Sh. Om Parkash Sharma Vs. the Administrator, Delhi Administration and Others - Court Judgment

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conservation of foreign exchange and prevention of smuggling activities act, 1974 - section 8(c)there can be no general law that in every case where appearance of legal practitioners is barred either explicitly or by implication, assistance by a friend must be allowed. circumstances justifying the assistance by a friend have to be pleaded and established. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - 226 of the constitution he prays for the issue of a writ of habeas corpus claiming his detention to be vocative of the provisions of the aforesaid act as well as the provisions of arts. these were first, that the valuation report, which is the basis of the valuation of the contraband goods, was not given to the petitioner despite requests made to the administrator as well as the advisory board. the point in issue is whether the detaining authority could reasonably be satisfied on the material before him that the petitioner needs to be detained. state of west bengal, 1974crilj699 .perhaps, it may be correct to say that mere one infringing act cannot be a good basis for having a suspicion that the petitioner is indulging in smuggling activities but here the very factual basis of the contention is not correct.prakash narain, c.j.1. the petitioner, om parkash sharma has been detained by virtue of an order of detention passed under s. 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974. by this petition under art. 226 of the constitution he prays for the issue of a writ of habeas corpus claiming his detention to be vocative of the provisions of the aforesaid act as well as the provisions of arts. 21 and 22 of the constitution. we dismissed the petition and hereby record the reasons thereforee. 2. the petitioner visited hong kong in august 1981. he returned to india on august 15, 1981 by pan american flight which landed at palam, new delhi. he was searched but nothing was recovered. on august 18, 1981 one sunil dutt, earlier known as surinder pal sharma and working as leader with air india, came from bangkok to delhi. he was searched and some contraband goods were found in his custody. he was, accordingly, arrested. on further interrogation he implicated the petitioner in the alleged smuggling activity along with some others. the petitioner was accordingly, arrested on august 18, 1981 by the customs authorities. he was produced before a magistrate on august 19, 1981. he was also bailed out. during his interrogation the petitioner made certain statements and certain recoveries were made from his hose. on february 15, 1982 a show cause notice was issued to him by the customs authorities. the impugned order of detention was passed on may 24, 1982 and the petitioner was arrested and detained. he was served with the grounds of detention on may 28, 1982. the petitioner made two representations, one to the administrator of the union territory of delhi and the other to the central government from jail. the administrator rejected the representation on july 14, 1982. the central government had earlier rejected the representation made to it on july 8, 1982. the petitioner was produced before the advisory board on july 16, 1982 and on the advice tendered the detention was confirmed on august 3, 1982. 3. the petitioner has challenged his detention on various grounds but at the hearing only four grounds were pressed. these were first, that the valuation report, which is the basis of the valuation of the contraband goods, was not given to the petitioner despite requests made to the administrator as well as the advisory board. thereforee, the petitioner's right to make an effective representation was denied to him in violation of article 22(5) of the constitution. secondly, no inspection was allowed to the petitioner of the watch movements etc., alleged to have been recovered from sunil dutt or the watch, alleged to have been recovered from the petitioner's house. thirdly, the petitioner did not know what was the recovery made from sunil dutt. fourthly, the petitioner was denied assistance of a friend at the hearing of the advisory board despite request. 4. in our opinon, there is no force in any of the contentions raised by the petitioner. the valuation of the goods, as estimated by the customs authorities on seizure on august 18, 1981 as well as its market value, was clearly set out in ground (1). we are not concerned with the valuation as such of the contraband goods, alleged to have been seized. the point in issue is whether the detaining authority could reasonably be satisfied on the material before him that the petitioner needs to be detained. in our view, the basis of the valuation of the goods has absolutely no relevance. indeed, it is not shown to us how the basis of the valuation either estimated or what is stated to be the market value could make any difference in making an effective representation against detention. 5. with regard to the inspection, once again, we find there is absolutely no basis for urging this ground. the recoveries are not challenged. the petitioner has been implicated by the statement given by sunil dutt and what has been gleaned from investigations, which has all been disclosed in the grounds of detention supplied to the petitioner. 6. it is wholly incorrect on the part of the petitioner to contend that he did not know what was recovered from sunil dutt. a reading of the grounds on detention makes it clear. thereforee, on the third point also we find that the petitioner has no case. 7. a great deal of emphasis was placed by learned counsel for the petitioner on the refusal of the authorities concerned to let the petitioner have the assistance of a friend. there is no provision is the act which warrants it. reliance was placed by learned counsel for the petitioner on a. k. roy v. union of india, : 1982crilj340 . in para 95 of the report it has been observed that 'the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.' great reliance has been placed on these observations. in this case the supreme court was concerned with the validity of the national security ordinance, 1980 and certain provisions of the national security act. (65 of 1980) which replaced the ordinance. section 11 of the national security act lays down the procedure of the advisory board constituted under that act. sub-section (4) of section 11 in terms bars representation of the detenu through legal practitioners before the advisory board. it was in that context that their lordships made the observations in paragraph 95 of the report on which reliance has been placed. their lordships were not called upon nor did they comment upon the scope of clause (c) of s. 8 of the cofeposa which in terms gives a right of personal hearing to the detenu if he so desires and no more. thereforee, the decision in a. r. roy's case is of little avail. furthermore, the observations of the supreme court regarding assistance by a friend were made in a particular context and not so as to apply generally to all detentions and all proceedings before every advisory board. their lordships in fact stated the circumstances in which a detenu should be represented or should be allowed to be assisted by a friend. thereforee, circumstances justifying the assistance by a friend have to be pleaded and established. there can be no general law laid down that in every case where appearance of legal practitioners is barred either explicitly or by implication, assistance by a friend must be allowed. 8. faced with the above situation, mr. harjinder singh has taken an alternative stand. he contends that the petitioner's involvement, according to the grounds of detention, is only in one incident and, thereforee, it cannot be said that he is such a person who has to be preventively detained in order to prevent in from smuggling goods into india and indian currency out of india. reliance was placed on debu mahto v. state of west bengal, : 1974crilj699 . perhaps, it may be correct to say that mere one infringing act cannot be a good basis for having a suspicion that the petitioner is indulging in smuggling activities but here the very factual basis of the contention is not correct. the material before the detaining authority was the statement of the petitioner apart from the statements of the other persons. record shows that he went abroad a number of times and brought contraband worth rs. 1 lac. this may have been in one trip or more than one trip. on the material before him the detaining authority could come to the conclusion that he was the brain behind the entire operation in which all these persons were involved. 9. lastly, the petitioner contended that as a period of 9 months had elapsed between the incident of august 18, 1981 and passing and serving of the impugned detention order, the delay by itself would be sufficient to vitiate the satisfaction. further, there was noting alleged that there was any activity indulged in by the petitioner during these 9 months which would lead the detaining authority to conclude that the petitioner was continuing in his alleged smuggling activities. we do not find any force in this contention. the customs authorities, we find from an inspection of the records, sent the case for preventive detention of the petitioner after thorough enquiry on january 11, 1982. thereafter various authorities, including a screening committee, examined the matter. the examination itself shows full application of mind. there was thus no inordinate delay in passing the impugned order. 10. we, thereforee, discharge the rule and dismiss the writ petition. 11. petition dismissed.