Angel Saavedra Dopico Vs. Union of India (Uoi) and ors. - Court Judgment

Usha Mehra, J.

1. Angel Saavedra Dopico, a Spanish national arrived at New Delhi from Zurich on 13th January, 2001. He was intercepted and was found carrying 33 gold bars on his person. Those 33 golds bars were seized and his statement under Section 108 of the Customs Act, 1962 (hereinafter called the Act) was recorded. Since 13th January, 2001 he is in custody and confined in the Central Jail, Tihar. Criminal complaint against him under Section 132, 135(1)(a) and (b) of the Act was filed on which the cognizance has already been taken by the learned Additional Chief Metropolitan Magistrate, New Delhi. While the petitioner was still in judicial custody confined in the Central Jail, Tihar, he was served with the impugned order dated 12th July, 2001 passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (as amended) {hereinafter called the COFEPOSA Act}.

2. Aggrieved by the order of detention, the petitioner has assailed the same by way of this writ petition. His challenge is based primarily on four counts namely; (i) that there has been long delay in passing the detention order; (ii) unexplained delay in serving the said detention order; (iii) petitioner was in jail, his activities were controlled hence there was no occasion for him to indulge in smuggling activities; and (iv) that relevant documents have not been taken into account by the detaining authority nor these were placed before the said authority.

3. We had the opportunity to hear Mr. Herjinder Singh, Advocate for the petitioner and Mr. K.K. Sud, Additional Solicitor General for the respondent. So far as the first objection regarding delay in passing the detention order, to our mind, it has been satisfactorily explained by the respondent vide their Explanationn Annexure 'A' given in the time chart filed with the sur-rejoinder. Perusal of the same reveals that the proposal for detention of the petitioner was sent to the detaining authority on 27th April, 2001 pursuance to which the screening committee met and considered the proposal on 16th May, 2001. where after the case was processed and presented to the detaining authority who took cognizance of the show cause notice to the petitioner on 6th July, 2001. The detaining authority after consideration or all the relevant documents passed the impugned detention order on 12th July, 2001.

4. Contention of Mr. Herjinder Singh that there was a delay from the time petitioner was arrested on 13th January, 2001 or when he was granted judicial remand on 27th January, 2001 and the meeting of the screening committee on 16th May, 2001. From 16th May, 2001 to 12th July, 2001 no Explanationn has been rendered for the delay of these two months except stating that show cause notice was given. Awaiting of show cause notice does not justify the delay. In such eventuality Mr. Herjinder Singh contends that detention order should be set aside. To support his arguments he placed reliance on the decisions of Supreme Court in the case of Anand Prakash v. State of U.P. , : AIR1990SC516 ; Pradeep Nilkanth Paturkar v. S. Ramamurthi , : 1994CriLJ620 ; T.A. Abdul Rehman v. State of Kerala , : 1990CriLJ578 ; Sk. Serajul v. State of West Bengal 1975 (2) SC 78; Jagan Nath bids was v. State of West Bengal , : 1975CriLJ1329 ; Rabindra Kumar Ghosal v. State of West Bengal , : 1975CriLJ1235 ; and Issac Babu v. UOI and Anr. , : (1990)4SCC135 .

5. Admittedly the petitioner was arrested on 13th January, 2001 when he was carrying 33 gold bars contained in two small polythene pouches of 100 gms. each. These polythene pouches were wrapped with brown colour adhesive tape. After he was intercepted and his statement under Section 108 of the Act was recorded, it was revealed that the gold bars wrapped in adhesive tape/carbon paper were kept by him in his pocket to avoid any detection by the custom authority at the Airport and also with the intention to avoid custom duty. He had brought these gold bars into India for the purpose of selling the same into Indian markets. Pursuance to this statement, his previous record was checked. That revealed that the petitioner had visited India many times before this visit. He indulged smuggling activities. After obtaining these details and particulars, complaint was lodged on 7th March, 2001. Data and details were put up before screening committee which met on 16th May, 2001. Thereafter show cause notice was issued on 6th July, 2001. After the show cause notice all the material facts were placed before the detaining authority on 9th July, 2001, and thereafter, the detention order was passed on 12th July, 2001. This to our mind, sufficiently explains the time consumed in passing the detention order. From the facts and details placed on record it can't be said that there was undue or unexplained delay in issuing the detention order in this case.

6. So far as the service of detention order on the petitioner is concerned, the same has also been satisfactorily explained by the respondent. The detention order dated 12th July, 2001 was admittedly served on 25th July, 2001 on the petitioner in Tihar jail. Mr. Herjinder Singh's contention that there was delay in execution of this order on the petitioner, we find no substance in his contention. So far as the principle of law laid down in the judgments of Supreme Court as relied by Mr. Herjinder Singh there is no quarrel with the proposition that if there is an unexplained delay then the detention order cannot be sustained. But what we have to see is whether any Explanationn has been rendered which is satisfactory. In the case of Noor Salman Makani v. Union of India and Ors. , : 1994CriLJ602 contention was raised by the petitioner that there was non application or mind by the detaining authority with regard to the circumstance that the detenu was in jail and a mere bald statement that possibility that the detenu was likely to be released on bail could not be ruled out was not enough and that showed that there was proper application of mind. Repelling this argument the Apex Court held that it did not think that anything more could have been said by the detaining authority in this context. In that case the apprehension of the authority came to be true because subsequently the detenu got released though on certain conditions. In this case from the fats as have come on record it is apparent that the co-accused of the detenu namely Shri Rama Shankar Singh Sharma had applied for bail merely four times. Even the petitioner applied for the release of his personal belongings on 16th February, 2002. thereforee, it cannot be said that the apprehension of the detaining authority that the accused may get the bail was unfounded. In fact from the facts it appears that the detenu was certain for the release of his co-accused and if the co-accused had succeeded in obtaining the bail, petitioner would have followed the suit and after getting released he would have again engaged in illegal activities. thereforee, on the facts of this case it cannot be said that the detaining authority did not apply its mind at the time of passing the detention order. Nor can it be said that the apprehension of the detaining authority was unfounded. Keeping in view the petitioner when he came to India for almost eleven times and had been indulging in selling of the gold bars in India and getting the foreign currency through the contact man wherefrom his minimum profit was Rs. 2000/- per gold bar. He sold whatever gold bar he brought into India to the said contact man called 'uncle' at Delhi. That uncle used to make payment in Dollars. he used to carry the same at the time of his departure through Mumbai Airport. Keeping these facts in mind, the proposal for detention of the petitioner under COFEPOSA Act was proposed to the detaining authority on 27th April, 2001 even though he was in jail. The cumulative effect of seeking bail by his co-accused as well as petitioner's seeking release of his personal belongings and keeping his past conduct in view the detaining authority considered the proposal of taking action against the petitioner under the COFEPOSA Act.

Similarly in the case of Dalbir Singh v. Union of India and Ors. reported in I 1995 AD (DEL) 1169 this Court has held that delay if satisfactorily explained in passing the detention order by the detaining authority then the said order cannot be quashed on the ground of delay. In this case delay, if any, has been property explained by the respondent. The proposal was considered and thereafter was sent to the screening committee without any loss of time and the screening committee without delay met on 16th May, 2001. thereforee, it cannot be said that there was any delay on the part of the detaining authority or for that matter on the part of the screening committee. The contention of Mr. Herjinder Singh that there was a delay from the time the screening committee took a decision i.e. 16th May, 2002 and the mater was placed before the authority on 16th July, 2002. For this also the Explanationn has been given that the show cause notice was issued t the petitioner and it is only thereafter that the order of detention could be passed. In this view of the matter, it cannot be said that there was any delay on the part of the detaining authority in taking decision from the time the proposal was considered by the screening committee and detaining authority took cognizance of the show cause notice to the petitioner. Hence, on this count also we find no undue or unexplained delay on the part of the respondent. thereforee, this authorities relied by Mr. Herjinder Singh are of no help to him in the facts of this case.

8. So far as the case relied by Mr. Herjinder Singh those are distinguishable on facts. In that case of Anand Prakash (Supra) there was 3 months unexplained delay. Similarly in the case of Pradeep Nilkanth Paturkar (Supra), the delay was of 5 months and 8 days, and or than 4 months delay from the submission of proposal which delay remained explained but that is not the case in hand. So far as the case of T.A. Abdul Rehman (Supra) is concerned, in that case also there was undue and long delay between the judicial activities and passing of the detention order, thereforee, the Apex Court after scrutinizing the record came to the conclusion that court must ascertain whether there was nay connection between the judicial activities and the passing of the order or that casual connection had broken. Finding that connection having been broken, by the time detention order was passed which was after long delay the Apex Court quashed the detention order. But that is not so in the case in hand. The proposal in this case as revealed from the record show that the petitioner had been indulging in prejudicial activities. He was caught red handed on 13th January, 2001. That the detention order was passed on 12th July, 2001. This cannot be called undue delay particularly when Explanationn for the same has been given. Hence, the case of T.A. Abdul Rehman (Supra) is distinguishable on facts. In that case incident took place on 30th November, 1986 and the order was passed n 7th October, 1987. He was arrested in January, 1988, thereforee, the court came to the conclusion that there was undue and long delay between the prejudicial activities and the passing of the detention order. In the case of Sk. Serajul (Supra) and Jagan Nath bids was (Supra), the delay of 6 months remained unexplained and the ground had become state. But that is not so in this case. In the case of Rabindra Kumar Ghosal (Supra), the delay was found to be fatal to the detention order. Decision of Issac Babu (Supra) is not applicable to the facts of this case. Admittedly the authorities need not wait for the show cause notice while processing the detention papers but in the case in hand, the process started on 27th April, 2001 and after the screening committee met and proposal was considered on 16.5.2001 the detaining authority took cognizance of the show cause notice to the petitioner, thereforee, it cannot be said that the detaining authority was waiting for the show cause notice only or the process had not started before the issuing of the show cause notice. On this count also we find no substance in the argument of Mr. Harjinder Singh.

9. Now, turning to the objection that the proposal dated 6th July, 2001 was received by the COFEPOSA unit on 9th July, 2001 the detention order could not have been passed on 12th July, 2001 because the show cause notice purported to be 6th July, 2001 was served on the petitioner on 10th July, 2001, thereforee, it could not have been received by the COFEPOSA Unit on 9th July, 2001. This shows according to Mr. Herjinder Singh, non-application of mind while passing the detention order. Countering these arguments, Mr. K.K. Sud Additional Solicitor General contended that show cause notice dated 6th July, 2001 was duly served on the petitioner much before 9th July, 2001 and not on 10th July, 2001 as now contended by the petitioner. The perusal of the record show that the proposal was received by the COFEPOSA Unit on 9th July, 2001, thereforee, from these facts it is not believable that the show cause notice was issued on 10th July, 2001 as Mr. Herjinder Singh wants us to believe. The respondent has been able to show from the record that the file was submitted to the detaining authority for consideration and order on 9th July, 2001 and all the relevant material was also placed with it. The detaining authority passed the order on 12th July, 2001. In fact the petitioner has not been able to point out what relevant documents had not been considered by the detaining authority. If what petitioner's mean by relevant documents to be the challan and the sanction of the Collector of Customs or the cognizance order on the complaint, to our mind, this argument is without force. For the purpose of passing of detention order, we don't consider that these documents had any beating on the detaining authority to arrive at the conclusion as to whether detention order be passed or not. Subjected satisfaction of the detaining authority did not depend on the cognizance order passed on the complaint of the customs department or the sanction granted by the Collector of Customs or on the challan. By no means these documents can be considered to be so (SIC) that the absence of same from consideration could render the detention order invalid. Reliance by Mr. Herjinder Singh on the decision of Supreme Court in the case of Ram Goyal v. UOI and Anr. 24 (1993) DLT 83 is of no help to him because in that case pre-charge evidence against the petitioner recorded before the Magistrate was not placed before the detaining authority for consideration, and thereforee, Apex court held that that evidence had a bearing but that is not so in the case in hand. His contention is that cognizance order on the complaint and the sanction of the Collector of Customs was not placed before the authority. Neither in the objection nor in the rejoinder it was the case of the petitioner that the pre-charge evidence was not placed before the detaining authority or this fact was suppressed from the detaining authority. The only ground taken is that the cognizance order and the sanction granted by the Controller or Customs was not placed. Mr. K.K. Sud, Addl. Solicitor General rightly contended that the non-placing of the same would not tantamount to suppression of material facts from the detaining authority, thereforee, the judgment cited by Mr. Herjinder Singh in the case of Ram Goyal (Supra) where the pre-charge evidence was not placed,is not applicable to the facts of this case.

10. From the facts which have been narrated above it is clear that the petitioner had visited India 11 times in the year 2000 and had been indulging in clandestine activities, and thereforee, the authority rightly came to the conclusion that he had to be prevented from smuggling of the goods in future. We see no infirmity in the order of detention on any count. The writ is accordingly dismissed.