| SooperKanoon Citation | sooperkanoon.com/383124 |
| Subject | Criminal |
| Court | Karnataka High Court |
| Decided On | Jan-23-1991 |
| Case Number | W.P. (HC) No. 144 of 1990 |
| Judge | Mohan, C.J. and ;Shivaraj Patil, J. |
| Reported in | ILR1991KAR454; 1991(2)KarLJ77 |
| Acts | Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3 |
| Appellant | Bhawarlal Jain |
| Respondent | Mahendra Prasad |
| Appellant Advocate | M.G. Karmal and ;Kiran S. Javali, Advs. |
| Respondent Advocate | Shylendra Kumar, Senior Counsel Govt. Standing Counsel for R-1 and R-2 |
| Disposition | Petition dismissed |
Shivaraj Patil, J.
1. This Writ Petition is by Sri Bhawarlal Jain the father of the detenu Mahesh Kumar Seth alias Mahesh Kumar Jain who has been detained in Central Jail, Bangalore, in pursuance to the order of detention dated 9-8-1990 passed by the 1st respondent under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act) in F.No. 673/270/90 Cus VIII marked as Annexure-A to the Writ Petition. The detenu has been furnished the grounds of detention, order of detention and materials relied on in passing the order of detention. The grounds of detention are filed at Annexure-B to the petition.
2. The petitioner in this Writ Petition has sought for:-
a) Issue a Writ In the nature of Habeas Corpus or any other appropriate Writ Order or direction declaring the detention of Shri Mahesh Kumar Seth alias Mahesh Kumar Jain by order F.No. 673/ 270/90 Cus VIII dated 9th August 1990 as illegal and abinitiovoid.
b) Pass such other order or orders as the case may be including the release of the detenu.
3. Briefly stated the facts of the case are:-
On credible information received that a suspected Maruti car carrying contraband gold is expected to arrive at Bangalore on 25-7-1990, the Officers of Bangalore DRI Zonal Unit proceeded to Peenya Sales tax checkpost on Tumkur-Bangalore National Highway along with witnesses at about 14 hours. An Ambassador car (taxi) bearing Registration No. MEU 4214 towing a Maruti car bearing Registration No. MMY 7278 was seen coming from Tumkur side. The Officers gave signals to stop the car. The car stopped, Officers found two occupants in each of the cars. The detenu and other occupants of the Maruti car got down and tried to run away. The Officers chased and apprehended the detenu who fell down during the chase. On questioning the occupants of the Ambassador car, they informed that they were towing the. Maruti car from Chitradurga to Bangalore. The detenu revealed his name as Mahesh Kumar Seth of Bombay and the other occupant of the Maruti car disclosed his name as Khader Abdul Wahab of Bombay. On persisting inquiries the detenu stated that there was contraband gold in the car which was to be delivered to one Ramesh Kumar Jain staying at Hanumanthanagar, Bangalore. Since large crowed had gathered at the place of interception causing traffic problem and due to security reasons the said cars were brought to the DRI office at Bangalore along with witnesses who had accompanied DRI officers. At the DRI office when the said Maruti car was searched the officers recovered two documents from the dash board relating to the car besides the driving licence of the detenu. On further search a stepney tyre was found in the dicky of Maruti car, when lifted, it weighed unusually heavy. With the help of a vulcanising man the tyre and tube were removed from the wheel disc, a white plaster was seen fixed on the wheel disc when that plaster was removed, it was found to contain heavy metallic substance wrapped inside the adhesive plaster. In addition one more layer of white adhesive plaster was found similarly fixed on the said wheel disc. When the second layer was removed it was also found to contain heavy metallic substances. The Officers recovered 90 foreign marked gold biscuits each weighing 10 tolas from the first strip of adhesive plaster. Similarly they recovered 32 gold biscuits with foreign markings each of 10 tolas weight. Thus totally 122 gold biscuits with foreign markings were recovered from the said stepney tyre. A goldsmith having tested all the said 122 gold biscuits by touch stone method, opined them to be of foreign origin. The total weight of the said gold biscuits was 14225.200 grams and was valued at Rs. 48,08,000/-. When the detenu and Khader Abdul Wahab were questioned they did not produce any valid documents in support of the licit import of the said gold of foreign origin. The Senior Intelligence Officer of DRI seized these 122 gold biscuits under a mahazar dated 25-7-1990 on the reasonable belief that the said gold biscuits have been smuggled into India in contravention of the provisions of the Customs Act, 1962.
4. On 25-7-1990 the detenu gave a statement under Section 108 of the Customs Act, 1962. In the said statement he stated that he was doing brokerage business at Bombay and was earning about Rs. 2,000/- per month; when the Maruti car MMY 7278 towed to an Ambassador car was coming towards Bangalore, the same was stopped by the officers and he unsuccessfully tried to escape; at the DRI office after thorough search 122 gold biscuits with foreign markings were recovered; the same were seized under a mahazar; he agreed with the contents of the mahazar as true and correct; his younger brother Ritesh Kumar was working with one Ramesh Kumar Jain in Bangalore assisting him in smuggling gold biscuits; he knew that Ramesh Kumar Jain was involved in seizure of 12 gold biscuits of foreign origin during December 1988 and that said Ramesh Kumar Jain was also detained in 1989 under the COFEPOSA Act and that he was also involved in the seizure of 120 gold biscuits of foreign origin at Bangalore during July 1988; that all the seized gold biscuits were supplied by Suresh Kumar Jain; that as Ramesh Kumar Jain had started in dealing in smuggling gold biscuits again, Suresh was instructed to search for a reliable person for delivering gold biscuits from Bombay to Bangalore; that the detenu was contacted by Suresh Kumar Jain at Bombay and was instructed to transport the contraband gold from Bombay to Bangalore; that his brother had already worked with Ramesh Kumar Jain; that the detenu agreed to transport the contraband gold on the offer that he was to be paid Rs. 5,000/- per trip to Bangalore apart from other expenses; that the detenu left Bombay on 23-7-1990 at about 11 p.m. with Khader Abdul Wahab; at Chitradurga the Maruti car developed problems and the journey could not be continued and on 25-7-1990 morning he engaged a taxi to tow the vehicle to Bangalore; before he could reach Bangalore the DRI Officers stopped the vehicle and later recovered the said 122 gold biscuits of foreign origin.
5. The detenu was arrested along with Khader Abdul Wahab on 25-7-1990 at 23.30 hours and were produced before the Presiding Officer, Special Court for Economic Offences, Bangalore, on 26-7-1990 along with remand application. He was remanded to judicial custody till 9-8-1990. Bail application on his behalf was filed on 26-7-1990. The said bail application was rejected by the Court on 4-8-1990 and the detenu was remanded to judicial custody up to 9-8-1990.
6. In the letter dated 31-7-1990 sent from the Central Prison, Bangalore, to respondent-1 the detenu has stated that he was not involved in the seizure effected by DRI and that he had been falsely implicated in the said case.
7. The first respondent who was especially empowered under Section 3(1) of the COFEPOSA Act, passed the order of detention on 9-8-1990 (Annexure-A) having arrived at the subjective satisfaction on the grounds stated under Annexure-B.
8. Sri M.G. Karmal, learned Counsel for the petitioner assailed the order of detention and urged that the said order is vitiated on the grounds of -
i) the delay in considering representation of the detenu;
ii) the failure to place the representation before the Advisory Board;
iii) the failure to produce the second bail application before the detaining authority;
iv) the failure to consider the detenu was already in judicial custody;
v) the non application of mind of the detaining authority as to the last document, namely, the letter of DRI dated 8-8-1990; and
vi) the delay in consideration of the request of the detenu to supply Hindi versions of documents.
9. Statement of objections are filed on behalf of respondents-1 and 2 both to the Writ Petition as well as IA-I, filed by the petitioner urging additional grounds.
Re-Ground - (i):-
10. It was contended by the learned Counsel for the petitioner that two representations were made by the detenu one to respondent-1 and the other to respon-dent-2. The representation made to respondent-2 was rejected on 23-10-1990 and the representation dated 4-10-1990 addressed to respondent-1 has remained unattended and not disposed of and as such the delay in considering the representations has vitiated the order of detention. In the objection statement in paras-3 and 4 to IA-I, the respondents have stated that the two representations were similar; they were addressed to the same person one by name and the other by his official designation. These representations forwarded by the 3rd respondent, were received in the COFEPOSA Section of the Ministry on 9-10-1990; were processed on 12-10-1990 by the Under-Secretary COFEPOSA Section and were put up to the first respondent on the same day. The first respondent considered these two representations carefully and forwarded the file with his recommendation to the Hon'ble Finance Minister on the same day. The Hon'ble Finance Minister rejected the said representations on 23-10-1990 and on the same day a communication was issued to the detenu about the rejection of his representation. 13th, 14th, 18th, 20th and 2Ist of October 1990 were closed holidays and that thus there was no undue delay in considering the representations of the detenu.
11. The learned Counsel for the petitioner submitted that the representations dated 4-10-1990 addressed to respondent-1 has remained unattended and the representation made to respondent-2, although received in COFEPOSA Section of the Ministry on 9-10-1990 had remained unattended on 10-10-1990 and 11-10-1990. Similarly nothing was done on 15th, 16th, 17th, 19th and 22nd of October 90, the delay in not considering the representation is not at all explained and hence the order of detention is vitiated, in support of his submission he placed reliance on the following authorities:
i) Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors., : 1990(25)ECC50
ii) Mahesh Kumar Chauhan alias Banti v. Union of India and Ors., : 1990CriLJ1507
iii) Harish Pahwa v. State of U.P. and Ors., : 1981CriLJ750
iv) Abdus Sukkur v. State of West Bengal, : [1973]1SCR680
v) Vijay Kumar v. State of J & K and Ors., : [1982]3SCR522
vi) Criminal Writ Petition No. 623/1990 (Bombay H.C)
vii) Criminal Writ Petition No. 26/1989 dated 19th September 1989
Sri Shylendra Kumar, Senior Central Government Standing Counsel on the other hand relies on:-
i) MADAN LAL ANAND v. UNION OF INDIA AND ORS.
ii) M. MOHAMMED SULTHAN v. THE JOINT SECRETARY TO GOVT. OF INDIA, FINANCE DEPT. AND ORS.
iii) Order in W.P.No. 35 of 1990 (HC) dated 20-6-1990 of the Division Bench of this Court.
In a series of decisions of the Supreme Courts it is held that the appropriate Government itself is bound to consider the representation as expeditiously as possible, on the ground that the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty--of a person is in perif, immediate action should be taken by the appropriate authorities. In the case of Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors. the Supreme Court in para-21 of the Judgment has stated thus:-
'21. True, there is no 'prescribed period either under the provisions of the Constitution or under the concerned detention law within 6. DD 6-11-1990 - Mohammed Iqbal Dawood v. A.K. Batabyal, Crl. W.P. No. 623 of 1990 7. Prabhakar Mahadev Pokale v. Union of India, Crl. W.P. No. 26 of 1989 10. Abdul Rahim v. State of Karnataka, W.P. (HC) No. 35 of 1990 which the representation should be dealt with. The use of the words 'as soon as may be' occurring in Article 22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.'
12. The Supreme Court in the case of Madan Lal Anand v. Union of India and Ors., : 1990CriLJ659 in para-38 of the Judgment has held thus:-
'38. It is clear from the above statement that there was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu. In Mst. L.M.S. Ummu Saleema v. B.B. Gujaral : [1981]3SCR647 , it has been observed that the time imperative can never be absolute or obsessive, and that the occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the instant case, the detaining authority has explained the delay in the disposal of the representation made by the detenu and, accordingly, the order of the detention cannot be rendered invalid on that ground.' (Underlining is ours)
13. In the case of M. Mohammed Sulthan v. the Joint Secretary to Govt. of India, Finance Dept. and Ors., AIR 1990 SC 2222 the Supreme Court in para-10 has observed thus:-
'Thus the time actually taken by the Central Government in considering the representation was six days. The said period of six days cannot, in our opinion, be regarded as unduly long. It is, therefore, not possible to hold that there was inordinate delay in the consideration of the representation of the petitioner by the Central Government and the detention of the petitioner cannot be held to be invalid on that basis.'
14. In the case of Abdus Sukkur v. State of West Bengal there was unexplained delay of 27 days in considering the detenu's representation. The State Government did not file additional affidavit explaining the delay in spite of the fact that the Court adjourned the case to enable the State Government to file an affidavit explaining the delay in considering the representation of the petitioner. It is under those circumstances the detention order was invalidated.
15. The case of Mahesh Kumar Chauhan alias Banti (supra) does not help the petitioner as on the facts of that case, as stated in para-5 of the Judgment there was absolutely no explanation for the delay occasioned on the part of the sponsoring authority in sending his comments till 11-9-1989 though the representation was sent for comments to the said authority on 25-8-1989 and it is that considerable delay at the hands of the sponsoring authority vitiated the order of detention.
The learned Counsel drew our attention to para-8 of the said Judgment which reads thus:-
'8. We hasten to say in this connection that in spite of the fact this Court in a series of decisions has repeatedly and consistently laid down in Rule in precise and clear terms that all, the procedural safeguards prescribed in under Article 22(5) of the Constitution of India should be scrupulously and strictly observed one of which is ingrained in our system of judicial interpretation, being that the detenu shall be afforded an earliest opportunity of making a representation against the validity of the order of detention clamped upon him and that representation should be considered and disposed of as expeditiously as possible.'
16. The observation made by the Supreme Court as extracted above is the firmly established judicial view based on long line of decisions. Whether in a given case the representation was disposed of as expeditiously as possible is a question for determination depending on the facts and circumstances of each case. Hence, there is no need to refer to other decisions cited by the learned Counsel for the petitioner in this regard.
17. The Division Bench of this Court in W.P.No. 35/ 1990 (HC) disposed of on 20-6-1990 has taken the view that the time taken in considering the representation by the Chief Minister from 23-1-1990 to 30-1-1990 and the communication given to the detenu on 2-2-1990 was not such a delay to warrant a decision that the further detention of the petitioner became illegal having regard to intervening holidays.
18. Thus the actual time of five days taken for considering the representation of the detenu in the case on hand cannot be said to be unduly long or inordinate delay was caused in considering the representation. In our opinion the representation has been considered and disposed of expeditiously within a reasonable time.
19. Hence the contention of the learned Counsel for the petitioner that the detention order is vitiated on account of the delay in considering the representations made by the detenu fails.
Re-Ground No. (ii):-
20. As to the failure to place the representation for consideration before the Advisory Board, the original records were placed before us for perusal. On factual verification we found that representation was placed before the Advisory Board for consideration. Under the circumstances the learned Counsel for the petitioner submitted that he would not press that ground. Hence it is unnecessary for us to consider the same.
Re-Ground No. (iii):-
21. The learned Counsel vehemently contended that non-placing of the second bail application which contained specific retraction of his earlier statement has vitiated the detention order. Although the first bail application was placed before the detaining authority it was not specific and clear as to the retraction.
22. The learned Counsel for respondents-1 and 2 submitted that the letter dated 31-7-1990 which was before the detaining authority contained retraction. Reading of the grounds of detention clearly indicates that the authority was aware of the retraction of confession. Hence non-placing of second bail application has not vitiated the detention order. He also placed reliance on the decision of the Division Bench of this Court in W.P.No. 151/1986 (HC) disposed of on 7-4-1987. In almost similar circumstances this Court in the said Writ Petition in para-5 has observed thus:-11. Mohanlal T. Rathod v. State of Karnataka, W.P. (HC) No. 151 of 1986
'The learned Advocate General on the other hand submitted that the fact of retraction of the voluntary statement was relevant but the non-placing of the bail application by itself did not affect the validity of the impugned order, non-placing of bail application loses its significance for the reason that the retraction in it is vague and, secondly in view of the retraction stated in the petitioner's first communication to the authority given on the very next day i.e., 31-5-1986 was the real retraction. What is relevant is the factum of retraction given on 31-5-1986 which was very much in the mind of the detaining authority for his subjective satisfaction before he formed an opinion to detain the petitioner, and as such non-mention of the bail application dated 30-5-1986 in the grounds of detention and the said application not being on record before the detaining authority does not have much significance. Admittedly there was only one retraction which was first stated in the bail application in a vague manner, but on the very next day i.e., 31-5-1986, the petitioner retracted his voluntary statement in a much more detailed manner. Therefore, the relevant material regarding the retraction by the petitioner was very much before the detaining authority, which has been referred to by it in its grounds of detention and considered. Hence, there is no merit in this contention.'
23. The learned Counsel for the petitioner In support of his arguments on the point, cited the following authorities:-
i) Sita Ram Somam v. State of Rajasthan And Ors., : 1986CriLJ860 the Supreme Court has observed that many material and relevant documents which would have influenced the mind of the detaining authority one way or the other were not placed before the detaining authority. As can be seen from paragraph-3 of the said Judgment, the contention was relevant facts which would have weighed the satisfaction of the detaining authority one way or the other were not before the detaining authority but in the instant case the relevant fact, namely, retraction of the confession made by the detenu was before the detaining authority when the impugned order was passed. Hence this case of Sita Ram Somam does not help the petitioner.
ii) The case in State of U.P. v. Kamal Kishore Saini, : AIR1988SC208 also does not advance the case of the petitioner any further. Reading of paragraph-7 on which reliance was placed clearly shows that it was a case of not placing vital material before the detaining authority. In the said case the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed subjective satisfaction did not find favour with the High Court. The Supreme Court while accepting the view of the High Court observed thus:-
'It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Asha Devi v. K. Shivaraj : 1979CriLJ203 and Gurdip Singh v. Union of India, : 1981CriLJ2 .' iii) The case of Ayya Alias Ayub v. State of U.P. and Anr., : 1989CriLJ991 in our opinion, has no application to the facts of the case on hand. The learned Counsel particularly drew our attention to para-13 of the Judgment at page 370. In that case the telegram which had a bearing on the complicity or otherwise of the petitioner in the alleged offence was not placed before the detaining authority. The petitioner in that case had taken the contention that he was taken into custody earlier at 8 p.m. on 18-2-1988 and his alleged offence at the scene of occurrence at 9.10 p.m. was concocted. Although there was some dispute as to when the telegram was despatched it could not be disputed that such a telegram was sent in which it was stated that the petitioner was taken into custody at 8 p.m. on 18-2-1988. On these facts, the Supreme Court has held thus:-
'What weight the contents and assertions in the telegram should carry is and altogether _. a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind with a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably had affected the decision whether or not to pass the order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality.'
24. In the case of M. Mohammed Sulthan v. the Joint Secretary to Government of India, Finance Department and Ors. the Supreme Court has ruled that the failure to produce documents which were not material, before the detaining authority would not vitiate the order of detention and that non-consideration of such documents by the detaining authority would not, therefore, impair the satisfaction arrived at by the detaining authority. See para-6 of the said Judgment at page-2224.
25. Thus, in our view, failure to place second bail application before the detaining authority did not vitiate the order of detention when the authority was aware of the retraction of the confession as can be seen from the grounds of detention. The first bail application Annexure-O and the letter dated 31-7-1990 Annexure-R also indicated as to the retraction which were very much before the detaining authority when the order of detention was passed.
Re-Ground No. (iv):-
26. Learned Counsel for the petitioner contended that the petitioner was already in judicial custody. The detaining authority has not applied his mind that the bail application of the detenu had been rejected on 4-8-1990. There was no material to state that the detenu's release on the bail was imminent. As such there was no need to use the law of preventive detention to detain the detenu. He further submitted even if the detenu was released on bail, the authorities could challenge the order releasing the detenu on bail in superior Courts. In this regard he relies on the following decisions:-
1) Ramesh Yadav v. District Magistrate, Etah and Ors., : 1986CriLJ312 was cited before us by the learned Counsel for the petitioner. In this decision it is held thus:-
'Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.' In the case on hand as can be seen from the grounds of detention and the material on record that the order of detention was passed on the ground that the detenu was likely to get bail and also considering his antecedents.
2) Vijay Kumar v. State of J & K. In this decision, their Lordships have taken the view that if the detenu was already in jail charged with serious offence and the order of detention did not indicate the awareness of the detaining authority that the detenu was already in jail and yet the impugned order was required to be made. As such the order of detention was invalid for non-application of mind. But in the instant case it is clear from the material on record that the detaining authority Was aware of the fact that the detenu was already in judicial custody. Therefore this decision is of no help to the petitioner.
27. The petitioner wanted to get support from, yet another decision in the case of Smt. Shashi Agarwal v. State of U.P. and Ors., In this decision also the Supreme Court has expressed that a citizen has right to move the Court for bail when he is arrested under the ordinary law of the land. The State could oppose grant of bail but he cannot be interdicted from moving the Court for bail by clamping an order of detention. Neither mere possibility of granting bail nor a bald statement that person would repeat his criminal activities would be enough to pass an order of detention. There must be something more to indicate that the detenu, if enlarged on bail would act prejudicially to the interest of the public order. In our view this case again does not help the petitioner from considering the facts, material and the grounds of detention.
28. Similarly, the other decision in the case of N. Meera Rani v. Government of Tamil Nadu and Anr., : [1989]3SCR901 is also not helpful to the petitioner because what is laid down in the said decision is that subsisting detention of the detenu by itself does not vitiate an order of detention. In a given case it has to be considered whether an order of detention is necessary to prevent the detenu from acting in any manner prejudicial to the maintenance of the public order or to the security of the state. In case when the detenu is already in custody the detaining authority must show its awareness to the fact of subsisting custody of the detenu while making the order, but, even so, if the detaining authority is reasonably satisfied on the material that there is likelihood of release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, order of detention can be made. In the case on hand, we find that the detaining authority was aware of the subsisting custody of the detenu and the authority has taken into consideration the possibility of the detenu being released on bail and that his detention was necessary keeping in view his antecedents and his likelihood of indulging in activities prejudicial to the public order in case of his release.
29. In the recent Judgment of the Supreme Court in the case of Kamarunnissa v. Union of India and Anr., 1990(4) J.T. SC 7 the Supreme Court in para-13 has observed thus:-
'13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose18. Judgments Today the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court. What this Court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the Counsel for The petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.'
In view of what is stated above by the Supreme Court we do not have any hesitation in rejecting the contention of the petitioner that the order of detention was invalid as the detenu was already in judicial custody and that the State could have opposed only the grant of bail.
Re-Ground (v):-
As to non-application of the mind of the detaining authority to the last document, namely, the letter of DRI dated 8-8-1990, the petitioner in para-11 of the petition states that the order of detention is vitiated for the reason that the last document, namely, the letter of D.R.I. dated 8-8-1990 to the detenu came into existence around 6 p.m. on 8-8-1990. Yet the same was received at Delhi on 9-8-1990 and was considered by the detaining authority. This shows that there was non-application of the mind to the material. In reply to these averments in para-11 of statement of objections the respondents-1 and 2 have stated thus:-
'11. Re-para-11: The D.R.I. authorities submit that after issue of reply dated 8-8-1990, to the detenu's retraction letter, sent a copy of the same by fax to the D.R.I. Head quarters, at New Delhi which was personally collected by an Officer who represented the case before the detaining authority on 9-8-1990. The document was before the detaining authority and was considered before the order of detention was passed. Hence averments contrary to the facts, are denied as untenable.'
In support of his submission the learned Counsel for the petitioner placed reliance on the decision in the case of Jai Singh and Ors. v. State of Jammu & Kashmir, : 1985CriLJ527 This decision in our view has no application to the facts of the present case. That was a case where non-application of the mind of the detaining authority was clear as the grounds of detention indicated they were verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. All that the District Magistrate did was to change the first three words 'the subject is' into 'you Jai Singh, s/o. Ram Singh, resident of village Bharakh Tehsil Reasi'. Further although the detenu was already in custody and made an application giving all the details as to when he was taken into custody and about the criminal case, the detaining authority did not show awareness of these facts before passing the detention order. Hence on the facts of that case their Lordships concluded that there was non-application of mind which vitiated the order of detention.
31. The learned Counsel relies on the Judgment of the Supreme Court in Umesh Chandra Verma v. Union of India and Anr., Crl.A. 878 of 1985 In that case the appellant was intercepted by the officers of the Directorate of Revenue Intelligence on the evening of 12-6-1985 and a large quantity of alleged contraband gold was recovered from him. After the interrogation for the whole day on 13-6-1985, he was formally arrested at 6 p.m. under Section 104 of the Customs Act and on the same night order of detention was passed. In that case the detaining authority purported to rely on the documents which ran upto 234 pages including arrest memo which was prepared at 6 p.m. on 13-6-1985. It is under the circumstances and facts of that case, the Supreme Court observed that it would certainly be difficult if not impossible for the detaining authority to make the order on the same night and that the detaining authority could not have possibly applied his mind to the voluminous documentary evidence which was placed before him. It is for that reason the order of detention was quashed. But in the instant case a copy of the reply dated 8-8-1990 to the detenu's retraction letter was sent by FAX to the D.R.I. head quarters which was personally collected by an officer and was before the detaining authority before the order of detention was passed. The relevant fact of retraction was already before the detaining authority. The copy of the letter dated 8-8-1990 was a one and half page letter. Hence it cannot be said that it was difficult for the detaining authority to apply its mind. Besides the said document under the circumstances of the case could not be considered as any material document.
32. The learned Counsel for the petitioner also placed reliance on the Judgment of the Madras High Court in W.P.No. 53/1988, in which reference is also made to the Criminal Appeal No. 878/1985 (supra). Even in that case application of mind to 40 documents running to 137 foolscap closely typed pages was considered. 21. DD 18-7-1989 - M.K.S. Abubakar v. Joint Secretary, W.P. No. 53 of 1988 Hence the said case also is of no assistance to the petitioner. Hence, we reject this contention also that there was non-application of mind of the detaining authority to the copy of the letter dated 8-8-1990 addressed to the detenu.
Re-Ground No. (vi):-
33. The last ground urged as to the delay in considering the request of the detenu to supply Hindi versions of documents. Two representations were made one on 20-8-1990 seeking Hindi version of documents and the other on 22-8-1990 seeking assistance of the Counsel. The petitioner in para-18 of the petition states that the order of detention is vitiated 'for the reason that the detenu's representation for Hindi version of the grounds of detention dated 20-8-1990 has not been considered expeditiously. Non furnishing of documents and delay in consideration of representation has rendered the detention illegal. Respondents-1 and 2 in para-18 of their objections statement have stated that the representation of the detenu for furnishing Hindi version of the documents has been considered expeditiously and replied. They have further submitted that the grievance of the detenu in this regard was illusory inasmuch as the detenu is fully conversant with English. Further, in the light of the fact that the detenu had been permitted to consult an Advocate at the earliest and that the detenu had made a detailed representation with the aid of the Advocate makes it clear that his right to make effective representation was in no way affected at all and that there has been full compliance with the requirement of Article 22(5) of the Constitution of India. The two representations dated 20-8-1990 and 22-8-1990 were received in the COFEPOSA Cell on 28-8-1990 and 30-8-1990. The representations seeking the assistance of the Counsel was allowed on 3-9-1990 and communicated on 5-9-1990. Representation seeking Hindi version was not one under Section 11 of the COFEPOSA Act for revocation of the order of detention. In the case of Kamarunnissa in para-14 of the said Judgment it is observed thus:-
'It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non supply has impaired the detenu's right to make an effective and purposeful representation.'
In the instant case since a detailed representation was made with the assistance of the Counsel, we hold that no prejudice is caused to the detenu by non-consideration of representation seeking Hindi version of documents. Hence this contention of the petitioner also fails.
34. In the light of what is stated and discussed above, none of the grounds that have been urged before us by the learned Counsel for the petitioner merits acceptance. This Writ Petition is liable to be dismissed and it is accordingly dismissed.