Ashok Kumar Alias Shoki Vs. Union of India (Uoi) and anr. - Court Judgment

Excerpt:
- - 4 subhash nagar, phagwara and as a result of the search us $3910, uk 3185, canadian $ 6175, and some other foreign currencies as well as rs. the petitioner signed the search warrant as well as panchnama prepared after the search. a document of this type is of a vital nature and though it may not be specifically referred to in the grounds of detention the reference to the search and the supply of panchnama clearly brings in the search warrants also as one of the material documents on which the detention is based. a perusal of the ground of detention as well as the list of documents attached therewith, which was produced at the time of the arguments shows that searches were conducted and panchnamas were prepared in pursuance to the search warrants.orderh.k. sandhu, j.1. ashok kumar the detenu petitioner, has challenged the order of detention dated 16-3-1993 passed under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (the act for short) by filing this writ petition under article 226 of the constitution of india read with section 482 of the code of criminal procedure. the detention order annexure p-1 was passed with a view to prevent the petitioner in future, from acting in any manner, prejudicial to the augmentation of foreign exchange.2. the brief facts of the case, resulting in the passing of the detention order of the petitioner, as gathered from the grounds of detention are that on receipt of information that one manoj kumar alias goga brother of the petitioner was indulging.....

Judgment:
ORDER

H.K. Sandhu, J.

1. Ashok Kumar the detenu petitioner, has challenged the order of detention dated 16-3-1993 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act for short) by filing this writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. The detention order Annexure P-1 was passed with a view to prevent the petitioner in future, from acting in any manner, prejudicial to the augmentation of foreign exchange.

2. The brief facts of the case, resulting in the passing of the detention order of the petitioner, as gathered from the grounds of detention are that on receipt of information that one Manoj Kumar alias Goga brother of the petitioner was indulging in unauthorised sale and purchase of foreign exchange, the Officers of Enforcement Directorate Jalandhar searched the residential premises of the petitioner and his brother on 4-12-1992. The residential premises of the petitioner were situated in Street No. 4 Subhash Nagar, Phagwara and as a result of the search US $3910, UK 3185, Canadian $ 6175, and some other foreign currencies as well as Rs. 7,06,000/- and six loose sheets were recovered which were seized. This foreign exchange was recovered from a cavity in the wooden cup board fitted in the wall of the front room of the ground floor. On the same day statement of Manoj Kumar was recorded wherein he stated that he was carrying on trade in foreign exchange and he implicated his brother the present petitioner and some others. The petitioner also made a statement, wherein he stated that seizure memo had been prepared on the basis of the search of the house, which he constructed in the name of his wife Smt. Madhu but he did not give any further information. As a follow up action search of the business premises of M/s. Sareen Cloth Store, M/s. Sareen Cement Store, P.C.O. of Vinod Kumar and Sudhakar Verma and residential premises of Ved Kumar Sareen, Vinod Kumar and Sudhakar Verma was carried out. Documents and cash were recovered from some of these premises. Statements of Sandeep Kumar, Vinod Kumar Sareen and Pyre Lal were recorded who implicated the petitioner. When the petitioner was produced before the Magistrate, he retracted his statement. He was, however, allowed bail on the condition to appear before the Officers of the Enforcement at Jalandhar on every Monday. He along with Manoj, Sandeep and Vinod Sareen appeared before the Directorate, Jalandhar, on 14-12-1992, 21-12-1992 and 28-12-1992 but thereafter they did not appear before the concerned authority. He filed Criminal Writ Petition No. 790 of 1992 for quashing the detention order passed against him in pursuance to the search and investigation but that writ petition was dismissed on the ground, that by that time no detention order had been issued.

3. On 16-3-1993 order of detention Annexure P-1 was passed against the petitioner and he was arrested on 6-8-1993. On 21-8-1993 he made a representation against his detention to the detaining authority which was dismissed.

4. The petitioner made averments in the petition that on 28-4-1992 his premises were searched but nothing incriminating was recovered. His signatures were, however, obtained on blank papers. He was asked to come to Jalandhar on the next day and when he appeared there, he was kept in illegal confinement and he was ultimately arrested for having committed an offence under Section 8 of the Foreign Exchange Regulations Act. He was produced before the Chief Judicial Magistrate, Jalandhar where he moved an application for bail which was refused. He was allowed bail by the Additional Sessions Judge, Jalandhar. Apprehending his detention he filed Writ Petition No. 491 of 1992 wherein he made a prayer for stay of his arrest. This petition was allowed vide order dated 14-9-1992 and it was held that the detention order had been passed for extraneous reasons and for wrongful purpose. On 4-12-1992 officers of Enforcement Staff again came to his house and after search of the house they obtained Rs. 7 lacs and with that money they purchased foreign currency worth Rs. 6 lacs and planted the same on him. He was asked to appear before the authority concerned at Jalandhar, but in fact he was arrested from the spot and kept under detention. He was produced before the Magistrate on 5th December, 1992 and remanded to judicial custody. On 8th December, 1992 he was released on bail. His wife sent telegrams to officers of the Foreign Exchange Department at New Delhi alleging that no recovery in fact was made from her husband and the recovery made from one Sudhakar Verma was falsely foisted on him. He then filed another Writ Petition No. 790 of 1992'; apprehending that he was going to be arrested. As he was released on bail on both the . occasions it was on account of vindictiveness that the order of detention was passed, otherwise there was no material with the respondents on the basis of which bona fide satisfaction for ordering detention could be arrived at.

5. The petitioner challenged the detention order by way of Criminal Writ Petition No. 393 on the ground that the same was passed after a delay of more than three months and there was no case made out with regard to the alleged prejudicial activity. After the grant of bail, till the passing of the detention order, he had not indulged in any prejudicial activity. Previous detention order having been quashed the order of detention and order of quashing were essential material to be considered by the detaining authority and the same having not been placed before the detaining authority, there was no proper subjective satisfaction of the authority. This writ petition was dismissed on 19-10-1993. , The petitioner further alleged that in that writ petition he could not raise the wholesome challenge to his detention, which was illegal and unconstitutional. After the dismissal of ; that petition some fresh ground became j available for challenging the order so the present petition was filed by taken additional pleas.

6. The new grounds taken by the petitioner are mentioned in paras (L) and (N) of the petition. It was averred that a representation was made to the Advisory Board on 24-9-1993 a copy of which was Annexure P-3 wherein it was specifically stated that the ; petitioner was resident of Jalandhar and all his witnesses were staying at Phagwara, there- ! fore, Board meeting may be held at Jalandhar, so that he may produce the witnesses in rebuttal of the allegations made in the grounds of detention but the meeting of the i Board was not held at Jalandhar, due to which he was deprived of an opportunity to lead evidence in rebuttal of the allegations made against him, which was violative of Article 22(4) of the Constitution of India. In the grounds of detention names of Vinod Kumar Sarin, Mohinder Pal Shukla, Pyre Lai and S. K. Verma all residents of Phagwara had been referred and their statements were relied upon. They were to be produced as witnesses on behalf of the petitioner but that could not be done and in this way the detention order was rendered illegal. Next it was pleaded that a representation copy of which was Annexure P-4 was made to the Central Government for supply of search authorisations in respect of various premises mentioned in the grounds of detention and those search authorisations were mentioned in various Panchanamas referred to in the grounds of detention but the same were not supplied to the petitioner. As the documents were referred to in the grounds of detention so the same were required to be supplied to the petitioner and the rejection of the petitioner's prayer to have those documents, rendered the detention order illegal.

7. In the return filed by respondent No. 2 a preliminary objection was taken that earlier Criminal Writ Petitions Nos. 393 of 1993 and 602 of 1993 were dismissed, hence the present petition was also liable to dismissal. On merits it was pleaded that as a result of the search of the residential premises of the petitioner on 28-4-1992 foreign exchange, Indian currency and incriminating documents were recovered and seized. The petitioner signed the search warrant as well as Panchnama prepared after the search. He appeared before the Enforcement Officer at Jalandhar in response to the summons issued to him under Section 40 of the FERA and made true and voluntary statements. The petitioner indulged in unauthorised foreign exchange activities and after considering the facts of the case and arriving at subjective satisfaction, detention order was issued by the detaining authority. As regards supply of copies of the documents it was maintained that copies of all the documents relied upon by the detaining authority in passing the order of detention were supplied to the petitioner alongwith the grounds of detention but so far as the search authorisations referred to by the petitioner in ground (N) of the petition were concerned, the same were not relied upon by the detaining authority and there was no question of supplying copies of the same to the petitioner.

8. I have heard Mr. R.S. Randhawa, learned counsel for the petitioner and Mr. D. D. Sharma, learned counsel for the respondent and have perused the record.

9. The learned counsel for the respondent contended that the petitioner had assailed the detention order Annexure P-1 by filing Criminal Writ Petition No. 393 of 1993 on various grounds and that writ petition was dismissed on merits on 19-10-1993. The present writ petition whereby the same detention order was challenged was not maintainable and was liable to be dismissed on this short ground. The learned counsel for the petitioner on the other hand asserted that doctrine of constructive res judicata was not applicable to a petition assailing the detention order and if a new ground was available the petitioner had every right to approach the court and get the order quashed. It was further urged that if the principle of constructive res judicata is applied in the case of a habeas corpus the scope of the liberty of an individual will be considerably narrowed. In support of his argument he placed reliance on Lallubhai Jogibhai Patel v. Union of India, : 1981CriLJ288 . In this case it was observed :-

'The application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 on fresh grounds, which were not taken in the earlier petition for the same relief.'

10. In the abovementioned case the petitioner challenged the order of his detention by filing a Writ Petition No. 449 of 1980 in the Hon'ble Supreme Court which was dismissed by the court vide an order dated May 9,1980 but the reasons for that order were announced on August 4, 1980. After the dismissal of his petition the petitioner filed additional grounds on 21-7-1980. On 30-7-1980 he was informed that he may file fresh petition on those additional grounds arid the- subsequent petition came to be filed on additional grounds and was held to be maintainable. In the instant case also admittedly the earlier writ petition of the petitioner assailing the detention order was dismissed but the petitioner has now raised additional grounds and the petition is, therefore, not barred by the principle of constructive res judicata and is maintainable.

11. The petitioner assailed the detention order on numerous grounds but most of these grounds were taken in his earlier writ petition and the same were dealt with thoroughly and did not find favour with the court. The learned counsel for the petitioner now assailed the detection order only on the additional grounds taken by him. Firstly he contended that in pursuance to the detention order he was detained in jajil at Bhatinda. He had made a representation to the Central Advisory Board copy of which was Annexure P-3 wherein he stated that in the grounds of detention reliance had been placed upon the statements of Shri Vinod Kumar Sareen, Mohinder Pal Shukla, Pyre Lai and others who were all residents of Phagwara and they were witnesses on his behalf. It was difficult for him to bring them to Delhi and they could only be produced at Phagwara. He, therefore, requested that the Advisory Board may hold its meeting at Jalandhar so that he may produce those witnesses in rebuttal to the allegations made against him in the grounds of detention. It was contended that this plea of the petitioner was not considered and he was not given any opportunity to produce his witnesses, in rebuttal to the allegations made against him. The detention order was liable to be quashed on this score. The learned counsel placed reliance on the State of Punjab v. Sukhpal Singh, : 1990CriLJ584 . In this case the detention order of the detenu was set aside for non-production of the detenu before the Advisory Board at Chandigarh and for not making arrangement and payment for the expenses required to be incurred for arranging the presence of the detenu's witnesses to be produced before the Board at Aggartala. The appeal filed by the State of Punjab against the order passed in Criminal Writ Petition No. 2365 of 1988 was dismissed.

12. In the present case the petitioner had requested the Advisory Board to hold its meeting at Jalandhar so that he may produce his witnesses before the Board who were all residents of Phagwara. This fact is not denied that the petitioner's request was not conceded. It was however, asserted that the Advisory Board was not under any obligation to hold its meeting at a place to be specified by the detenu. This contention of the learned counsel for the respondent is correct. But when the detenu was confined in jail at Bhatinda he made a request for producing the witnesses named in the grounds of detention in order to refute the allegations against him. The Board should have considered that request and should have allowed an opportunity to the detenu to examine those persons. The rejection of the prayer made by the detenu did cause him prejudice in making an effective representation.

13. It was, further urged on behalf of the petitioner that in his representation Annexure P-3 the petitioner had made a prayer for the supply of various search authorisations, relating to the premises of different persons referred to in the grounds of detention and the Panchnamas which were relied upon by the detaining authority in arriving at its subjective satisfaction to detain the petitioner. Those documents were not supplied to him as a result of which he was debarred from making a purposeful representation. In para 3 of his representation to the Central Advisory Board, New Delhi dated 24-9-1993 copy of which is Annexure P-3, the petitioner requested that he may be supplied copies of the search authorisations in respect of the search made at the residential premises of Manoj Kumar Sharma, search of M/s. Sareen Cloth Store, Phagwara, search of business of M/s. Sareen Cement Store, Phagwara and various other searches referred to in the Panchnamas relied upon by the detaining authority. The petitioner also moved the President of India vide Annexure P-4 for supply of search authorisations on 27-9-1993. The receipt of this letter was acknowledged by the President's Secretariat vide letter Annexure P-5 dated 30-9-1993 but the documents were not supplied to the petitioner and his prayer was declined vide Annexure P-6 dated 20-10-1993. The grounds of detention Annexure P-2 showed that the detaining authority placed reliance on various searches conducted at various premises and seizure memos prepared in pursuance to those searches. No valid search could have been conducted, except in pursuance of a search warrant. The search authorisations were thus important documents which were required by the petitioner for making an effective representation and the denial of these documents vitiated the detention order.

14. It was urged on behalf of the respondent that search authorisations were not mentioned in the grounds of detention nor the same were relied upon by the detaining authority in order to arrive at subjective satisfaction, whether the detention order should be passed against the petitioner or not? Mere mention of the fact that certain searches were carried out in the course of investigation which had no relevance to the detention of the detenu did not cast an obligation on the detaining authority to supply copies of those documents and non-supply did not impair the detenu's right to make an effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenu merely on the ground that there is reference thereto in the grounds of detention cannot vitiate an otherwise legal detention order.

15. I have considered the respective contentions of the learned counsel for the parties and I am of the view that the contention of the learned counsel for the petitioner is valid. The law relating to supply of copies of documents to detenu has been summarised in the case of Mohd. Hussain v. Secretary to Government of Maharashtra, 1982 Cri LJ 1848 as follows:-

(a) the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detenu along with the grounds of detention;

(b)the documents which are not relied upon or do not form the basis of the detention order but which are merely referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu.

(c) however even such documents, if the detenu requests for the same have to be supplied to him, for whether they are relevant to his defence or not is for the detenu to decide and not for the detaining authority to judge.'

16. It is clear from the above summarisation that although the authorities are not under an obligation to supply to the detenu all documents which may be referred to in the detention order along with the grounds of detention they are bound to supply the same as and when asked by the detenu for making an effective representation. In the present case the detenu asked for supply of search authorisations which were referred to in the Panchnamas relied upon by the detaining authority but the same were not given to him. In M.M. Yusuf v. Union of India, Criminal Writ Petitions Nos. 324 and 325 of 1986 decided by Delhi High Court on 17-3-1987 search authorisations were held to be the documents and found to be in the category of material on which the detention is based. In this case it was held:-

'In other words, the search warrants are basic documents on the basis of which the searches, the result of which is relied upon, were conducted. A document of this type is of a vital nature and though it may not be specifically referred to in the grounds of detention the reference to the search and the supply of Panchnama clearly brings in the search warrants also as one of the material documents on which the detention is based.'

17. In Gurdeep Singh v. Union of India, Criminal Writ Petition No. 257 of 1988 decided by Delhi High Court on 7-10-1988 the decision of Division Bench of that court in the case of M. M. Yusuf (supra) was followed and it was held that non-supply of search authorisation warrants in time, to the detenu vitiated the grounds of detention.

18. A perusal of the grounds of detention Annexure P-2 shows that on 5-12-1992 Enforcement Directorate, Jalandhar searched the business premises of M/s. Sareen Cloth Store, Phagwara, residential premises of Ved Kumar Sareen, business premises of M/s. Sareen Cement Store and residential premises of Manoj Kumar Sharma, at Phagwara and some other premises and recovered documents and money. Similarly on 9-12-1992 residential premises of Mohinder Pal Shukla and other premises were also searched and documents were recovered therefrom. All these searches were taken into consideration by the detaining authority, so also the documents and other articles seized as a result of the searches and seizure memos prepared thereupon before arriving at a subjective satisfaction regarding the detention of the petitioner. A perusal of the ground of detention as well as the list of documents attached therewith, which was produced at the time of the arguments shows that searches were conducted and Panchnamas were prepared in pursuance to the search warrants. These searches and Panchnamas were considered by the detaining authority and were relied upon. It is correct that search warrants as such were not documents which were relied upon or which formed basis of the grounds of detention but still these are documents which were referred to by way of narration of facts in the grounds of detention and these were required to be supplied to the petitioner at his request. The prayer of the petitioner for supply of these documents was rejected without assigning any valid reason. I am, therefore, of the opinion that non-supply of the search authorisation warrants asked for by the petitioner caused him a prejudice in making a valid and effective representation and this vitiated the detention order Annexure P-1.

19. For the reasons recorded above, the order of detention Annexure P-1 cannot be supported and is liable to be set aside. The petition is, therefore, allowed and the order of detention is quashed. The petitioner be set at liberty forthwith unless required in some other case.