Tirlok Nath Mittal vs Union of India and ors.

Harmohinder Kaur Sandhu, J.

T. N. Mittal, petitioner, has filed this writ petition under Article 226 of the Constitution of India, for issuance of a writ of certiorari or any other writ or direction for quashing the detention order dated l7th September, 1992 passed by Joint Secretary to the Govt. of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the Act), with a view to prevent him from engaging in dealing or concealing the smuggled goods in future. He also prayed for a direction to the respondent not to execute the warrant of detention issued against him in pursuance of the detention order.

The brief facts of the case as given in the writ petition, as well as in the written statement filed by the respondents are that on 1531992, on receipt of information, respondent No 2 searched the godown located in building No. 12/21 Shakti Nagar, Delhi, which was in possession of Mr. A. Sebastian alias A. Sharma. From that building 252 V.C.Ps. and some boxes of ball bearings which were stated to be of foreign origin were recovered. Mr. A. Sebastian was arrested and his statement was recorded on 1531992 and 16.3.1992. In that statement he deposed that the building in question belonged to one Mr. Darshan Lal Anand alias Baby and he had taken the same on rent. He had come into contact with the present petitioner about three years ago in Burma Bazar, Madras where he helped him in the purchase of smuggled electronic items like V.C.Ps and V.C.Rs. His business was not profitable, so he came to Delhi at the instance of the petitioner. The petitioner introduced him to various shopkeepers in Delhi including Sudhir Chaudhary. He assisted the petitioner in the disposal of smuggled ball bearings and received 3% commission on sale. The petitioner introduced him to other partners in smuggling activities i.e. D. L. Anand and Roop Kumar. Mr. D. L. Anand masterminded all the smuggling activities. He further stated that he was given Maruti Van No. WNW 9795 by the petitioner for facilitating the sale of smuggled goods. He used to transport the goods to a pre decided place in the market and sold the same to the customers. The sale proceeds were handed over by him to the petitioner, Roop Kumar and D. L. Anand. Regarding some bank slips that were seized from the premises, he deposed that all those slips dated 22121991 in the names of A. Sharma, Roop Kumar, Darshan Lal Anand and the petitioner were for Rs. 49,000/ each and these amounts were deposited in the name of each person for issuance of bank drafts. One slip was in the name of Lakpat Singh who was Accountant of the petitioner. On the statement of Mr. A. Sibestian and other circumstantial evidence, grounds of detention of the petitioner were formulated and the impugned detention order (annexure P15) was passed. The petitioner assailed the detention order annexure P15 on the grounds that no smuggled goods were recovered from his possession at any time and he had absolutely no concern with the goods alleged to have been recovered from the premises in occupation of Mr. D. L. Subastian alias A. Sharma. As soon as, he received a show cause notice, he submitted his reply annexure P4 to the effect that he had not nothing to do with the alleged seized goods or Maruti Van in question. His only concern was that he had taken a part of the premises on rent from Mr. D. L. Anand which he had sublet to A. Sabestian. vide rent deed dated 22.2.1991 annexure P8. In fact on suffering loss in the business, he shifted to Ludhiana and was residing there. His house at Ludhiana was searched but no recovery was effected. The impugned order was passed after a lapse of six months and there was no legal justification to pass the order under the Act against him after such a long delay when he was available for interrogation all the time. Although, the order was passed on 791992, it was not executed till the present petition was filed and it was liable to quashed on the ground of delay in executing the same. The material used for passing the impugned order was vague and was based on extraneous matters. The statements of Mr. A. Sebastian alias A. Sharma annexures P2 and P3 which were relied upon were recorded under duress and pressure and on the very next day i. e. 1731992 when A. Sharma was produced in the court of A C. M.M., New Delhi, he submitted application annexure P1 alleging that his statements were recorded under duress, threat and pressure. The retracted statements therefore, could be not become basis for the subjective satisfaction of the detaining authority, Mr. A. Sharma, in whose possession the goods were found had already been enlarged on bail and no detention order was passed against him. The detention order passed against another co accused Mr. Darshan Lal Anand, was quashed on 19.1.1993. The petitioner was never involved in any transaction pertaining to alleged smuggled goods seized on 1531992 and the impugned order was passed as a punitive measure to harm his reputation and goodwill.

In the return filed by the respondents, preliminary objections were raised that the petition was liable to be dismissed on the ground ^that the offence was committed at Delhi and the proceedings were also initiated there and thus, the court at Delhi alone had the jurisdiction to entertain the petition. It was further contended that the petitioner filed criminal writ petition under Article 226 of the Constitution of India for issuance of writ of Mandamus and Certiorari for quashing the show cause notice and for direction to the respondents not to execute the warrant of detention only writ of habeas corpus was maintainable for the release of the detenu. On merits it was maintained that the petitioner appeared before the Custom Authorities only on 29.4.1992 and his statement continued till July, 1992. The detention order was passed when the investigation was over and there was no delay on the part of the detaining authority in passing the detention order. No time limit was imposed on the detaining authority under the Act to form is subjective satisfaction. The order was passed by the detaining authority after duapplication of mind having regard to all the materials placed before it. It could not be executed as the petitioner was not available.

In a rejoinder by the petitioner, it was averred that the petitioner had shifted his business and residence to Ludhiana and he received summons for appearance at his Ludhiana address. So he was competent to invoke the jurisdiction of this Court for getting the impugned order of detention quashed. The detention order passed against his coaccused Darshan Lal Anand almost on the some grounds was quashed by this Court on 19.1.93 He was allowed anticipatory bail by this Court and at that time on objection was raised with respect to the jurisdiction of this Court.

The respondents filed another counter affidavit on 2751993, wherein it was alleged that the petitioner earlier filed a Criminal Writ Petition the High Court at Calcutta for quashing his detention order by alleging that he was resident of that place. He also produced some receipts issued by the landlord from whom premises were taken on rent but when that petition was listed for hearing on the question of jurisdiction the same was withdrawn on 31.3.1992. He had now given a false address of Ludhiana just to crave the indulgence of this court.

The allegations made in the additional written statement were controverted by the petitioner by an affidavit dated 7.7.1993 wherein he admitted that he filed a writ petition in the Calcutta High Court but alleged that the petition was against the summoning order dated 1631992 for appearance on 1731992 before Superintendent of Customs, New Delhi and not against the alleged detention order, as no detention order was passed by the respondent authorities at the relevant time. He apprehended harassment at the hands of the respondents and filed the writ petition which wis withdrawn on 3131992. He had been visiting Calcutta for his business assignment during the relevant period and thus he had acted within his permissible Fundamental Right to personal liberty.

I have heard Mr. D. D. Gupta, learned counsel for the petitioner and Mr. D. D. Sharma, learned counsel for the respondents and have perused the record.

The grounds on which the detention order was challenged by the petitioner were not specifically contradicted by the respondents and the main contention of the respondents was with respect to the maintainability of the petition and jurisdiction of this Court to entertain the petition. Firstly, it was urged that the petitioner had filed criminal writ petition under Article 226 of the Constitution of India for issuance of a writ of mandamus, certiorari for quashing the show cause notice but only writ of habeas corpus was maintainable for the release of the detenu. The writ of Mandamus and Certiorari were called civil writs and the same could be fixed for decision before a Division Bench. This contention of the learned counsel for the respondents is devoid of any merit. It is correct that in the first petition in the heading of the petition, a prayer was made for the issuance of writ of certiorari for quashing show cause notice and a writ of Mandamus directing the respondents not to execute the warrant of detention but it was not a civil writ. It was a criminal writ wherein a prayer was also made for issuing any writ, order or direction which the court deemed fit and proper in the facts and circumstances of the case. When the writ was filed even copy of the detention order was not with the petitioner. Subsequently additional grounds were placed on record whereby only the detention order dated 1791992 annexure P15 was assailed. It is not disputed that when fundamental rights especially right to liberty is involved, there should be no restrictions in the exercise by the High Court of its extra ordinary writ jurisdiction under Article 226 of the Constitution of India, in order to safeguard those fundamental rights guaranteed by the Constitution. Illegality of the order can be gone into and the case of the petitioner cannot be thrown away on technical ground because the words writ of Certiorari or writ of Mandamus were used. In view of the prayer made in the additional grounds, the petition is maintainable.

The next objection raised by the learned counsel for the respondents was with respect to jurisdiction of the Court. It was urged that earlier the petitioner had filed a petition in the Calcutta High Court alleging that he was a resident of Calcutta. The respondents raised an objection with respect to the jurisdiction of that court and the case was fixed for hearing on the question of jurisdiction when that petition was withdrawn. Later on, the petitioner alleged himself to be resident of Ludhiana and invoked the jurisdiction of this Court when the alleged prejudicial activities had taken place in Delhi and the smuggled goods were recovered from a premises situated at Delhi. This fact is admitted by the petitioner that he had moved a writ petition in Calcutta High Court but that was not with respect to the impugned detention order. That writ petition was filed against summoning order dated 1631992 for appearance before the Superintendent of Customs, New Delhi, in view of search on 1531992 of the premises of Mr. A. Sharma. At that time no detention order had been passed. The petitioner had been visiting Calcutta for his business assignments during the relevant period. There was nothing to debar him from filing that writ petition when he was present in Calcutta in connection with his business and had taken a house on rent there.

In the instance case the petitioner contended that he had shifted his business to Ludhiana and had entered into a partnership with one Rakesh Kumar of Ludhiana, after executing a deed to that effect on 17.2.1991 copy of which was annexure P9. He had also taken residential accommodation on rent which was situated in Dev Nagar, Ludhiana City. He moved a petition for his prearrest bail in this High Court, which was decided in the presence of Mr. H. S Giani, Sr. standing counsel for Union of India and at that time no objection was taken to the jurisdiction of the court. The order allowing bail to the petitioner was annexure P5. The respondents had taken issuing, summons to the petitioner at his Ludhiana address, copy of which was annexure P11. He also received summons for his appearance for 6.7.1992 and then on 9.4.1992 issued by the Customs Collectorate, at Ludhiana address only. The impugned order annexure P15 was also sent on the residential address of the petitioner at Ludhiana. In these circumstance, the present petition under Article 226 of the Constitution of India, for quashing the impugned order was rightly filed in the court. When the respondents have been sending summons to the petitioner at his Ludhiana address, it cannot be said that no cause of action arose to the petitioner within the jurisdiction of this Court and the contention of the learned counsel for the respondents is held without merit.

The solitary ground which was pressed before me on behalf of the petitioner for quashing the impugned order was delay in passing the order. It was urged that the alleged prejudicial activity had taken place on 15.3.1992 and there was delay of six months in passing the detention order which cast a grave doubt on the genuineness of the subjective satisfaction of the detaining authority. The detention order was thus more in the form of punitive than being preventive. The only explanation furnished by the respondents for the delay was that till July, 1992, statement of the petitioner court not completed, so it took time in passing the detention order. This, however, cannot be treated as a satisfactory explanation. The petitioner had been appearing before the detaining authority since April, 1992 and it would not have taken months to record his statement. In the case of Lakshman Khatik v. The State of West Bengal, AIR 1974 Supreme Court 1264, it was observed as under :

"(A) Though more delay in passing a detention order is not conclusive the authorities concerned must have due regard to the object with which the order is passed. If the object was to prevent disruption of supplies of foodgrains prompt action should be taken.

Held, that in the absence of any explanation regarding the delay, the order of detention, passed with a view to prevent disruption of supplies of foodgrains on the grounds based on incidents of removal of rice which took place about seven months earlier, was invalid."

It was further held by the Supreme Court in Rabindra Kumar Ghosal v. State of West Bengal, AIR 1975 S.C. 1408 that the whole purpose and object of the Act is that persons who are likely to imperil public order are not allowed to be free to indulge in the dangerous activity.The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and unexplained delay of about three months. Therefore, the detention order was found unsustainable. Although, this judgment was handed down by their Lordship in the case of maintenance of Internal Security Act but the ratio of the judgment would equally apply to cases under the COFEPOSA Act as well and, this judgment will also apply to the facts of the present case. In Balkar Singh v. Union of India and others, 1992(2) CLR 531, there was delay of about 31/2 months in passing the detention order and no explanation for the delay was forth coming. It was held that the detention order was unsustainable and the same was quashed.

In the instant case the detention order was passed after a period of six months of the alleged activity and the delay has not been explained. So, a serious doubt arises with respect to the subjective satisfaction of the detaining authority and the detention order is liable to be quashed on this ground alone. Even otherwise, detention order passed against Darshan Lal Anand on similar grounds was quashed on 19.1.1993. Copy of that judgment has been placed on cord. The grounds of detention and the allegations against Darshan Lal Anand and the present petitioner being the same, the impugned order is also liable to be quashed in order to maintain parity.

In view of the findings recorded above. I allow this petition and quash the detention order dated 17.9.1992, annexure P15.