Devinder Singh vs Union of India

J. S. Sekhon, J.

Devinder Singh detenu had challenged the order of his detention Annexure P1 dated 18.7.1989 passed by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, 1989 directing the detention of the petitioner under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as `the Act'') with a view to preventing the petitioner from engaging in transporting smuggled goods. This order of detention along with the grounds of detention was served on the detenu on the same date.

The brief resume of relevant facts contained in the grounds of detention Annexure P2 is that on the basis of specific information, officers of the Directorate of Revenue Intelligence, Amritsar, intercepted a Maruti car bearing registration No. UMF 2139 at Agar Nagar, Ludhiana, on 10.6.1989 at 6.30 PM. Devinder Singh detenu alongwith Gopal Krishan and Inderjit Singh was found travellingin that car. This car was escorted to the office of the Directorate of Revenue Intelligence at Amritsar for search. The thorough search of the car on 1161989 yielded the recovery of 200 golds biscuits bearing foreign markings from underneath the rear seat of the car. These gold biscuits were wrapped in two cloth vanasalies. The gold biscuits of the value of Rs. 75,09,040/ were seized under the Gold Control Act, 1968, and Customs Act, 1962. The car in question along with the cloth vanasalies and adhesive tapes was also seized. During interrogation under Section 108 of the Customs Act, Gopal Krishan one of the occupants of that car stated that one Dalbir Singh proposed him to carry smuggled gold to Delhi by concealing it in a car on a commission of Rs. 5,000/. Thereafter on 10.6.1989, he alongwith Inderjit Singh alias Lalli went to Baba Shahendanwala Gurdwara in the above said car and met aforesaid Dalbir Singh and Devinder Singh detenu. Devinder Singh joined them and they went to Zira in the said car. At Zira Devinder Singh alone took the car and returned about 21/2 hours thereafter, On return, he apprised Gopal Krishan of the concealment of 200 gold biscuits under the back seat of the car and Gopal Krishan was to get Rs. 5,000/ as commission from Dalbir Singh. Inderjit Singh driver of the said car on interrogation also admitted before the enforcement authorities having entered into an agreement with Gopal Krishan for the Delhi trip besides supporting the above referred version of his coassociate Gopal Krishan. Under these circumstances, the detention order was passed and served upon the detenu while he was being confined in the jail for violation of the provisions of Gold Control Act and Customs Act with a view to prevent him from indulging in similar prejudicial activities on his being released on bail.

The petitioner challenges the above referred detention order on many grounds, the material being that the detaining authority had failed to apply its mind to the factum that the car was not searched on 1061989 at the place of its apprehension but taken to Amritsar without any rhyme or reason and searched on the next day. It is further averred that the detaining authority did not consider at all the factum that Inderjit Singh owner and drive of the car was not arrested and that the detaining authority did not consider the factum that the petitioner was already in judicial custody and his prayer for bail has been declined by the concerned Court twice. The solitary incident was also contended to be not sufficient for passing the detention order. The delay in passing the detention order was also stressed regarding the snaping of nexus between the prejudicial activity and the order of detention. Nondisposal of the representation filed by the petitioner was also contended besides maintaining that the detaining authority had acted upon the retracted confessional statements of the detenu and his coassociates.

In the return filed by Shri Mahendra Prasad, Joint Secretary, on behalf of the respondents it is maintained that the answering respondent had passed the order of detention after due application of mind to all the facts on the record. It is further averred that the car was shifted to the office of the Director, Revenue, for thorough rummaging andfor security reasons. The car reached there at about 10.00 PM on 1061989. Due to nonavailability of independent witnesses the car was not searched during the night but on the next morning at 8.0 AM. It is further explained that Devinder Singh and his coassociate Gopal Krishan were produced before the Magistrate on 1161989 and none of them had contended his false implication or wrong arrest under the Customs Act or Gold Control Act and thus their belated plea regarding torture or extracting confessional statement is of no consequence. It is further explained that Inderjit Singh alias Lalli was not arrested being totally ignorant regarding the presence of gold in the said car. On the other hand, the car was hired as per the statement of Inderjit Singh by Gopal Krishan on the pretext of illness of some relation of the latter. This fact was even admitted by Devinder Singh and Gopal Krishan in their respective statements recorded on 1161989 under Section 108 of the Customs Act by the enforcement staff. It was further asserted that no representation filed by the detenu has been received by the answering respondent so far and that the detention order was passed with due promptitude after thorough investigation of the case.

I have heard the learned counsel for the parties besides perusing the record.

The learned counsel for the petitioner contended that the detaining authority had not applied its mind to the factum that the petitioner was in custody since 11689 and his bail application having been rejected twice, there was no possibility of his being released on bail. Reliance in this regard has been placed upon the decision of the apex Court in Dharmendra Suganchand Chelawat v. Union of India and others, 1990(1) Recent Criminal Reports (Supreme Court) 446. On the otherhand, Mrs. Jaishree Anand, learned counsel for the respondent by placing reliance upon the findings of the Supreme Court in Bal Chand Bansal v. Union of India and others, 1988(1) Recent Criminal Reports 626 (SC) : AIR 1988 Supreme Court 1175 , contended that the detaining authority was well aware of the rejection of the bail application of the petitioner as is apparent from the grounds of detention served upon the petitioner, Thus she maintained that the detention order was only preventive in nature and not punitive one.

For appreciating the above referred warring contentions of the learned counsel for the parties, it would be conducive to reproduce the relevant portion of grounds of detention as well as the reply filed by the detaining authority :

"I have carefully gone through the facts and the circumstances of a case, relevant documents as also the statements of various persons in the subject case. I have also seen and gone through the various applications moved in the courts in Amritsar and orders passed thereon. I am also aware that you are in judicial custody and the possibility of your getting released on bail cannot be ruled out and unless prevented you may indulge in the smuggling activities in the like manner or otherwise.

In view of the facts mentioned hereinabove, I have no hesitation in arriving at the conclusion that you have engaged in transporting smuggled goods. Even though the investigations in the subject case are in progress and prosecution and adjudication proceedings under the Custom Act, 1962 and Gold Control Act, 1968, are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from engaging in transporting smuggled goods."

(Para 2 (e) of the return) : "The detaining authority has full knowledge about the judicial custody of the petitioner and this fact has also been mentioned in first para on page 3 starting after 8th line of the page of grounds of detention served upon the petitioner and this fact had been considered by the detaining authority at the time of passing orders. The detention order has been passed by detaining authority to prevent him from engaging in transportation of smuggled goods in case he is granted bail by the Hon''ble Court."

A bare glance through the above referred portion of the grounds of detention as well as the return filed by the respondent reveals that the detaining authority was aware of the detenu being already in custody and the order passed by the Judicial Court on various applications moved by the petitioner: The very factum that the petitioner had tried to secure bail on two occasions reveals that he was making earnest efforts for securing bail and thus the detaining authority rightly apprehended the possibility of the detenu being released on bail. Under these circumstances it cannot be said that the impugned order of detention was passed by way of punitive measure and not preventive.

The apex Court in Dharmendra Suganchand Chelawat''s case (supra) after detailed consideration of the earlier view of the Supreme Court in as many as 12 cases referred therein had observed in para No. 21 of the judgment as under :

"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that: (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that: (a) the detenu is likely to be released from the custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

The facts of the case in hand as discussed above clearly spell out that the detaining authority was aware of the factum of the detenu being already in custody and the presence of compelling reasons justifying such detention because there was reasonable possibility of the detenu being released on bail in the near future although two applications for bail of the detenu had already been rejected. The test of compelling reasons also stands satisfied in this case as in view of the act of the petitioner in importing. gold from Afghanistan after concealing it in the welldesigned bottoms of the two bags, it reveals that the smuggling of gold was done after meticulous preplanning by the detenu. Under these circumstances, the detaining authority rightly concluded about the propensity of the detenu in indulging in similar prejudicial activity after being released on bail,

The above referred conclusion is also supported from or the observations of the apex Court in Bal Chand Barisal''s case (supra) relied upon by the learned counsel for the respondent. In that case the detenu had moved an application for bail which was fixed up under these circumstances, the order of detention was upheld by holding as under in para No. 5 of the judgment :

"In paragraph 24 of the grounds it was stated that the petitioner had been arrested on 341987 and was in judicial custody till 1341987 and in paragraph 26, the detaining authority reminded the petitioner that an application for bail moved on his behalf was going to be heard by the Additional Chief Metropolitan Magistrate on 1341987. In paragraph 38 the order passed on the bail application of the petitioner''s associate Sita Ram Aggarwal was referred to. Thereafter, the detaining authority had mentioned his satisfaction about the necessity of the detention."

This view is also supported from the observations of the apex Court in Smt. Poonam Lata v. M.L. Wadhawan and another, 1987(2) RCR(Crl.) 100 (SC) : AIR 1987 Supreme Court 2098. It was observed on the facts and circumstances of that case that the detaining authority was aware of the fact that the detenu was in custody and yet was subjectively satisfied that the order of detention had become necessary and, therefore, it could not be said that the order of detention was illegal. The facts in that case were that the detenu was taken into custody and produced before the Additional Chief Metropolitan Magistrate who remanded him to custody till the next day. By the time the order of detention came to be made, the petitioner was in jail for at the most for one day. Chargesheet had not been submitted against him in the criminal case and he had been remanded to judicial custody on 2721986 with the direction to be produced before the Metropolitan Magistrate on 2821986. In the case in hand, although no bail application of the detenu was pending at the time, of passing the detention order but the very factum that the detenu has made two unsuccessful attempts earlier for securing bail from the Judicial Court is eloquent enough of the possibility of his being released on bail in immediate future.

The learned counsel for the petitioner had not pressed any other ground during the course of arguments.

For the foregoing reasons, there being no merit in this writ petition, it is hereby dismissed.