Smt. Asha Devi vs State of Rajasthan and Others

Farooq Hasan, J.—This Habeas Corups Petition has been filed by Smt. Asha Devi, the petitioner, wherein she has challenged the legality of the detention of her husband, Kishori Sharan Garg, the detenu, in pursuance of the detention order dated January 28,1992, passed by the Commissioner & Secretary to the Government, Home Department (Gr.9), Jaipur, u/s 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (for brevity, ''COFEPOSA Act). The detention order has been served upon the detenu on May 1,1992.

The detention order seems to have arisen out of the alleged two incidents. On May 30, 1989, Maruti Gypsy - RNX 1917 was intercepted near Achrol on Delhi-Jaipur national highway. It was registered in the name of M/s Jamna Lal Lashkari Sarraf & Co., Ramganj Bazar, Jaipur - of which the detenu is one of the partners, and was being driven by Badri Narain and riden by Sarwanlal Sharma; and both them upon interrogation allegedly admitted that they were employees of the detenu''s firm. Upon search of the vehicle, Indian currency notes of different denominations worth Rs. twelve lacs only were found therein, a hidey-box manufactured for the purpose. Presuming the currency notes as sale proceeds of smuggled gold and being liable to confiscation u/s 121 of the Customs Act, both, the vehicle, so also the currency were seized by the customs authorities. The detenu apprehending his arrest and upon his application for. grant of pre-arrest bail was allowed anticipatory bail by the Sessions Judge, Jaipur City Jaipur on June 5, 1989. Thereupon the detenu himself appeared before the customs authorities and got his statement recorded u/s 108 of the Customs Act. According to the detenu in his statement [ibid) the currency not the sale proceeds of smuggled gold but, was the money of Sanjay Gupta alias Sanju Gupta r/o 262, Chhatta Pratap Singh Kinari Bazar, Delhi who had sent it to Radha Govind Lashkari -younger brother of the detenu for purchase of a constructed house in Jaipur through Gopal Dhamani- a local broker. Statement of Sanjay Gupta who verified the version of the detenu, was recorded u/s 108 of the Customs Act on August 11,1989, statement of Badri [driver] and Sarwanlal was also recorded to which they retracted immediately upon their release on June 3, 1989 by sending telegrams [Annexures 1 & 2) and stating in the telegrams that the currency was of Sanju Gupta and did not constitute sale proceeds of any gold. According to the petitioner, both these persons had also written a detailed letters under registered cover vide Annexures 3 & 4 on June 4, 1989 to Collector customs reiterating their version given out in the telegrams as to the belonging of the currency, and denying every allegation entailing alleged smuggling of gold. The petitioner asserts, Sanjay Gupta in his statement before the customs authorities - explained the source of earning Rs. 12 lacs and according to him, in gambling he used to place high bets on cricket matches and it was his undisclosed income on which he was prepared to pay Income Tax. The house of the detenu and Sanjay Gupta was also searched but nothing incriminating was found. And, undisputedly, not even an ounce of smuggled gold was recovered from any person involved in the search of May 30, 1989,''s incident. However, show cause notice dated November 24,1989 u/s 124 of the Customs Act was issued to the detenu his employees, & Sanjay Gupta, and to which, all sent their reply denying allegation of smuggling. Thereupon no criminal prosecution has so far been allegedly launched.

Another incident relates to interrogation of one. Hari Narain-formerly an employee of the detenu''s firm who had left his services in April, 1991 and from whose possession, the customs authorities had seized on July 2,1991 10 pieces of gold weighing 1166.650 gms. Hari Narain in his statement has allegedly given out that the recovered gold was smuggled and his employer [the detenu) was engaged in smuggling gold. On the very day, business premises of the detenu''s firm & his house were searched but, again, nothing incriminating was allegedly found there, except cash worth Rs. 80,100/- with its corresponding entries in the cash book, again, apprehending his arrest and upon his application for pre-arrest bail, the detenu was granted anticipatory bail by the Sessions Judge, Jaipur City on July 5, 1991 and before it, on July 3, 1991, Hari Narain was also released on bail by Special Judge [Economic offences cases) Jaipur. Hari Narain himself wrote letter [Ann.36 to the detention order) retracting all allegations of the smuggled gold but, admitting the seizure of the gold from his possession, asserted it to be his personal property and not smuggled gold. Hari Narain had also given his affidavit on July 3, 1991 (Ann. 5 to the present petition at hand) denying on oath his involvement in smuggling ect. According to the petitioner & detenu, show cause notice u/s 124 of the Customs Act was also issued but, no criminal prosecution has been initiated as yet.

Upon these two incidents, the detenu apprehending that there was every likelihood of his being detained under the COFEPOSA Act, before execution of the detention order upon him, approached this Court by filing petition under Article 226 of the Constitution seeking a writ of mandamus for revoking impending order detention and for restraining the respondents from proceeding further. His writ petition No. 1199/92 was admitted on February 4, 1992 and the respondents were directed to proceed against the detenu till February 14, 1992. After reply to the writ petition by the respondents, and hearing the parties, the writ petition No. 1199/92 was ultimately dismissed on February 25, 1992 and against the dismissal, D.B. Special Appeal [writ) No. 162/92 was filed it too was dismissed on April 13,1992 by the Division Bench consisting of one of us (Farooq Hasan, J). Against dismissal of writ petition & special appeal, the detenu filed SLP No. 1183/92. The Apex Court dismissed the detenu''s SLP with the following observations on April 28, 1992-

The dismissal will not preclude the petitioner from filing a petition if the detention order is ultimately soughy to be executed, in which case the observations made herein will not prejudice the petitioner.

And, on May 1,1992, the detention order was executed. Hence this habeas corpus petition.

The argument of both the parties were heard and the documents appended to the habeas corpus petition were gone through.

The ground apart from others urged in the petition, but stressed during the course of the arguments by Shri S.R. Bajwa, for challenging the validity of the order of detention are:

(i) Withholding of vital facts/material/documents circumstances (which will be stated a little later while dealing with this question)- from the notice of detaining authority has resulted in "non-application of mind "vitiating the detention order on this ground alone.

(ii) Copies of some of the documents were not ever supplied to the detenu and it resulted in serious prejudice to him in preparing his effective representation and hence the protection of fundamental right guaranteed to him under Article 22 of the Constitution was denied to him.

(iii) There is delay of seven month in passing the impugned detention order and this delay also remained totally unexplained.

(iv) There is total lack of material/evidence to presume that the detenu has been engaging in activities prejudical to conservation of foreign exchange.

Learned Additional Advocate General and learned standing Counsel for the respondent Nos. 2 to 4, raised a preliminary objection as to the maintainability of the petition being barred as res judicata. In this regard their contention is that detenu challenged the legality of this detention order in writ petition No. 11 99/92 seeking relief of its revocation generally on almost the same grounds as now being taken in the petition at hand; the writ petition was dismissed and that dismissal was upheld not only by the Division Bench but also by the Supreme Court in his Leave petition.

8 So far as the preliminary objection as to the maintainability of the petition is concerned, the same no longer res integra in view of the decision of the Supreme Court in Lallu Bhai Jogibhai Patel v. Union of India 1981(2) SSC 427 and Kirit Kumar Chamanlai Kundalia v. State of Gujarat and Ors. 1981 (2) SSC p. 437. In Lallubhai v. Union of India [supra), it has been laid down as under:

The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the relief.

In Kirit Kumar v. State of Gujarat [supra], while explaining and relying on the decision in Ghulam Sarwar Vs. Union of India (UOI) and Others, and Lallu Bhai v. Union of India (supra), the Apex Court laid down that the principles of res judicata neither apply to cases where points were not agitated before the High Court but raised for the first time in the Supreme Court in a writ petition under Article 32, nor even successive writ petition in the Supreme Court. It is settled law that the doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that where a court of competent jurisdiction has decided an issue, the same ought not be allowed to be agitated again and again. However, such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. Concededly in the instant case, the learned Single Judge decided the petition of the detenu under Article 226 seeking writ of mandamus for revocation of the order of detention before it was executed upon the detenu which was a discretionary jurisdiction whereas the jurisdication to grant relief in a habeas corpus petition is guaranteed by the Constitution. The order of the learned Single Judge dismissing the writ petition filed by the detenu challenging legality of the detention order and asking for the issue of a writ of mandamus is not a judgment and does not operate res judicata. That order does not operate as a bar to the application asking for the issue of a writ habeas corpus for the protection of his right of liberty which is fundamental right of the detenu, on the same facts. In the earlier writ petition asking for mandamus, it was the pre-detention stage and so order of detention was before the learned Single Judge and while deciding that writ petition, the learned Single Judge found no justification for the respondents from passing/executing the order of detention. Obviously in view of these peculiar facts and circumstances, noted above, their Lordships of the Apex Court while dismissing the detenu''s SLP granted indulgence to the detenu for filing a petition if the detention order is ultimately sought to be executed, by specifically observing that the dismissal of the SLP would not preclude the petitioner from moving afresh. Thus, lending supporting from the law laid down by the Apex Court in the decision in Kirit Kumar v. Union of India [supra] that the doctrine of res judicata cannot be allowed to whittled down or over-ride the express constitutional mandate, and moreover, the present petition at hand is the first petition asking for writ of habeas corpus for the protection of his right of liberty before this Court , the preliminary objection is thus rejected being misconceived in the facts and circumstances of the case at hand. The present petition must, therefore, be entertained and examined on the merits.

This Habeas corpus petition must succeed on the ground (i). It will, therefore, be not necessary to dwell on other grounds. Ground [i] was not taken in the earlier writ petition asking for mandamus.

Shri S.R. Bajwa urged that as would be evident from Annexure 26 to the grounds of detention the customs authorities had examined Siya Sharan Garg- elder brother of detenu but, his statement u/s 108 of the Customs Act has been kept away from the view of the detaining authority . He added that the gold pieces allegedly from Hari Narain were never shown to the detaining authority and that apart, the mint report which was concededly received by the sponsoring authority on February, 6, 1992 after issuing the order of detention dated 28.1.1992, has not been placed before the detaining authority.

As regards recovery of Rs. 80,100/- from the shop of the detenu, the corresponding entries to that amount were shown to the custom authorities in the cash and accounts books of his firm and it verified those entries, but that verifications has also been kept away from the detaining authority.

Shri S.R. Bajwa then urged that in the grounds of detention, while stating antecedants of the detenu, the facts as to the recovery and seizure of rupees 12 lacs from the Maruti Gypsy of the detenu in the year 1989 were relied upon in paras 7, 13 & 15, but the sponsoring authority with held all vital documents pertaining to the said recovery of rupees twelve lacs. In this regard, the following instances have been pointed out as vital material and documents which were withheld by the sponsoring authority and were not produced before the detaining authority.-

(i) Bail application of detenu moved before Sessions Judge, Jaipur City on June 3, 1989;

(ii) Order dated June 5, 1989 granting bail to the detenu by the Sessions Judge;

(iii) Statement of detenu u/s 108, Customs Act categorically explaining the facts as to the seizure of rupees twelve lacs from his Maruti Gypsy;

(iv) Telegrams (Annxs. 1&2) dated June 3, 1989 by Gypsy''s driver Badri; and its co-traveller Sharwanlal;

(v) Letter dated June 4, 1989 (Annxs. 3 & 4) written by driver Badri and Sharwanlal Sharma to the Collector Customs, Jaipur;

(vi) Show cause notice u/s 124 of the Customs Act in respect of confiscation of rupees twelve lacs recovered from Gypsy, to the detenu, Sanjay Gupta, driver-Badri & Sharwanlal Sharma, and their reply to the said show cause notice;

(vii) Statement of Sanjay Gupta u/s 108, Customs Act, wherein he accepted the owner ship of rupees twelve lacs as his money earned from betting on Cricket matches;

As to subsequent incident of July, 1991, in addition to the documents viz. Statement of Siya Saran Garg, corresponding entries as to Rs. 80,100/- & verification by the customs authorities in the accounts books, mint report, & instance of not showing gold pieces recovered form Hari Narain to the detaining authority, (which have been discussed above), Shri S.R. Bajwa also urged that statement of Pradeep in whose shop the biscuits were allegedly taken for erasing markings, has also been withheld by the sponsoring authority, and not shown to the detaining authority. Shri S.R. Bajwa therefore, contended that the afore pointed out instances material and documents are vital one which could have influenced the mind of the detaining authority one way or the other, but those were withheld thereby were not considered by the detaining authority before issuing the order of detention in question and thus, the satisfaction postulated for issue of a detention order is vitiated.

During the course of the arguments, it is wrung out that both, the learned Additional Advocate General and the learned Standing Counsel, failed to controvert the claim of Shri S.R. Bajwa that those exist, were in possession of the sponsoring authority. Thus, it is precise that both the learned Counsel for the respondents neither denied the existence of those documents nor explained as to why those documents were withheld while they were relied upon during issuance of the order of detention in question.

In Union of India (UOI) and Others Vs. Manoharlal Narang, . the Apex Court held that non-consideration of the interim order which constituted a relevant and important material, is fatal to the subsequent detention order on ground of non-application of mind.

In Dharamdas Shamlal Agarwal Vs. Police Commissioner and Another, the Apex Court held that the. requisite subjective satisfaction, the formation of which is a condition precedent to passing vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority before issuing the detention order.

Both the learned Counsel for the respondents urged that interference in the subjective satisfaction of the detention order cannot be made a ground to assail the order of detention because, the Courts are not obliged to give any finding as to the sufficiency authority. The aforesaid contention of the learned Counsel for the respondents is barren of force and is merely delusion, in view of the decisions of the Apex Court in Shafiq Ahmad Vs. District Magistrate, Meerut and Others, followed in Anand Prakash Vs. The State of Uttar Pardesh and others, , wherein it has been held that detaining authority''s satisfaction regarding prejudicial activities of the detenu must be based on credible information or material or cogent reasons and mere bald statement of detaining authority is not enough and, therefore, the Court can look into the material on record. What has been laid down by the Apex Court is being reproduced below:

Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, subject to the closest scrutiny and examination by the Courts.

Thus, having benefited by the enlightments from the above observations, it is settled position that there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the detenu which are prejudicial under the preventive detention Act/Law. In other words, the court has to ensure that the order of detention is based on materials before it. If it is found that the order passed by the detaining authority was on materials on record, the Court can examine the record only for the purpose of seeing whether the order of detention was based on no material or whether the materials have rational nexus with satisfaction that the activities of the detenu were prejudiced.

In M. Ahamedkutty Vs. Union of India (UOI) and Another, while following the decision in Khudiram Das Vs. The State of West Bengal and Others, took into account the observations made in para 13 p. 96 thereof that ''it is, therefore, not only the right of the court, but also its duty as well, to examine what are the basic facts and materials which actually in fact weighed with the detaining authority in reaching the requisite satisfaction and the judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction".

In M. Ahamed Kutty''s case (supra), it has been held that the detenu has right to have copies of vital documents irrespective of whether he knows about their contents or not, and the bail application and bail order were constituted vital materials, and, therefore, non-consideration of these documents by detaining authority or non-supply of copies thereof to detenu would be violative of Article 22(5) and continued detention would be illegal, as also held in State of U.P. Vs. Kamal Kishore Saini,

Considering the facts in the case at hand, no doubt, in order to base the order of detention in question, antecedente of the detenu has been considered by taking into account the fact of recovery of rupees twelve lacs in the incident of May 30, 1989 and, thus, the documents, stated at page 10 of this order from S. Nos. [i] to (viii) i.e. bail application, bail order, statements of detenu & Sanjay Gupta, telegrams sent by driver Badri & Shrwanlal, and Specially show cause notices u/s 124 of the Customs Act in respect of confiscation of rupees twelve lacs in question issued to the detenu, Sanjay Gupta, driver-Badri, & Sharwanlal Sharma & their reply to the said show cause notices, were vital materials for consideration. Similarly, for the subsequent incident of July, 1991, statement of Siya Saran Garg was recorded, corresponding entries to Rs. 80,100/- recovered at the shop of the detenu, were shown from the accounts books of the firm of the detenu to and verified by the customs authorities during investigation; and that mint report having been received after passing the order of detention in question, and the gold pieces recovered from Hari Narain were not seen by the detaining authority. These instances & materials [ibid] were also vital materials for consideration. Thus viewed, the contention of Shri S.R. Bajwa has legal substance that if those would have been placed before the detaining authority and it would have applied its mind, it was possible that as a result of those vital materials, the subjective satisfaction of the detaining authority which was necessary for the reasons enumerated in Section 3 of the COFEPOSA Act to make the detention order, might not have been there and the detaining authority would not have made the detention order. Had those been considered, they would be documents relied on by the detaining authority but, in fact, those vital materials were not considered as is evident from the material on record that there is no specifically mention thereof in the annexure to the order of detention, and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. Therefore, there is no alternative but to hold that it amounted to denial of the detenu''s right to make an effective representation and that it resulted in violation of Article 22[5) of the Constitution and that apart, the subjective satisfaction of the detaining authority is vitiated as the sponsoring authority withheld the continued detention of the detenu illegal and entitling the detenu to be set at liberty in the case at hand.

In the result, this writ petition asking for habeas corpus is allowed, The order of detention suffers from non- application of mind by the detaining authority as its subjective satisfaction is vitiated because of withholding of the vital materials, and it is in violation of Article 22[5) of the Constitution of India & also Section 3(1) of the COFEPOSA ACT, and, therefore, the impugned order of detention is set aside. Detenu, Kishori Sharan Garg, is ordered to be set at liberty unless his presence in jail is required in connection with some other offence. Rule is made absolute with no order as to costs.