Punit Sakhuja vs Uoi & Anr
2013 Latest Caselaw 1521 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Judgment delivered on: 04.04.2013

                  WRIT PETITION (CRIMINAL) NO.288/2013
        NAVPREET KAUR CHADHA                                      ..... Petitioner
                              Through:    Mr. Pradeep Jain, Mr. A.Samad,
                                          Mr. Shubhankar Jha, Mr. Dveep
                                          Ahuja, Mr. Tarun Chawla and
                                          Mr. M.J.Michael, Advocates.
                              versus
        UOI & ANR                                             ..... Respondents
                              Through:    Mr. S.K.Dubey, Mr. Saqib,
                                          Mr. Akshay Chandra, Advocate for
                                          UOI.
                                          Mr. Nilesh Gupta, Assistant Director
                                          (COFEPOSA).

                                         AND


                  WRIT PETITION (CRIMINAL) NO.289/2013
        PUNIT SAKHUJA                                             ..... Petitioner
                              Through:    Mr. Pradeep Jain, Mr. A.Samad,
                                          Mr. Shubhankar Jha, Mr. Dveep
                                          Ahuja, Mr. Tarun Chawla and
                                          Mr. M.J.Michael, Advocates.
                              Versus
        UOI & ANR                                             ..... Respondents
                              Through:    Mr. S.K.Dubey, Mr. Saqib,
                                          Mr. Akshay Chandra, Advocate for
                                          UOI.
                                          Mr. Nilesh Gupta, Assistant Director
                                          (COFEPOSA).


W.P.(CRL.)288 & 289 of 2013                                            Page 1 of 17
 CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                              JUDGMENT

SANJIV KHANNA, J. (ORAL)

CRL.M.A. 4081/2013 in W.P.(CRL) 288/2013 CRL.M.A. 4080/2013 in W.P.(CRL) 289/2013

There is no need for the petitioners to file the present applications

seeking permission to file an amended writ petitions as we had already

permitted the petitioners to amend the writ petitions vide our order that

01.04.2013. The applications will be treated as disposed of in terms of our

order dated 01.04.2013. The amended writ petitions are taken on record.

W.P.(CRL) 288/2013 & W.P.(CRL) 289/2013

Rule DB.

2. The learned counsel for the respondents waives his right to file an

additional/fresh counter affidavit and submits that the counter affidavit

which is on record may be read as counter affidavit to the amended writ

petition.

3. We have heard counsel for the parties and proceed to dispose of these

writ petitions.

4. As common issues arise for consideration in two writ petitions, we are

disposing them by this common judgement. The writ petitions challenge the

preventive detention orders in the case of Rohit Sakhuja and Ajit Singh

Chadha @ Romy.

5. Rohit Sakhuja and Ajit Singh Chadha have been subjected to detention

vide order dated 04.01.2013 under Section 3(1) of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(hereinafter referred to as 'the COFEPOSA Act'). They were served with the

detention order on 07.01.2013 in Tihar Jail, while in judicial custody in

criminal case/cases. Thereafter, they made representations which were

forwarded to the Central Government. Representation was also made to the

Advisory Board. The Central Government vide order dated 26.03.2013 has

informed the detenues that in exercise of the powers under Section 8(f) of

the COFEPOSA Act, the Central Government has confirmed the detention

order. The Central Government has further directed that under Section 10 of

the COFEPOSA Act, Rohit Sakhuja and Ajit Singh Chadha will be detained

for a period of one year from date of their detention i.e. 07.01.2013.

6. In the writ petition several contentions have been raised. During the

course of the arguments learned counsel for the petitioners pressed one

contention; that the detaining authority has not examined and gone into the

facet whether there was an imminent possibility that Rohit Sakhuja and Ajit

Singh Chadha would be released on bail, though they were in judicial

custody in the criminal case(s) pending against them. We may record that we

found force in the said contention and, therefore, learned counsel for the

petitioners has not addressed arguments on the other contentions.

7. The grounds of detention in paragraph 40 states that certain issues

against the detenues were pending before the courts. Sub paras (A) to (C) are

not relevant. Sub-para (D) of paragraph 40 pertains to FIRs under the Indian

Penal Code, 1860. Customs authorities of ICD, Tughlakabad, New Delhi

have filed FIR No.254/2012 in respect of clandestine removal of eight

containers on the basis of forged Customs Gate Passes in Pul Prahladpur,

Police Station, New Delhi. It is stated that Rohit Sakhuja and Ajit Singh

Chadha are the main accused in the said FIR. Ajit Singh Chadha was

arrested on 04.11.2012 in the said FIR. Rohit Sakhuja had preferred an

application for anticipatory bail which was rejected by the Additional

Sessions Judge, Saket as well as the Delhi High Court. The SLP filed was

withdrawn. Rohit Sakhuja surrendered before the Metropolitan Magistrate,

Saket on 22.12.2012 and was arrested by the Police on the same day. The

second FIR No.143/2012 has been filed by Anil Sakhuja, Proprietor of M/s

Rajan Super Stores, Karol Bagh, New Delhi in Deshbandhu Gupta Marg,

Police Station, New Delhi. The said FIR pertains to large number of SIM

cards obtained by Suraj Kumar, an employee of Ajit Singh Chadha by using

the photograph and ID proof of one Pritam Singh. The third FIR No.225

dated 16.10.2012 has been registered in Police Station Nihal Vihar, pursuant

to the complaint lodged by the Custom Officers. The Custom Officers had

detained Air Conditioners at A-59, Adhyapak Nagar, Nangloi, New Delhi.

There were handed over to the detenues for safe custody under

supurdarinama dated 16.03.2012. On physical examination of the seized

goods, discrepancies in the stock of air conditions were detected and goods

mentioned in the supardarinama were found to be missing. Rohit Sakhuja

and Ajit Singh Chadha it is alleged have failed to provide any plausible

reason/explanation for the discrepancy as detailed in the panchnama dated

19.09.2012. The last FIR i.e. FIR No.266/2012 dated 16.11.2012 has been

registered in police station Ranhola, Nangloi, on complaint by DRI officers.

It is alleged that seal and locks of Godown at 76, Meera Enclave, Village

Ranhola, Nangloi was found broken and the seized goods mentioned in the

panchnama dated 07.06.2012 were removed and loaded on a truck which

was intercepted with the help of local police. The goods were subsequently

shifted to CWC warehouse, Sahibabad under panchnama dated 19.11.2012.

8. Rohit Sakhuja was/is arrested and in judicial custody in FIR

No.254/2012 PS Pul Prahladpur and he has not been released on bail. Ajit

Singh Chadha has been arrested and is in the judicial custody in FIR

No.254/2012 PS Pul Prahladpur, FIR No.225/2012 PS Nihal Vihar and FIR

No.143/2012 PS Deshbandhu Gupta Marg.

9. In paragraph 47 of the grounds of detention in the case of Ajit Singh

Chadha, the detaining authority has recorded:-

"47. I am aware that you are liable to punitive action under the Customs Act, 1962 and connected prosecution proceedings and adjudication proceedings are likely to be initiated against Shri Ajit Singh Chadha alias Romy i.e. you. I am also aware that at-present you are under judicial custody for the matter being investigated by Police authorities and your bail application had been rejected at the first instance. However, taking into consideration your conducts all throughout the period since the investigation was initiated by DRI and your tendency to abscond, I am satisfied that your have high potentiality and propensity to indulge in aforesaid prejudicial activities, therefore, I am further satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 which a view to prevent you from engaging in smuggling goods in future."

10. Paragraph 47 of the grounds of detention against Rohit Sakhuja read:-

"47. I am aware that you are liable to punitive action under the Customs Act, 1962 and connected prosecution proceedings and adjudication proceedings are likely to be initiated against Shri Rohit Sakhuja i.e. you. I am also aware that at-present you are under judicial custody for the matter being investigated by Police authorities. However, taking into consideration your conducts all throughout the period since the investigation was initiated by DRI and your tendency to abscond, I am satisfied that your have high potentiality and propensity to indulge in aforesaid prejudicial activities, therefore, I am further satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 with a view to prevent you from engaging in smuggling goods in future."

11. The short question and issue is whether the aforesaid paragraphs 47

and the grounds given therein meet the requirement and satisfaction of law.

12. In Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors.,

(1986) 4 SCC 416, contention raised on behalf of the detenu was that the

detention order could be justified against a person already in detention if the

Detaining Authority was satisfied that his release from detention was

imminent and the order of detention was necessary for putting him back in

jail. It was also contended that service of order of detention on the detenu

while he was in jail was futile and useless exercise. Considering the said

contentions, the Supreme Court opined:-

"7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised....."

(emphasis supplied)

13. From a reading of the said paragraph it is clear that if a detenu is in

police or judicial custody and there is no imminent possibility of his release,

the rule is that the power of preventive detention should not be exercised.

However, when there is imminent possibility that the person in custody may

be released, power of preventive detention can be exercised.

14. Recently, the Supreme Court in Rekha v. State of Tamil Nadu

Through Secretary to Government and Anr., (2011) 5 SCC 244, examined

the said question in depth and detail. The matter was listed before three

Judges of the Supreme Court pursuant to the reference made by two Judges.

The Supreme Court in paragraph 8 of the said judgement referred to earlier

judgements in T.V. Sravanan alias S.A.R. Prasana Venkatachaariar

Chaturvedi v. State through Secretary and Anr., (2006) 2 SCC 664,

A.Shanthi (Smt.) v. Govt. of T.N. and Ors., (2006) 9 SCC 711; Rajesh

Gulati v. Govt. of NCT of Delhi and Anr., (2002) 7 SCC 129 and it was

observed that in the said cases it has been held that if no bail application was

pending and the detenu was already, in fact, in jail in a criminal case, the

detention order under the preventive detention law is illegal. Reference was

also made to the observations of the Constitution Bench decision in

Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198, wherein it was

observed:-

"34. Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to be likelihood of such a person indulging in activities which would jeopardize the security of the State or public order."

15. Thereafter, the Supreme Court referred to decisions in A.Geetha v.

State of Tamil Nadu and Anr., (2006) 7 SCC 603 and Ibrahim Nazeer v.

State of Tamil Nadu and Anr., (2006) 6 SCC 64, which were relied by the

State. In these decisions, it has been held that even if no bail application of

the detenu is pending but if in similar cases bail had been granted, then this

may be a good ground, in the subjective satisfaction of the detaining

authority to pass a detention order.

16. After noticing the aforesaid views expressed by the Supreme Court in

different decisions, in Rekha (supra) it has been observed and held:-

"10. In our opinion, if details are given by the Respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the Petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the Petitioner, then the Petitioner is ordinarily granted bail. However, the Respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored.

11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."

17. We would also like to reproduce paragraphs 26 and 27 of the said

judgement which are as under:-

"26. It was held in Union of India v. Paul Manickam and Anr., (2003) 8 SCC 342, that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made.

27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

18. The said decision in Rekha (supra) in paragraph 6 thereof records the

ground of detention which weighed with the Detaining Authority while

passing the detention order. The said paragraph reads:-

"6. In Para 4 of the grounds of detention, it is stated:

"4. I am aware that Thiru. Ramakrishnan is in remand in P-6, Kodungaiyur Police Station, Crime No. 132 of 2010 and he has not moved any bail application so far. The sponsoring authority has

stated that the relatives of Thiru. Ramakrishnan are taking action to take him on bail in the above case by filing bail applications before the higher courts since in similar cases bails were granted by the courts after a lapse of time. Hence, there is real possibility of his coming out on bail in the above case by filing a bail application before the higher courts. If he comes out on bail he will indulge in further activities, which will be prejudicial to the maintenance of public health and order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public health and order. On the materials placed before me, I am fully satisfied that the said Thiru. Ramakrishnan is also a drug offender and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982.""

19. In this background, the Supreme Court was posed with the question

that whether the said grounds meet and satisfy the requirements of law or

these were not sufficient to justify the detention order which therefore, for

non compliance of the law, stands vitiated. The Supreme Court in para 7 of

the said judgment quashing the detention order observed:-

"7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders

has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co- accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order."

20. We shall now examine paragraph 47 of the grounds of detention in the

case at hand on the touchstone of the ratio laid down by the Supreme Court

in the case of Rekha (supra).

21. We, at this stage record that other than paragraph 47 quoted above and

paragraph 40 which we have noticed, no other paragraphs in the grounds of

detention deal with bail applications and orders passed by the courts on the

bail applications preferred by the detenues. It is clear from paragraph 47 that

in the case of Ajit Singh Chadha, on the date when the impugned detention

order was passed, he was in judicial custody and it is recorded that his bail

application in the first instance had been dismissed and rejected. The

detention order does not mention or state that whether any fresh bail

application filed by Ajit Singh Chadha was pending consideration. It is also

not stated or averred that Ajit Singh Chadha was likely to be released on bail

or in similar cases accused secure and get released on bail. The words that

Ajit Singh Chadha was imminently likely to be granted bail in the criminal

cases in which he has been arrested are conspicuously missing and do not

form part of the grounds of detention. There is complete silence on the said

aspect.

22. In the case of detention order against Rohit Sakhuja, the situation is no

better. It is stated that he had been arrested and was in judicial custody since

arrest as the matter was being investigated by the police authorities. There is

no averment that Rohit Sakhuja had filed any bail application or was likely

to file a bail application and consequent thereto there was imminent

possibility that he would be released on bail. It was not recorded that in

similar cases other accused have been granted or released on bail. In fact, it

is averred in the writ petition and accepted that Rohit Sakhuja has not

preferred any regular bail application till today. Prior to his arrest he had

filed anticipatory bail applications which were rejected by the Sessions Court

and High Court.

23. In view of the aforesaid position, we do not think that the detention

orders can be sustained as there is a clear lapse and failure on part of the

Detaining Authority to examine and consider the aforesaid pertinent question

relating to imminently possibility of the detenu being granted bail in the

criminal cases in which they were detained while passing the detention

orders. The learned counsel for the respondents has highlighted the

allegations against Ajit Singh Chadha and Rohit Sakhuja which it is pointed

out are grave and very serious. This may be true and correct but this does

justify non-compliance with the mandate and requirements of law. As

observed in Rekha (supra), when an order under preventive detention law is

under challenge before a court, there are limited grounds or reasons on which

it can be invalidated or struck down. The procedural requirements are only

safeguards available to the detenu since the court is not expected to go into

the subjective satisfaction of the detaining authority. Procedural

requirements, as per judicial pronouncements, have to be strictly complied

with. Preventive Detention is permissible under Article 22(3)(b) of the

Constitution of India but the same has to ordered/directed keeping in view

that right to life and liberty are enshrined in Article 21 of the Constitution of

India. Preventive detention is an extreme step which is required and may be

justified, but when a detention order does not meet the prescribed parameters

and fails to comply with the procedural requirements, the order stands

vitiated and has to be struck down. Preventive detention is preventive in

nature and not penal or punitive and thus the requirement and stipulation that

preventive detention order should show and record that there is imminent

possibility that the detenu already in custody is likely to be released. In

Rekha's case (supra) the Supreme Court in clear and categorical terms has

held that the detaining authority can reasonably conclude and must state that

there is likelihood of the detenu being released on bail even though no bail

application is pending, since most courts normally grant bail in such cases.

Further, details of such cases must be given otherwise a bald statement of the

authority cannot be believed.

24. In view of the reasons and law discussed above and the examination

of the grounds of detention we have no option but to hold that paragraph 47

(and other paragraphs) of the impugned detention orders dated 04.01.2013

do not meet the criteria or ratio in the decision of Rekha (supra) and

accordingly the detention orders dated 04.01.2013 are quashed and set aside.

We, however, make it clear that this order will not affect the criminal cases

and various FIRs which are pending against Rohit Sakhuja and Ajit Singh

Chadha. We are not required to and have not examined whether they should

or should not be granted regular bail in cases where the detenues have been

arrested. We direct that the concerned detenues shall be released forthwith,

if not required to be detained in any case in accordance with law.

Writ petitions are allowed to the extent stated above. No costs.

SANJIV KHANNA, J

SIDDHARTH MRIDUL, J APRIL 04, 2013 mk