Parmeshwar Lal Karel and Vs. Union of India and ors. - Court Judgment

Excerpt:
customs - preventive detention - section 3 (1) of conservation of foreign exchange and prevention of smuggling activities act, 1974 - preventive detention not only covers cases of smuggling of goods but it covers cases of abetting of smuggling of goods as well - from nature of activity of smuggling syndicate as disclosed in petitioners' statements and circumstances of their arrest detaining authority justified in detaining them to prevent from abetting smuggling - inspire of restrictions imposed by bail petitioners were capable of continuing to abet smuggling. - - as this petitioner failed to produce any document in support of legal importation of the gold biscuits and the wrist watches, those goods were seized on the reasonable belief that those were smuggled and were liable to confiscation under the provisions of customs act and the import and export control act, 1947. the aggregate market value of the seized goods was assessed to be rs. 1987 before the customs officers in response to the summons issued to him under section 108 of the customs act, 1962, wherein he admitted that he had accompanied his friends, that is sushil kumar aggarwal and shyam sunder agarwal, to hong kong on 18th march, 1987. he further admitted that he knew fully well that they would purchase gold from hong kong and in pursuance of that mission gold biscuits were purchased by them in his presence. the statements of parmeshwar lal karel alleged to have been made by him on 25th march, 1987 not having been supplied, the petitioner was unable to make effective representation and, thereforee, the continued detention of that petitioner is bad. after giving our careful consideration, we reject the contention of the learned counsel for the petitioners that it ought to be read to cover the cases of abetting the smuggling of goods as well. ) was a member on analysis of the case law on the point held that :unless a valid law like the misa so provided, in our view a representation against the order of detention was not only to be made to the detaining authority but has also to be considered by it'.(22) thus it was observed in the said case that the representation against the detention order was to be dealt with by the detaining authority i.charanjit talwar, j. (1) this judgment disposes of criminal writ petition no. 3 of 1988 and criminal writ petition no. 25 of 1988 as common questions arise for consideration in both the petitions.(2) parmeshwar lal karel, who is the petitioner in criminal writ petition no. 3 of 1988, and sushil kumar aggarwal, who is the petitioner in criminal writ petition no. 25 of 1988, have been detained in central jail, dum dum, calcutta by virtue of two separate orders dated 4th june, 1987 passed by shri s. k. kohli, joint secretary to the government of india, specially empowered under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as the 'cofeposa'). the said orders were passed with a view to preventing them from smuggling goods and abetting the smuggling of goods. parmeshwar lal karel was detained on 5th june 1987 while he was on bail granted by the high court of calcutta. sushil kumar aggarwal, who had been arrested along with the first petitioner on 26th march 1987, however, was in judicial custody. the detention order was served on him on 8th june 1987. by these petitions for a writ of habeas corpus the petitioners pray for revocation of the said orders of detention.(3) the facts giving rise to the passing of the detention orders are common. they may be set out so far as they are relevant to highlight the alleged conspiracy between the petitioners and others.(4) parmeshwar lal karel, sushil kumar aggarwal and one sham sunder aggarwal, all holders of indian passports, arrived in a group at calcutta airport on 25th march 1987 from hong kong via bangkok by thai airways international fiight. they all opted for red channel for the customs clearance. the officers of customs posted at that airport noticed that although these passengers had arrived in a group, yet they reported to three different red channel counters for their clearance. sushil kumar aggarwal was interrogated by one of the intelligence officers in the reasonable suspicion that he was carrying contraband goods with him. on scrutiny of his passport, it was found that prior to this trip the said sushil kumar aggarwal had made another visit to hong kong on 31st january 1987 and had returned to calcutta on 4th february 1987. the baggage and person of sushil kumar aggarwal were searched. as a result of the search of his bag four wrist watches of foreign origin, which were secreted in the inner side of a trousers with adhesive tapes, were recovered. some documents were also recovered from his possession containing miscellaneous handwritten accounts and a chit of paper showing transaction of u. s. $ 13000. on interrogation, sushil kumar aggarwal, eventually confessed to having eight gold bars secreted in his rectum. he (sushil kumar aggarwal, petitioner in cr. w. no. 25 of 1988) further disclosed that two of his associates, parmeshwar lal karel (petitioner in cr. w. no. 3 of 1988) and shyam sunder aggarwal had also travelled with him on the same flight on 25th march, 1987; that the figure shown in the chit indicated the conversion of u. s. s 13000 into hong kong dollars and the cost of eight gold bars in hong kong dollars. he further disclosed that the accounts shown in the handwritten paper indicated joint expenses incurred during the trip and the contributions made by each of them.(5) thereafter, sushil kumar aggarwal, in the presence of independent witnesses and customs officers, voluntarily ejected through his rectum three packets containing eight gold biscuits with foreign marking of ten tolas each, weighing in all approximately 932.80 grams. as this petitioner failed to produce any document in support of legal importation of the gold biscuits and the wrist watches, those goods were seized on the reasonable belief that those were smuggled and were liable to confiscation under the provisions of customs act and the import and export control act, 1947. the aggregate market value of the seized goods was assessed to be rs. 2,43,000. the search list showing the detailed inventory of those goods was handed over to sushil kumar aggarwal under a receipt.(6) parmeshwar lal karel, the other petitioner and shyam sunder aggarwal were in the meanwhile intercepted while they were proceeding to the exit gales of the arrival halls after clearance of their baggage on payment of customs duty. on search of the baggage and person of shyam sunder agarwal in the presence of independent witnesses, three wrist watches of foreign origin were recovered. these had been clandestinely kept by him in the inner side of a trouser packed in his baggage. on interrogation by the customs officers, he (shyam sunder agarwal) also confessed to having secreted gold in his rectum, and, subsequently, in the presence of independent witnesses and customs officers voluntarily ejected the same. the three gold biscuits of ten tolas each and one piece of gold tablet of one gram having foreign markings on all collectively weighed 350.80 grams (approximately). the goods were seized on the reasonable belief that those were smuggled and liable to confiscation. the travel documents and wrapping papers in which the gold had been wrapped along with the adhesive tapes etc. were also seized, and a copy of the list of the seized goods was duly handed over to him.(7) the baggage and person of parmeshwar lal karel (petitioner in cr. w. no. 3 of 1988) were also searched in the presence of independent witnesses. it was found that this petitioner had kept concealed in his baggage five wrist watches of foreign origin. the manner of concealment of the watches was the same as adopted by sushil kumar aggarwal and shyam sunder aggarwal. the goods were seized under the provisions of the customs act. the inventory of the goods and the documents seized was handed over to this petitioner.(8) on 25th march, 1987 sushil kumar aggarwal made a detailed statement under section 108 of the customs act before the customs officers wherein he admitted the recovery of gold from his possession. he further disclosed that during the second week of march 1987 he had four of his friends, namely, parmeshwar lal karel, shyam sunder agarwal, vijay kumar verma and prakash kumar agarwal decided to create a fund for smuggling gold bars from hong kong to india to earn profit, and accordingly, an amount of rs. 2,30,000 was collected. all of them contributed rs. 50,000 each, with the exception of parmeshwar lal karel, who contributed only rs. 30,000 for the above said joint venture. in his statement, sushil kumar aggarwal further stated that he along with vijay kumar verma contacted one ramdayal sharma of 37, cotton street, calcutta, who, on exchange of the above money, gave him one typed paper measuring the size of a five-rupee note whereupon he (sharma) wrote 'rs. 2,30,000 owner dubai exchange, shop no. 47, chungking mansion, hong kong' and instructed him to hand over the said paper, which was presumed to be a hundi, to the owner of m)s. dubai exchange at that address. on 18th march, 1987 sushil kumar aggarwal, parmeshwar lal karel (petitioners herein) and shyam sunder agarwal left calcutta for hong kong via bangkok with the said hundi. at hong kong and also at bangkok the three of them shared common rooms. in hong kong shyam sunder agarwal met the owner of m/s. dubai exchange and handed over the said hundi, who, in turn, gave him hong kong dollars equivalent to rs. 2,30,000 against it. on 23rd march. 1987 he purchased eight gold bars at the cost of hong kong dollars 95,584.00. shyam sunder agarwal also purchased gold bars, but he (sushil kumar aggarwal) did not know whether parmeshwar lal karel purchased any gold bars. he further stated that on 24th march, 1987 in his hotel room he made three separate packets of gold bars and on 25th march, 1987 before departure he pushed the three packets of gold bars inside his rectum. as regards the documents, sushil kumar aggarwal admitted that the document marked at page 6 of the documents recovered from him was written by the owner of m/s. dubai exchange, hong kong, showing the amount of conversion of u.s. $ 13,000. he further admitted that the paper in his handwriting contained the details of expenses and individual accounts of their contributions and purchases including that of the gold bars.(9) parmeshwar lal karel (petitioner in criminal writ no. 3 of 1988) made a statement on 26th march. 1987 before the customs officers in response to the summons issued to him under section 108 of the customs act, 1962, wherein he admitted that he had accompanied his friends, that is sushil kumar aggarwal and shyam sunder agarwal, to hong kong on 18th march, 1987. he further admitted that he knew fully well that they would purchase gold from hong kong and in pursuance of that mission gold biscuits were purchased by them in his presence. he further stated that they stayed in the same room at chung king mansion in hong kong and that those gold biscuits were wrapped by sushil kumar aggarwal and shyam sunder agarwal with carbon papers etc. in his presence and that they put the gold biscuits inside their rectums, just before leaving for the flight. in the course of interrogation by the customs officers, he admitted that he had financed rs. 30,000 for buying the gold in question and that it was brought after consulting him and that after disposal of the same at calcutta he was to share the profit.(10) the petitioners herein and shyam sunder aggarwal were arrested under section 104 of the customs act and were produced before the judicial magistrate, north, 23 paraganas, calcutta, on 26th march, 1987, who remanded them to judicial custody till 10th april, 1987. the period of the custody was extended from time to time. parmeshwar lal karel was granted bail by the calcutta high court on 22nd april, 1987. shyam sunder agarwal was also granted bail by that court on 18th may, 1987. sushil kumar aggarwal was granted bail by the chief metropolitan magistrate, barasat, on 26th may, 1987. all of them were granted bail subject to fulfillment of certain conditions.(11) while under judicial custody at dum dum, central jail calcutta. sushil kumar aggarwal made a further statement on 9th april, 1987 that he had smuggled gold on earlier occasion when he had gone to bangkok on 31st january 1987 and re- turned to calcutta on 4th february, 1987. the modus operandi of smuggling gold weighing 23 tolas during that trip was the same as adopted in the present case.(12) parmeshwar lal karel, the other petitioner, also made a statement while in judicial custody on 9th april, 1987 wherein he, inter alia, stated that he had paid for his ticket and f.t.s's and his share for the trip to bangkok and hong kong. in bids further statements dated the 21st april, 1987 and 15th may. 1987 he confirmed his earlier statements dated 26th march, 1987 and 9th april, 1987.(13) the petitioners have challenged their detention orders on various grounds, but during the course of arguments only the following pleas were pressed :- (a)that the detention order passed against shyam sunder agarwal, a co-detent having been quashed by this court in criminal writ petition no. 411 of 1987, the impugned detention orders are liable to be set aside. (b)that one of the documents relied upon, viz. the statements of parmeshwar lal karel alleged to have been made by him on 25th march, 1987 not having been supplied, the petitioner was unable to make effective representation and, thereforee, the continued detention of that petitioner is bad. (c)that the representation filed by parmeshwar lal karel having been considered by another detaining authority and not by shri s. k. kohli, the detention order is liable to be set aside. (d)that the detaining authority was not justified in passing the detention order as the incident of 25th march, 1987 was a solitary incident of smuggling. (14) so far as the first ground is concerned, reliance by learned counsel for the petitioners is on the judgment of this court in shyam sunder agarwal v. union of india & others (criminal writ no. 411 of 1987) decided on 2nd december, 1987 (1) by a learned single judge. we have noticed above in the beginning that the impugned orders in these cases before us were passed with a view to preventing the detenus 'from smuggling goods and abetting the smuggling of goods'. in the cited case the judgment proceeds on the basis that 'the order of detention was passed with a view to preventing him from smuggling goods'. malik sharief-ud-din, j. while holding that in view of the organized racket started by that petitioner it was possibly a fittest case where detention with a view to prevent the petitioner from smuggling was absolutely warranted, however, observed that the conditional order of bail passed by the high court of calcutta had 'practically made it impossible for the petitioner to leave his place of residence and thus there was no scope for him to go abroad and smuggle goods'. as this aspect had not been taken into consideration by the detaining authority, it was held that the detention was vitiated. the petition was allowed and the order of detention passed against that detenu was quashed.(15) in our view the ratio of the said judgment is not applicable to the cases of preventive detention where the detenus have been detained with a view to preventing them from abetting the smuggling of goods. admittedly, in the present cases, the passports held by the petitioners were seized by the concerned authority and they had been asked to report to the investigating officer twice a week for a period of one month from the date of release on bail and thereafter whenever called upon to do so. the conditions imposed in the bail orders were quite strict and thereforee it can be urged that the petitioners were prevented from going abroad. however, from the nature of the activity of the smuggling syndicate as disclosed in their statements and the circumstances under which the members of the racket were caught, the detaining authority was justified in reaching the satisfaction that with a view to preventing them from abetting the smuggling of goods they ought to be detained whatever be the conditions of bail. the judgment cited, we note, proceeds on the basis that the conditions imposed by the high court of calcutta while directing the release of the detenu in the said case prevented him from smuggling of goods. after giving our careful consideration, we reject the contention of the learned counsel for the petitioners that it ought to be read to cover the cases of abetting the smuggling of goods as well. the inference of the detaining authority that the petitioners herein inspire of the restrictions imposed were capable of continuing and would engage in and were likely to abet the smuggling of goods cannot be held to be unjustified.(16) now turning to the second ground, the submission on behalf of parmeshwar lal karel was that after going through the list of documents annexed with the grounds of detention he found that a statement dated 25th march, 1987 allegedly made by him had been relied upon but a copy was not supplied. it is urged that earlier to the passing of the detention order by a representation dated the 3rd april, 1987 he had already requested the collector of customs (preventive) to direct the customs authority to furnish him a copy of the statement which he had made before the authority. by a letter of 28th april, 1987 this petitioner was supplied with a copy of the statement made by him before the authority on 26th march, 1987. the contention is that the copy of the statement dated 25th march, 1987 not having been supplied to him he was prevented from making an effective representation. from the counter affidavit it is clear that the statements of sushil kumar agarwal, the other petitioner and shyam sunder agarwal were recorded on 25th. march i987. it is averred therein that the petitioner had voluntary made a statement on 26th march, 1987. for our satisfaction, we went through the record produced by the respondents and found that parmeshwar lal karel (petitioner in civil writ no. 3 of 1988) had in fact made a statement in the early hours of 26th march, 1987. the statements of others were recorded on 25th march, 1987. there is no statement dated 25th march, 1987 of this petitioner. the petitioner has himself put the date 26th march, 1987 under his signatures.(17) learned counsel for the petitioner however submits that it is not permissible for a court to go through the records of the respondents to fish out a fact in their favor. the contention is entirely misconceived. admittedly prior to the passing of the detention order the customs authority did hand over a copy of the statement dated 26th march, 1987 to the petitioner. in the list of reliance, a reference to his statement dated 25th march, 1987 is obviously wrong as he had made no statement on that date although the statements of others were recorded on the said date i.e. 25th march, 1987. we are of the opinion that the clerical error in the list of reliance which list was prepared after the supply of the copy of the statement dated 26th march, 1987 cannot be held to have vitiated the impugned order. we are fortified in our view by a recent judgment; in re : state of gujarat v. sunil fulchand shah and another, criminal appeal no. 80 of 1988 decided on 8th february, 1988 (2) wherein the supreme court has held that : 'the error in the description of the document in the grounds cannot in the situation be said to have vitiated the order'.(18) their lordships came to the conclusion after pursuing the original file dealing with the detenu's case and rejected i he ground taken that the misdescription of a document in grounds of detention could be made the basis of quashing the detention order.(19) the third ground of attack has been called out from the averments made in paragraph 7 of the counter affidavit. in paragraph 7 of the petition it has been submitted that the petitioner was not given the documents requested by him vide his representation dated the 15th april, 1987 and was thus deprived of making an effective representation. the respondents have denied that a representation of that date i.e. 15th april. 1987 referred to in that paragraph was ever received by them. however, it is admitted that a representation dated 15th july, 1987 was received in the ministry's office on the 21st july, 1987. while explaining the action taken on the representation it was submitted that the comments of the sponsoring authority were called for and were received on the 23rd july. 1987. the representation was put before the detaining authority on the 24th july, 1987. it is submitted that the detention order was passed by shri s. k. kohli but as he was sick and on leave, the representation was placed before the additional secretary who is also specifically empowered officer under cofeposa. on 28th july, 1987 the representation was considered and rejected. it has been averred that 25th and 26th july were holidays.(20) the petitioner has not annexed a copy of the representation dated the 15th april, 1987 as referred to in paragraph 7 of the petition. according to the respondents, the only representation which was received by them was dated the 15th july, 1987. this fact is not being challenged by the counsel for the petitioner, however, the plea is that representation could only be placed before shri kohli and not before the additional secretary who although specifically empowered officer yet was not the detaining authority of the petitioner.(21) in support of this contention that the representation of the detenu is to be placed before that very officer who had passed the detention order, learned counsel cited a division bench judgment of this court passed in criminal writ no. 52 of 1979 which was decided on november 6. 1979. in the said case the detention order was passed by the chief secretary of the delhi administration but the representation had been placed before the administrator of delhi. it was contended in the said case that it was the detaining authority and the detaining authority alone who could consider the representation against the order of detention. while upholding the submission made on behalf of the detenu in the said case, the division bench of which one of us (charanjit talwar, j.) was a member on analysis of the case law on the point held that : 'unless a valid law like the misa so provided, in our view a representation against the order of detention was not only to be made to the detaining authority but has also to be considered by it'.(22) thus it was observed in the said case that the representation against the detention order was to be dealt with by the detaining authority i.e. the chief secretary of the delhi administration and not the administrator of delhi, the authority superior to him. it has not been held in the said case that the representation ought to have been dealt with by that particular empowered individual who had passed the detention order. in our view in the event of the chief secretary having been transferred or going on leave or for some other unavoidable reasons is not available the incumbent for the time being is empowered to dealt with the representation. in the present case the respondents have pointed out that the representation dated the 15th july, 1987 was placed before another empowered officer because of illness of shri s. k. kohli. it is clear that the officer who dealt with the same on 28th july. 1987 was empowered under section 3(1) of the cofeposa to pass, the impugned detention order. there- fore in the circumstances explained he was empowered to deal with the representation also. we reject this contention.(23) the next ground taken is also without substance. the arguments on behalf of parmeshwar lal karel that the solitary incident of smuggling cannot be made the basis of preventive detention is sought to be supported by some judgments of this court. it is submitted that the provisions of preventive detention cannot be made instrument of oppression and the order should be passed as a last resort fay the authority concerned. the reliance is on (1) hira lal v. m. v. n. rao and another (crl. w. 107/84) decided on 23rd october. 1984(3) and (2) suresh chand srivastava v. union of india (crl. writ no. 100187) decided on 15th november, 1934/4)(24) the plea of parmeshwar lal karel is that the respondents do not allege that he had ever tried to smuggle goods on any earlier occasion or that he was such a type of person who would continue to violate the provisions of law if he was not preventively detained. mr. kochhar learned counsel for the petitioner submitted that the petitioner's detention has been ordered only to punish him. thus, the action being punitive, the impugned order is liable to be struck down. he further submitted that the solitary incident of 25th march. 1987 wherein this detenu was found in possession of just a few watches but not gold as in the case of others did not make him such. a desperate character who would continue to indulge in smuggling activities inspire of the strict conditions of bail imposed on him by the calcutta high court. it is urged that his passport having been seized he could not longer go abroad to indulge in smuggling and thereforee, the further allegation that he was likely to abet in smuggling of gold could not be said to have been passed on subjective satisfaction but on mere surmises.(25) it can no longer be questioned that from a solitary incident it is open to the detaining authority to come to a legitimate inference that the person was indulging in smuggling of gold. (sec shiv ratan makim v. union of india & others, : 1986crilj813 in that case also on a solitary incident the detention order was passed against shiv rattan makim on whose search two pieces of foreign marked gold were recovered by the customs officer. in his statement made he had disclosed that he had joined a gang engaged in purchase and sale of foreign marked gold. the supreme court while negativing a similar contention urged before us held that : 'the facts stated by the petitioner in his written statement could legitimately give rise to the inference that the petitioner was a member of a smuggling syndicate and merely because only one incident of smuggling by the petitioner came to light, it did not mean that this was the first and only occasion on which the petitioner tried to smuggle gold. there can be no doubt that having regard to the nature of the activity and the circumstances in which the petitioner was caught smuggling gold and the facts set out by him in his written statement, the second respondent was justified in reaching the satisfaction that the petitioner was engaged in smuggling gold and that with a view to preventing him from smuggling gold, it was necessary to detain him'.(26) the above observation applies equally to the facts of the present case. the cases cited are of no help as in the present cases the inference that the petitioner and others had formed a syndicate and were engaged in an organized manner in smuggling of contraband goods was justified.(27) on behalf of the other petitioner, namely, sushil kumar aggarwal his learned counsel mr. sunil mehta while adopting the arguments of mr. kochhar, submitted that the arrest memorandums of the detenus which would have shown the exact time of arrest were relevant documents and ought to have been placed before the detaining authority. there is no force in this contention also. in paragraph. 13 of the grounds of detention it has been stated that after arresting the three said persons i.e. sushil kumar aggarwal, shyam sunder agarwal and parmeshwar lal karel under section 104 of the customs act, 1962, they were produced before the chief judicial magistrate on 26th march, 1987. we do not think that the arrest memorandums under section 104 of the customs act were material documents which could have affected either way the mind of the detaining authority. we agree with mr. sat pal, learned counsel for the respondents that in the facts and circumstances of the present cases, the exact time of arrest of the petitioners was not a relevant factor for the detaining authority to keep in mind.(28) for the reasons stated above, we are unable to agree with the learned counsel for the petitioners that the impugned detention orders are liable to be quashed or the continued detention of the petitioners is not in accordance with law. the petitions are dismissed. the rule is discharged.