Harwinder Singh Vs. Union of India and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/699680
SubjectCriminal;Customs
CourtDelhi High Court
Decided OnNov-02-1993
Case NumberCriminal Writ Petition No. 342 of 1993
Judge S.C. Jain, J.
Reported in1993IVAD(Delhi)578; 54(1994)DLT723
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1)
AppellantHarwinder Singh
RespondentUnion of India and ors.
Advocates: Sangeeta Nanchaha and; N.K. Handa, Advs
Cases ReferredNatvarlal Shah v. Union of India and Others
Excerpt:
a) the case focused on the delay in passing the order of detention - the concerned detenue was also charged under section 132 read with section 135 of the customs act, 1962 - it was noticed that the order of detention was passed on the next day from the date on which, the detenue was released on bail by additional session judge and already there was delay of already three months from the date of arrest- in view of the circumstances, it was ruled that order of detention would not be interfered withb) it was ruled that there would be no interference with the order of detention merely on the ground that the documents pertaining to it were not supplied in 'gurumukhi' or hindi language - the detenue was the student of khalsa college, amritsar and the contention that he did not knew english language was baseless - - 50,000 with one surety in the like amount. it was incumbent upon the detaining authority that the representation of the petitioner was dealt with continuously till its final disposal and communication thereof to the detenu and their failure to do so rendered the impugned detention order illegal and void.s.c. jain, j.(1) the facts giving rise to this writ petition are that the petitioner/detune was intercepted at the igi airport, new delhi, on his arrival from dubai and as a result of search of his baggage, 2913.500 grams of gold of 24carat purity of foreign origin valued at rs. 11,53,746.00 (m.v.) were recovered from his possession. the statement of the petitioner/detenu was recorded under section 108 of the customs act wherein he stated that in his suit case there was a false cavity which was used for exporting foreign currency to dubai on 5.1.93. he also admitted about the recovery of the said contraband gold from him. he has alsoadmitted that he had been going abroad and was involved in smuggling activities earlier also. he was arrested and produced before the a.c.m.m., who remanded him to judicial custody. on 3.3.93 a complaint was made against him under section 132 and 135(1)(a) of the customs act. on 15.4.93 he was granted bail by the learned additional sessions judge on his furnishing a personal bond in the sum of rs.50,000 with one surety in the like amount. however, on 23.4.1993 the impugned detention order being f. no. 5/15/93/home (p-ll) was passed by the competent authority of the national capital territory of delhi with a view to preventing him from smuggling goods in exercise of the powers conferred by section 3[l] of the conservation of foreign exchange and prevention of smuggling activities act,1974.(2) this detention order has been challenged by this detenu on variousgrounds. the first contention is that he only understands gurmukhi/hindi language and that the grounds of detention were not supplied in.gurmukhi or hindi language and thereforee, he could not make an effective representation,rather he sent two representations on 28.4.93 - one addressed to the detaining authority and the other to the central government-demanding the grounds of detention in gurmukhi or hindi languages known to him so as to file an effectiverepresentation, but no reply was received by him. according to the learned counsel, this amount? to violation of his fundamental right as enshrined in article 22 of the constitution.(3) the second contention raised by the learned counsel is that the sponsoring authority did not place before the detaining authority the most vital and material documents which could have influenced the mind of the detaining authority one way or the other at the time of passing of the impugned detention order, i.e. the retraction letter dated 22.1.93 and that of 1.2.93; and the bail bond dated 22.4.93.the said documents were not supplied to the detenu despite the fact that he made a specific request for the supply of the same vide his representation dated 13.5.93.(4) another contention raised by the learned counsel for the petitioner is that the incident was of 8.1.93 and the detention order was passed only on 23.4.93. he submitted that the long and undue delay in passing the order of detention snatched the nexus between the activity alleged and the activity sought to be curbed bypassing the impugned order of detention and on this ground also the detention order has become illegal and void. it was incumbent upon the detaining authority that the representation of the petitioner was dealt with continuously till its final disposal and communication thereof to the detenu and their failure to do so rendered the impugned detention order illegal and void.(5) the last submission made by the learned counsel for the petitioner is that the detention of the petitioner is based on a single solitary incident and there is no material to suggest that he has such inclination, tendencies and potentialities or propensity which can give rise to a reasonable apprehension of the prejudicial activity being repeated by him in future. thereforee, subjective satisfaction of the detaining authority that the detenu unless prevented will continue to engage himself in smuggling goods is vitiated and has thereby rendered the impugned detention order illegal and void.(6) reliance has been placed by the learned counsel for the petitioner on various decisions of this court being om parkash srichand kukreja v. state : 44(1991)dlt413 ; nisar ahmed v.union of india & ors [cr.w.p. no. 501 of 1990decided on 31/05/1991]; varinder singh batra v.union of india and others[cr.w.p. no. 45 of 1993 decided on 13/08/1993]; and mohammed salim khatriv. union of india and others [cr.w.p.no. 119of 1993] in support of her contentions raised during the course of the arguments.(7) learned additional standing counsel, mr. n.k. handa strongly opposed this writ petition and drew my attention towards the counter affidavit filed by mr.m.u. siddiqui, deputy secretary [home], govt of national capital territory ofdelhi. according to the learned counsel in the voluntary statement made by the petitioner/detenu recorded under section 108 of the customs act the detenu had stated that he was a student of b.a. ii year in khalsa college, amritsar. in view of that it could not be lived that the petitioner was not familiar with the englishlanguage. in the said statement he had also admitted that there was a false cavity in his suit case from which the contraband gold was recovered and this false cavity was used by him earlier on 5.1.93 for exporting foreign currency to dubai.according to the learned counsel, a scrutiny of the petitioner's passport revealed that he went abroad thrice for very short duration. keeping in view the modus operandi to smuggle gold coupled with frequent visits abroad and his admission of involvement in smuggling activities earlier also, the detaining authority arrived at the conclusion that the petitioner has the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he is likely to indulge in the smuggling activities in future. learned counsel submitted that the detention order is valid and legal.(8) counsel for the respondents further submitted that the representations received on behalf of the petitioner were duly dealt with and rejected. he stated that the documents relied on by the detaining authority were supplied to thedetenu. there has not been any delay in passing the detention order. he has relied upon the decision of rajendra kumar natvarlal shah v. union of india and others{ : 1988crilj1775 j wherein it was held by hon'ble supreme court that even the unexplained delay [which was 5 months in that case] in passing the detention order under the cofeposa would not be sufficient to vitiate the order, if the grounds were not stale and the nexus between the grounds and the order of detention still existed.(9) according to the learned counsel, none of the grounds taken by this detune in this writ petition are helpful to him for quashing the detention order which is legal and valid. he also pointed out that the representation of the petitioner was received on 19.5.93 which was examined in the branch and put up before the detaining authority on 25.5.93 and was considered and rejected by the detaining authority on 26.5.93 and served on the petitioner on 28.5.93. it cannot be said that the representation was not dealt with expeditiously and was not disposed of.(10) as far as the delay in passing the detention order is concerned, this petitioner was arrested on 8.1.93. he was released on bail by the a.s.j. on 22.4.93.the impugned detention order was passed on 23.4.93. can the delay of about 3months in passing the detention order be said to be fatal in the present circumstances of the case the answer is 'no'. in the case of rajendra kumar natvarlal shah v. union of india and others [ supra] wherein it was held by hon'blesupreme court that even the unexplained delay [which was 5 months in that case]in passing the detention order under the cofeposa would not be sufficient to vitiate the order, if the grounds were not stale and the nexus between the grounds and the order of detention still existed.(11) in this case it has come in the statement of detenu itself recorded under section 108 of the customs act, which he retracted later on as is being done in everycase, that he travelled abroad three times earlier within a gap of two months and stayed there only for one day on two occasions and for three days on third occasion.he admitted that he had brought gold earlier in the months of september andnovember. he had also admitted that the false cavity in the suit case was used by him for exporting foreign currency to dubai on 5.1.93 and the contraband gold which was recovered was secretly concealed in this suit case. what more is required for the subjective satisfaction of the detaining authority for passing the detention order has not been explained by the learned counsel for the petitioner.the modus operandi to smuggle gold coupled with frequent visits abroad and his admission of involvement in smuggling activities earlier, the detaining authority arrived at the conclusion that the petitioner has the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he is likely to indulge in the smuggling activities in future.(12) regarding the non supply of the documents and grounds of detention in gurmukhi/hindi language, it has come in the statement of this detenu under section 108 of the customs act that he was a student of b.a. ii year in khalsacollege, amritsar. in view of this fact, it cannot be said that he did not know english language. regarding the non supply of the documents, it has come in the affidavit of mr. m.u. siddiqui, deputy secretary (home), delhi administration in para xii that the detention order was passed on the material placed before the detaining authority and documents relied upon were supplied to the petitioner. copy of the proposal for detention was not supplied to the petitioner as it being an interdepartmental communication, was not be supplied and the detaining authority was of the view that the supply of the proposal to the petitioner would not be in the public interest. even otherwise, the representations sent by this detenu were immediately dealt with continuously and disposed of, as is apparent from the averments made in the counter affidavit filed on behalf of the respondents. the representation was received on 19.5.93 which was examined in the branch and put up before the detaining authority on 25.5.93 and was considered and rejected by the detaining authority on 26.5.93 and served on the detenu on 28.5.93.(13) every case has to be judged on its own facts and circumstances and in the present circumstances of the case, i am not inclined to accept the writ petition on the grounds taken by the detenu in this writ petition. the writ petition is dismissed as having no merits.
Judgment:

S.C. Jain, J.

(1) The facts giving rise to this writ petition are that the petitioner/detune was intercepted at the Igi Airport, New Delhi, on his arrival from Dubai and as a result of search of his baggage, 2913.500 grams of gold of 24carat purity of foreign origin valued at Rs. 11,53,746.00 (M.V.) were recovered from his possession. The statement of the petitioner/detenu was recorded under Section 108 of the Customs Act wherein he stated that in his suit case there was a false cavity which was used for exporting foreign currency to Dubai on 5.1.93. He also admitted about the recovery of the said contraband gold from him. He has alsoadmitted that he had been going abroad and was involved in smuggling activities earlier also. He was arrested and produced before the A.C.M.M., who remanded him to judicial custody. On 3.3.93 a complaint was made against him under Section 132 and 135(1)(a) of the Customs Act. On 15.4.93 he was granted bail by the learned Additional Sessions Judge on his furnishing a personal bond in the sum of Rs.50,000 with one surety in the like amount. However, on 23.4.1993 the impugned detention order being F. No. 5/15/93/Home (P-ll) was passed by the competent authority of the National Capital Territory of Delhi with a view to preventing him from smuggling goods in exercise of the powers conferred by Section 3[l] of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974.

(2) This detention order has been challenged by this detenu on variousgrounds. The first contention is that he only understands Gurmukhi/Hindi language and that the grounds of detention were not supplied in.Gurmukhi or Hindi language and thereforee, he could not make an effective representation,rather he sent two representations on 28.4.93 - one addressed to the Detaining Authority and the other to the Central Government-demanding the grounds of detention in Gurmukhi or Hindi languages known to him so as to file an effectiverepresentation, but no reply was received by him. According to the learned Counsel, this amount? to violation of his fundamental right as enshrined in Article 22 of the Constitution.

(3) The second contention raised by the learned Counsel is that the Sponsoring Authority did not place before the Detaining Authority the most vital and material documents which could have influenced the mind of the Detaining Authority one way or the other at the time of passing of the impugned detention order, i.e. the retraction letter dated 22.1.93 and that of 1.2.93; and the bail bond dated 22.4.93.The said documents were not supplied to the detenu despite the fact that he made a specific request for the supply of the same vide his representation dated 13.5.93.

(4) Another contention raised by the learned Counsel for the petitioner is that the incident was of 8.1.93 and the detention order was passed only on 23.4.93. He submitted that the long and undue delay in passing the order of detention snatched the nexus between the activity alleged and the activity sought to be curbed bypassing the impugned order of detention and on this ground also the detention order has become illegal and void. It was incumbent upon the Detaining Authority that the representation of the petitioner was dealt with continuously till its final disposal and communication thereof to the detenu and their failure to do so rendered the impugned detention order illegal and void.

(5) The last submission made by the learned Counsel for the petitioner is that the detention of the petitioner is based on a single solitary incident and there is no material to suggest that he has such inclination, tendencies and potentialities or propensity which can give rise to a reasonable apprehension of the prejudicial activity being repeated by him in future. thereforee, subjective satisfaction of the Detaining Authority that the detenu unless prevented will continue to engage himself in smuggling goods is vitiated and has thereby rendered the impugned detention order illegal and void.

(6) Reliance has been placed by the learned Counsel for the petitioner on various decisions of this Court being Om Parkash Srichand Kukreja v. State : 44(1991)DLT413 ; Nisar Ahmed v.Union of India & Ors [Cr.W.P. No. 501 of 1990decided on 31/05/1991]; Varinder Singh Batra v.Union of India and Others[Cr.W.P. No. 45 of 1993 decided on 13/08/1993]; and Mohammed Salim Khatriv. Union of India and Others [Cr.W.P.No. 119of 1993] in support of her contentions raised during the course of the arguments.

(7) Learned Additional Standing Counsel, Mr. N.K. Handa strongly opposed this writ petition and drew my attention towards the counter affidavit filed by Mr.M.U. Siddiqui, Deputy Secretary [Home], Govt of National Capital Territory ofDelhi. According to the learned Counsel in the voluntary statement made by the petitioner/detenu recorded under section 108 of the Customs Act the detenu had stated that he was a student of B.A. Ii year in Khalsa College, Amritsar. In view of that it could not be lived that the petitioner was not familiar with the Englishlanguage. In the said statement he had also admitted that there was a false cavity in his suit case from which the contraband gold was recovered and this false cavity was used by him earlier on 5.1.93 for exporting foreign currency to Dubai.According to the learned Counsel, a scrutiny of the petitioner's passport revealed that he went abroad thrice for very short duration. Keeping in view the modus operandi to smuggle gold coupled with frequent visits abroad and his admission of involvement in smuggling activities earlier also, the Detaining Authority arrived at the conclusion that the petitioner has the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he is likely to indulge in the smuggling activities in future. Learned Counsel submitted that the detention order is valid and legal.

(8) Counsel for the respondents further submitted that the representations received on behalf of the petitioner were duly dealt with and rejected. He stated that the documents relied on by the Detaining Authority were supplied to thedetenu. There has not been any delay in passing the detention order. He has relied upon the decision of Rajendra kumar Natvarlal Shah v. Union of India and Others{ : 1988CriLJ1775 j wherein it was held by Hon'ble Supreme Court that even the unexplained delay [which was 5 months in that case] in passing the detention order under the Cofeposa would not be sufficient to vitiate the order, if the grounds were not stale and the nexus between the grounds and the order of detention still existed.

(9) According to the learned Counsel, none of the grounds taken by this detune in this writ petition are helpful to him for quashing the detention order which is legal and valid. He also pointed out that the representation of the petitioner was received on 19.5.93 which was examined in the branch and put up before the Detaining Authority on 25.5.93 and was considered and rejected by the Detaining Authority on 26.5.93 and served on the petitioner on 28.5.93. It cannot be said that the representation was not dealt with expeditiously and was not disposed of.

(10) As far as the delay in passing the detention order is concerned, this petitioner was arrested on 8.1.93. He was released on bail by the A.S.J. on 22.4.93.The impugned detention order was passed on 23.4.93. Can the delay of about 3months in passing the detention order be said to be fatal in the present circumstances of the case The answer is 'No'. In the case of Rajendra kumar Natvarlal Shah v. Union of India and Others [ supra] wherein it was held by Hon'bleSupreme Court that even the unexplained delay [which was 5 months in that case]in passing the detention order under the Cofeposa would not be sufficient to vitiate the order, if the grounds were not stale and the nexus between the grounds and the order of detention still existed.

(11) In this case it has come in the statement of detenu itself recorded under Section 108 of the Customs Act, which he retracted later on as is being done in everycase, that he travelled abroad three times earlier within a gap of two months and stayed there only for one day on two occasions and for three days on third occasion.He admitted that he had brought gold earlier in the months of September andNovember. He had also admitted that the false cavity in the suit case was used by him for exporting foreign currency to Dubai on 5.1.93 and the contraband gold which was recovered was secretly concealed in this suit case. What more is required for the subjective satisfaction of the Detaining Authority for passing the detention order has not been explained by the learned Counsel for the petitioner.The modus operandi to smuggle gold coupled with frequent visits abroad and his admission of involvement in smuggling activities earlier, the Detaining Authority arrived at the conclusion that the petitioner has the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he is likely to indulge in the smuggling activities in future.

(12) Regarding the non supply of the documents and grounds of detention in Gurmukhi/Hindi language, it has come in the statement of this detenu under Section 108 of the Customs Act that he was a student of B.A. Ii year in KhalsaCollege, Amritsar. In view of this fact, it cannot be said that he did not know English language. Regarding the non supply of the documents, it has come in the affidavit of Mr. M.U. Siddiqui, deputy Secretary (Home), Delhi Administration in para XII that the detention order was passed on the material placed before the Detaining Authority and documents relied upon were supplied to the petitioner. Copy of the proposal for detention was not supplied to the petitioner as it being an interdepartmental communication, was not be supplied and the Detaining Authority was of the view that the supply of the proposal to the petitioner would not be in the public interest. Even otherwise, the representations sent by this detenu were immediately dealt with continuously and disposed of, as is apparent from the averments made in the counter affidavit filed on behalf of the respondents. The representation was received on 19.5.93 which was examined in the branch and put up before the Detaining Authority on 25.5.93 and was considered and rejected by the Detaining Authority on 26.5.93 and served on the detenu on 28.5.93.

(13) Every case has to be judged on its own facts and circumstances and in the present circumstances of the case, I am not inclined to accept the writ petition on the grounds taken by the detenu in this writ petition. The writ petition is dismissed as having no merits.