8585/2008

CHARAN SINGH                                                ..... Petitioner

                                        versus

UOI & ORS                                                   ..... Respondents

Advocates who appeared in this case:-

For the Petitioner : Mr Arvind Nigam, Senior Advocate with Mr Anindya Malhotra,Mr Raghu Tandon and Mr Rohit Singh For the Respondents : Mr Baldev Malik

CORAM:

HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.      Whether Reporters        of      local   papers may      be      allowed
        to see the judgment ?                         YES
2.      To be referred to the Reporter or not ? YES
3.      Whether the judgment should be reported in Digest ?       YES



BADAR DURREZ AHMED, J.(Oral)

1. By way of the present writ petition, the petitioner seeks the

quashing of the detention order No.673/37/92-CUS.VIII dated

12.02.1992 passed by Shri Mahendra Prasad, Joint Secretary to the

Govt. of India in purported exercise of powers conferred under Section

3(1) of The Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 (hereinafter referred to as

„COFEPOSA‟.

2. This case has a chequered history. As stated above, the detention

order which is impugned herein was passed on 12.02.1992. Virtually

identical detention orders were passed in respect of two other persons,

namely, Naresh Chand Jain and Hazari Lal Jain by the same detaining

authority on 12.02.1992 itself. In so far as the detention order

pertaining to Naresh Chand Jain was concerned, the same was revoked

by the Advisory Board on 30.04.1992. The detention order in respect

of Hazari Lal Jain was set aside by a Division Bench of the Bombay

High Court on 15.09.1992. The same was set aside on the solitary

ground that the detaining authority had passed the detention order on

the same day on which he had received the voluminous documents in

support of the proposal for detention. According to the Bombay High

Court, this clearly implied non-application of mind on the part of the

detaining authority inasmuch as the said authority could not have had

enough time to go through the voluminous record and then to arrive at a

conclusion as to whether the detention order be passed or not. The

learned counsel for the petitioner submits that it is the same detaining

authority who has passed the detention order in respect of the present

petitioner also and on the basis of the same voluminous record. He also

submitted that the case for detention arises out of the same incident of

22.11.1991 in which Hazari Lal Jain was also said to be involved. The

incident which took place on 22.11.1991 was that Hazari Lal Jain was

found in possession of foreign exchange comprising of Traveller

cheques of US dollars, UK pounds and Canadian dollars as well as cash

in US currency. The said foreign exchange was said to be carried by

Hazari Lal Jain to be delivered to the petitioner Charan Singh. The said

Hazari Lal Jain was allegedly arrested outside the petitioner‟s house

while he was in possession of the said foreign exchange. The learned

counsel further pointed out that the petitioner‟s house was immediately

thereafter searched but no foreign exchange was found. He also

submitted that till date the petitioner has not been prosecuted for the

said incident which took place on 22.11.1991 although there are other

prosecutions pending against the petitioner with regard to foreign

exchange violations for a prior period.

3. The petitioner filed a writ petition before this Court in April 1992

being W.P.(Crl.) No.183/1992 challenging the detention order dated

12.02.1992 at the pre-execution stage. By an order dated 10.08.1992,

the execution of the detention order had been stayed by this Court.

However, the stay was vacated by a subsequent order dated 19.10.1992

and the writ petition itself was dismissed by a learned single Judge, on

merits, on 02.02.1993. Being aggrieved by the dismissal of the writ

petition, the petitioner preferred a Letters Patent Appeal being LPA

No.9/1993 in March 1993 before a Division Bench of this Court. The

said LPA was admitted by an order dated 12.05.1993 and interim

protection was granted to the Petitioner by directing that he need not be

arrested in the meanwhile.

4. The writ petition [W.P.(Crl.) No.183/1992] preferred by the

petitioner had been filed through Mr.N.C.Chawla, Advocate.

Mr.N.C.Chawla, Advocate was keeping indifferent health and

ultimately passed away sometime in 2003. In the meanwhile, however,

the Letters Patent Appeal was listed on 22.03.2001 before an alternate

Bench. Nobody appeared on behalf of either of the parties and the said

appeal was dismissed for non-prosecution and the Bench, while

dismissing the appeal, observed that it appeared that the same had

become infructuous in course of time. The learned counsel appearing

for the petitioner submitted that in connection with certain other

prosecutions pending before the learned Additional Chief Metropolitan

Magistrate (for short `ACMM‟), Delhi, the petitioner appeared in those

matters on 50 different occasions between 2001 to 2006. The

respondents did not even attempt to serve the detention order on the

petitioners. However, suddenly, on 12.07.2006, the petitioner was

taken into custody but as the respondents could not find the detention

order, the same could not be served upon the petitioner and he had

ultimately to be released on that day itself. Immediately thereafter on

12.07.2006 itself, the petitioner filed a representation. That

representation was for the purposes of protesting against the manner in

which he was taken into custody and then released without being

served with any detention order. Thereafter, the petitioner contacted

the clerk of Mr.N.C.Chawla, Advocate and came to learn that he had

passed away. Another advocate was engaged, who inspected the file

and from such inspection, it was revealed that the Letters Patent Appeal

had, in fact, been dismissed on 22.03.2001.

5. Consequently, on 19.07.2006 two applications were moved on

behalf of the petitioner. One was for condonation of delay and the

other was for restoration of the said Letters Patent Appeal. On

24.07.2006, the said applications came up before the Court and notice

was issued on the same. As an interim measure, it was directed that the

petitioner need not be arrested in the meanwhile. Thereafter, by an

order dated 27.05.2008 the delay was condoned and the Letters Patent

Appeal was restored. The following order was passed by the Division

Bench on that date:-

"ORDER 27.05.2008

CRL.M.A.9852 (delay) and 9851/2006 (restoration)

For the reasons stated in the Application the delay in filing the Application is condoned and the Appeal which was dismissed on 22.3.2001 is restored to its original number.

LPA 9/1993 and CRL.M.A.15959/2006 The Appeal concerns a challenge to preventive detention at the pre execution stage. The facts and events go back to 1991. According to the Respondents, the Order could not be executed because the Appellant had adopted methods whereby service could not be effected. According to the Appellant he had not adopted any methods to defeat service upon him of the detention Order. We do not propose to go into these rival stands, at this stage. In these circumstances we had put to learned counsel for the Appellant that if the Appellant appeared in Court the restrictions placed on the hearing of Petitions at the present stage, inter alia in Additional Secretary to the Government of India -vs- Smt. Alka Subhash Gadia, 1992 (Suppl.) (1) SCC 496; may no longer be an impediment for him. The Appellant is present in Court today.

Without prejudice to the contentions of either parties, we direct the Appellant to appear before the Deputy Director, Directorate of Enforcement,10-A, Jam Nagar House, Akbar Road, New Delhi on 30.5.2008 at 11.00 AM. Counsel for the Respondent states that the Order together with the reasons and other documents shall be served on the Appellant on that date. In this manner the order which could not be served on the Appellant for last over 15 years shall stand served on the Appellant. For a period of 10 days thereafter the Respondents are directed to refrain from taking any coercive steps against the Appellant. Whatever remedies are available to the Appellant, he may take recourse of. Appeal as well as CRL.M.A. 15959/2006 stand disposed of in

these terms. A copy of this Order be given dasti, as prayed.

VIKRAMAJIT SEN,J RAJIV SAHAI ENDLAW, J MAY 27, 2008"

6. In view of the direction given by the Division Bench on

27.05.2008, the detention order was served upon the petitioner on

30.05.2008. Immediately thereafter on 01.06.2008, the petitioner made

two representations. One representation was for the supply of deficient

material and the other representation was for the revocation of the

detention order primarily on the ground that there was no purpose left

in detaining the petitioner in 2008 when there was no indication of any

prejudicial activity in the past 16 years i.e., from the date of the

detention order of 12.02.1992.

7. Awaiting the result of the representations filed by the petitioner,

the petitioner moved the present writ petition on 02.06.2008. By virtue

of the order dated 06.06.2008 passed in the present writ petition the

period of 10 days granted by the earlier order dated 27.05.2008

whereunder no coercive steps were to be taken against the petitioner

was extended to the next date and thereafter it was continued from time

to time. We may also note that the Union of India, being aggrieved by

the order dated 27.05.2008 passed in the said Letters Patent Appeal

preferred two Special Leave Petitions being SLP (Crl.) Nos. 5157-

5158/2008 before the Supreme Court. Those Special Leave Petitions

were however dismissed by the Supreme Court on 28.07.2008. In the

meanwhile, the representation preferred by the petitioner on 01.06.2008

also came to be rejected by the respondents on 17.06.2008. The

petitioner moved another representation on 25.06.2008 for revocation

of the detention order in view of the fact that no purpose would be

served by detaining the petitioner. The said representation was also

rejected on 22.07.2008. This is where the matter stands today.

8. Mr. Arvind Nigam, senior advocate appearing for the petitioner

submitted on the strength of the decision in Deepak Bajaj v. State of

Maharashtra and Anr.: 2008 (14) SCALE 52 that no useful purpose

would be served by first requiring the petitioner to be taken into

custody and then setting aside the detention order. He submitted that

the setting aside of the detention order was imminent particularly

because of the view taken by the Bombay High Court in the case of the

co-detenue. He submitted that the setting aside of the detention order

was imminent also because of the fact that there has been no allegation

of any prejudicial activity on the part of the petitioner after 1992. The

third reason as to why the detention order, according to the learned

counsel for the petitioner, is liable to be set aside, is the fact that there

has been no explanation as to why there has been such a long delay in

the service of the detention order even subsequent to the dismissal of

the Letters Patent Appeal on 22.03.2001 till its restoration on

24.07.2006 particularly when the petitioner had been appearing before

the learned ACMM in connection with other prosecutions on the

complaints of the Enforcement Directorate itself.

9. Mr. Nigam also placed reliance on the judgment of this Court in

the case of Smt. Gopa Manish Vora v. Union of India. & Anr. passed

in W.P.(Crl.) No.2444/2006 decided on 10.02.2009.

10. The learned counsel for the respondents submitted that the

petitioner is an absconder and should not be treated leniently. He

submitted that the petitioner has been evading the service of notice

since 1992 and the case of the petitioner does not fall within the

exceptions provided in Additional Secretary to the Govt. of India &

Ors. v. Alka Subhash Gadia and Anr.: 1992 Suppl. (1) SCC 496.

Consequently, he submitted that this petition which has been filed at

the pre-execution stage of the detention order cannot be entertained by

this Court and ought to be dismissed on this ground alone. Apart from

this, the learned counsel also submitted that the petitioner is an habitual

offender and there are nine cases pending against the petitioner in

respect of which prosecutions are pending. The learned counsel for the

respondents submitted that in the incident which took place on

22.11.1991, which we have already noticed above, the adjudication

proceedings have culminated into a penalty order to the extent of Rs.10

lakhs. The said penalty order dated 01.10.1996 was passed by the

Special Director (Enforcement). Since the said amount was not paid by

the petitioner, a prosecution was lodged against him for which he was

also convicted by the learned ACMM on 07.10.2006 and a further fine

of Rs.3 lakhs was also imposed. The learned counsel for the

respondents also submitted that the conduct of the petitioner does not

entitle him to any leniency from the Court.

11. In rejoinder the learned counsel for the petitioner submitted that

while it is true that there were adjudication proceedings against the

petitioner in respect of the incident on 22.11.1991 which culminated in

the said penalty order whereby penalty of Rs.10 lakhs was imposed on

the petitioner, it also cannot be denied that no criminal prosecution as

such was lodged against the petitioner in respect of the said incident of

22.11.1991. With regard to the conviction and further penalty of Rs.3

lakhs as indicated by the learned counsel for the respondent, the learned

counsel for the petitioner submitted that the entire penalty amount of

Rs.10 lakhs as well as the additional penalty amount of Rs.3 lakhs has

been paid and nothing remains due on that account.

12. We have heard learned counsel for the parties and considered the

submissions made by them. We may straightaway point out that at

pages 23 and 24 of the paper book the petitioner has categorically

stated that in the present case except for the alleged incident of

22.11.1991 in which also there is no criminal prosecution against the

petitioner, there is no other allegation during the last more than 17

years against the petitioner. The reply given by the respondents in their

counter affidavit does not specifically controvert this fact. The

inference that can be drawn for this is that no prejudicial activity of the

petitioner is within the knowledge of the respondent after 1991 or at

least after the passing of the detention order dated 12.02.1992. In fact,

on a pointed question being put to the learned counsel for the

respondents, he admitted that as per the counter affidavit no specific

incident of prejudicial activity of the petitioner after the passing of the

detention order has been pointed out. However, he had drawn our

attention to paragraph 3(xiii) of the counter affidavit wherein it is noted

that the petitioner is an habitual offender and a list of prosecutions filed

against the petitioner before the learned ACMM, Patiala House, New

Delhi has been indicated. The said list comprises of nine cases, all of

30.06.1986. No other incident has been pointed out. From this, it is

apparent that there is nothing on record to show that the petitioner has

indulged in any prejudicial activity after the passing of the detention

order dated 12.02.1992.

13. Apart from this, we also note that the respondents had ample

opportunity to serve the detention order upon the petitioner after the

dismissal of the Letters Patent Appeal on 22.03.2001 and prior to its

restoration on 24.07.2006. There was at least 50 occasions on which the

petitioner appeared before the learned ACMM in prosecutions launched

by the very same respondents but they made no attempt to serve the

detention order on the petitioner. Finally and most importantly, the

Bombay High Court has taken a view in the case of the co-detenue that

the detaining authority did not have the requisite time to have applied

its mind to the facts of the case before the detention order was passed.

This is so because the documents that were received by the detaining

authority were voluminous and on the same day he passed the detention

order in respect of the co-detenue as well as the present petitioner. The

same reasons would apply to the present case also. We may also note

that the Supreme Court in Deepak Bajaj (supra) had clearly indicated

that the instances mentioned in Alka Subhash Gadia (supra)

whereunder detention orders could be challenged prior to their

execution, were not exhaustive but illustrative. In the very same

decision i.e. in Deepak Bajaj (supra), the Supreme Court took the view

that no useful purpose would be served by first requiring the person to

be taken into custody and thereafter quashing the detention order when

it is clear that the detention order is liable to be quashed in the first

instance. In Smt. Gopa Manish Vora (supra), this court had, inter alia,

placed reliance on two other decisions of the Supreme Court in the case

of Maqsood Yusuf Merchant v. Union of India & Anr. in Crl.Appeal

No.1337/2008 decided on 22.08.2008 and Yusuf Razak Dhanani v.

Union of India & Ors. in W.P.(Crl.) 132/2008 decided on 21.11.2008,

where a similar sentiment is expressed. The detention order has also

lost its relevance inasmuch as over 17 years have elapsed since the

passing of the detention order and the respondents have been unable to

point out that the petitioner has been indulging in any prejudicial

activity during this period. It is axiomatic that preventive detention is a

preventive measure and is not punitive. When nothing prejudicial has

even been alleged concerning the time that has elapsed since the

passing of the detention order, what is it that would be prevented by

executing the detention order by taking the petitioner into custody? It is

obvious that the detention order has lost its relevance today and

continuing the same would be an exercise in futility.

14. For all these reasons, we set aside the detention order. The writ

petition is allowed to this extent. There shall be no order as to costs.

                                     BADAR DURREZ AHMED, J


MAY 25, 2009                                AJIT BHARIHOKE, J
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