Paramjit Singh vs Union of India

M.L. Singhal, J.

Through this Criminal Writ Petition filed under Article 226 of the Constitution of India the petitioner has thrown challenge to the detention order No. 673/14/95CusVIII, dated 7.2.1995 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred as "COFEPOSA") passed by Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, and has prayed that writ of certiorari be issued quashing this order. He was further prayed for the issuance of direction/order to the respondents not to arrest him during the pendency of the case.

It is averred by the petitioner that he is resident of village Dugri, Tehsil Tarn Taran, District Amritsar but has been wrongly shown in the record of the Enforcement Directorate as resident of 167B, Cheema Nagar, Jalandhar. The Chief Enforcement Officer, Enforcement Directorate, 5 Green, Model Town, Jalandhar recorded in the remand application dated 18.11.1994 (Annexure P1) that the Phagwara Police had intercepted Maruti car No. PB371213 at Chahal Nagar Crossing, G.T. Road, Phagwara on 15.11.1994 and at that time car was occupied by S/Shri Pardeep Singh Jassal, Pardeep Kumar and Karamwant Singh. It was alleged in the remand application that on the basis of information received from the aforesaid occupants of the car, residential premises of Shri Nirvail Singh, 167B, Cheema Nagar, Jalandhar was searched. It was falsely alleged in the remand application that the petitioner was residing with Sh. Nirvail Singh at 167B, Cheema Nagar, Jalandhar and was indulging in Hawala payments. It is further averred in this petition that the petitioner was taken into custody by the officers of the Enforcement Directorate, Jalandhar on 15.11.1994 at 8.30 P.M. The petitioner was never a resident of 167B, Cheema Nagar, Jalandhar. He was ordinarily residing at village Dugri, Tehsil Tarn Taran, District Amritsar. He had come to Jalandhar in search of job and had stayed with his maternal uncle Shri Nirvail Singh at 167B, Cheema Nagar, Jalandhar only for one day. He could not go back to his village as his fatherinlaw was not available at Jalandhar. It is averred in this petition that he had nothing to do with that car or with what was recovered lying in that car. So far as the petitioner is concerned, no incriminating document or money or material was recovered. Till 18.11.1994 he was kept in illegal custody by the officers of the Enforcement Directorate with mala fide intention. He was tortured during his illegal detention. His signatures were obtained on certain blank papers by practising duress and coercion on him. He never made any confessional statement. Officers of the Enforcement Directorate, Jalandhar falsely implicated him under section 9(1)(b) and 9(1)(d) of Foreign Exchange Regulation Act, 1973 and he was produced before the Magistrate at Jalandhar on 18.11.1994 for remand for purpose couched in remand application, Annexure P.1. He was remanded to judicial custody by the Magistrate. In the remand application there is not even a reference connecting him with the recovery of Indian currency worth Rs. 15.00 lacs, one road light having magnet at the bottom and R.C. of the car. He is not bound by any disclosure spelt out by the said documents of the car that they were to deliver Rs. 15.00 lacs to Nirvail Singh. He is not bound by any disclosure of the aforesaid occupants that Pardeep Singh Jassal and Karamwant Singh and earlier delivered Rs. 10.00 lacs to said Nirvail Singh in accordance with the instructions of Malpinder Singh of Dubai. Similarly, he is not concerned with the alleged recovery of Rs. 6,20,000/ and the documents showing receipt and distribution of hawala payments as per instructions from abroad and a machine used for receiving instructions from abroad for making such payments. On 5.1.1995, he sent representation through the jail authorities and on 15.1.1995 he sent another representation through the jail authorities that he was innocent and had been falsely implicated. On 16.1.1995 he moved application for bail in the court of Shri Bhupinder Singh, JMIC, Jalandhar (Annexure P2). He was released on bail by the Magistrate vide order Annexure P3. After his release on bail he submitted representation on 19.1.1995 (Annexure P4) to the Directorate Enforcement Jalandhar that he had been falsely implicated by the enforcement staff, Jalandhar. Joint Secretary to Government of India passed detention order, Annexure P5, dated 7.2.1995 under section 3(1) of COFEPOSA. It is averred by the petitioner that the detention order, Annexure P5, is illegal, mala fide, unconstitutional, void, without jurisdiction as the same was passed on the basis of documents and statements with which he has nothing to do. Documents and the statements recorded of other persons do not have any bearing with the alleged occurrence and as such the detention order is void. Further, detention order was passed on 7.2.1995 when he had been detained on 15.11.1994. Detention order suffers from the vice of having been passed after inordinate delay. His representations were not considered before the detention order was passed. There is lack of application of mind on the part of the Joint Secretary to the Government of India so far as detention order is concerned. His lone statement extracted through coercion and duress by the enforcement staff was used to base the order of detention. No action was taken by the enforcement staff against the occupants of the aforesaid car. The petitioner was made a scapegoat with a view to show a big catch. JUDGMENT passed is punitive in nature rather than preventive. Detention order was passed mechanically on a printed proforma. Ingredients of Section 3(1) and 3(iii) of COFEPOSA are not attracted to the facts of the case inasmuch as there was no material with the respondents to show that the detention of the petitioner would further the conservation of foreign exchange and put a stop to the smuggling activities or effect the augmentation of foreign exchange.

In the remand application, Annexure P1, made by the Chief Enforcement Officer, Enforcement Directorate, Jalandhar facts have been set out which make it clear that S/Shri Narvail Singh son of Shri Kundan Singh, 167B, Cheema Nagar, Jalandhar and Paramjit Singh son of Sohawa Singh, 167B, Cheema Nagar, Jalandhar contravened the provisions of section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973. According to the Chief Enforcement Officer, Jalandhar documents seized from their residence contain the names and addresses of more than 200 persons to whom payments of more than 1 crore were made by the accused persons as per instructions from abroad and the Enforcement Directorate is making enquires with those persons. Amount of more than Rs. 1 crore was distributed by them during SeptemberNovember, 1994 only. Narvail Singh and Paramjit Singh were booked under section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973.

In pursuance to the detention order passed, Paramjit Singh has not surrendered. It was submitted by the learned counsel for the petitioner that it does not matter if the detenu has not surrendered and has filed writ against detention. High Court and the Supreme Court can interfere with the order of detention at preexecution stage. In support of this submission, he drew my attention to the Additional Secretary to Government of India and others v. Smt. Alka Subhash Gadia and another, 1991(1) RCR 677. In para 30 of this judgment, the Hon''ble Supreme Court has held that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is part of the basic structure of the Constitution. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. At the pre execution stage the cases in which the courts can interfere are very few and the grounds on which the courts have interfered with detention at the preexecution stage are very limited in number viz. where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. Powers under Articles 22632 of Constitution of India cannot be exercised in every case but in exceptional cases.

"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.... This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material would be likely to act in a prejudicial manner as contemplated in any of subclauses (i), (ii) and (iii) of clause (1) of subsection of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose, but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi judicial power"..... was the observation of the Hon''ble Supreme Court in Khudiram Das v. The State of West Bengal and others, 1975(2) SCR 832 at page 842 explaining the nature of preventive detention.

In view of the observations of the Hon''ble Supreme Court explaining the nature of preventive detention in Khudiram Das''s (supra), this court cannot go into the question whether or not Paramjit Singh was a resident of village Dugri, Tehsil Tarn Taran and had gone to his maternal uncle only in search of job. Similarly, this court cannot go into this question whether or not he was justifiably detained under section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973 as when the order of detention was passed, the detaining authority must have felt satisfied that the petitioner would be likely to act in a prejudicial manner if the order of detention was not passed against him.

In Additional Secretary to Government of India and others v. Smt. Alka Subhash Gadia and another (supra) it was categorically held by the Supreme Court that a judicial review lies with regard to the order of detention at preexecution stage where order is passed on vague, extraneous and irrelevant grounds. Judicial review cannot be claimed as of right. Even in such cases as enumerated in Smt. Alka Subhash Gadia''s case, the court is not obliged to interfere with the impugned order at the preexecution stage and may insist that the detenu should first submit to it.

Is this case covered by any of the 5 exceptions spoken of by the Hon''ble Supreme Court in Smt. Alka Subhash Gadia''s case ? It is submitted by the learned counsel for the petitioner that this case is covered by the 4th exception namely that it was passed on vague, extraneous and irrelevant grounds. It would bear repetition that the grounds of detention have been well brought out in the remand application (ibid). It was the subjective satisfaction of the detaining authority whether or not the detention of the petitioner was justified with a view to prevent him from indulging into smuggling activities. It was the subjective satisfaction of the detaining authority to order his detention with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or harbour persons engaged in smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods.

It was submitted by the learned counsel for the petitioner that when there is prosecution under section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973 against Nirvail singh and Paramjit Singh, there should have been no order of detention under the COFEPOSA. It was submitted that order of detention was passed under COFEPOSA when it was felt that the prosecution was weak and infirm and would not succeed. Suffice it to say, the order of detention was passed with a view to prevent the petitioner from indulging into smuggling activities. JUDGMENT of detention is only preventive and not punitive while the prosecution is punitive. Power of detention does not partake of the nature of punishment.

It was submitted by the learned counsel for the petitioner that the enforcement staff arrested the petitioner on 15.11.1994 while order of detention was passed on 7.2.1995 and there was inordinate delay in the passing of the order of detention. In return filed to the writ petition, it was submitted by the respondents that the Enforcement Directorate effected the seizure and then after making esquires against as many as 19 different parties all over Punjab sent the proposal to Headquarter, since voluminous documents were translated into Punjabi and English and as such there was no delay in passing the detention order. In Ashok Kumar Malik v. Union of India and others, 1992(2) RCR 214 , learned Single Judge of this court observed that the petitioner had filed representation dated 27.1.1989 to the Director, Directorate Enforcement of the Foreign Exchange which was disposed of on 8.3.1989. Some time was thus consumed in looking into the representation of the petitioner regarding his innocence. Enforcement staff had to verify the documents seized from the accused. It must have taken some time. It cannot thus be said that delay in passing of the detention order had occurred illegally. In this case also the petitioner Paramjit Singh had made representation, Annexure P4, on 19.1.1995. Earlier he had sent two similar representations through jail authorities on 5.1.1995 and 15.1.1995 respectively. JUDGMENT of detention Annexure P5 was passed on 7.2.1995. Detaining authority must have taken some time in correlating the evidence and the representations. In this case there is no reason why the merits of the order of detention be considered at the preexecution stage. The petitioner has not surrendered but has filed writ against detention. It is not an exceptional case where this court should exercise power vesting in it under Article 226 of the Constitution of India and review the order of detention.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was enacted by the legislature with a view to provide for preventive detention in certain cases for the purpose of conservation and augmentation of foreign exchange and prevention of smuggling activities and matters connected therewith. This Act was enacted when violations of foreign exchange regulations and smuggling activities were having an increasingly deleterious effect on the national economy and thereby effecting the security of the State. This Act was enacted having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain cases which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on, it was thought necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith.

For the reasons given above, this writ petition is dismissed with costs which are assessed at Rs. 5,000/. Petitioner shall surrender in pursuance to the detention order (Annexure P.5) passed against him by the Joint Secretary to the Government of India. After he has surrendered, the order of detention and the grounds of detention and the documents supporting them shall be made available to the petitioner (detenu).