Citation Codes

Equivalent Citations

citation codes

Case Number

CRL. WRIT PETITION NO. 657/89

Attorney(S)

For the Petitioner:— Mr. Herjinder Singh, Advocate with Mr. Rohit Kochhar, Advocate.
— Mr. S. K. Misra, Advocate with Mr. S. K. Dubey, Advocate.

Judges

Mr. Justice P.K. Bahri

Acts

SECTION 1 CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT
Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure,

See more information ...

Smart Summary

Judgment Summary — P.K. Bahri, J.

Factual and Procedural Background

The petitioner challenged a detention order dated 13 July 1989 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). The petition was brought under Article 226 of the Constitution of India read with Section 482 CrPC seeking habeas corpus or quashing of the detention order and release of the petitioner.

Key factual allegations in the grounds of detention were that on the night of 7 June 1989 the petitioner was driving a Maruti car from which 206 foreign-origin gold biscuits were recovered; statements of the petitioner and co-detenus (including Vijay Kumar and Sanjeev Aggarwal) were recorded; the petitioner allegedly confessed to smuggling trips to Dubai, dealings with one Avtar Singh, and arrangements for sale and disposal of smuggled gold, including terms of commission.

Procedurally, the detention order dated 13 July 1989 was served on the petitioner on 24 July 1989. A bail application by the petitioner was ultimately rejected on 25 July 1989; the court found that the petitioner did not disclose this date in his writ petition. The petitioner made representations (including dated 18 August 1989 and 11 October 1989) requesting, inter alia, a copy of a retraction by co-detenu Vijay Kumar dated 21 June 1989, which the petitioner alleged was not supplied. The Advisory Board proceedings occurred and the petitioner had sought permission to examine co-detenus as defence witnesses.

Legal Issues Presented

Whether non-supply of the copy of the retraction by co-detenu Vijay Kumar (dated 21 June 1989) vitiated the detention order by depriving the petitioner of an opportunity to make an effective and purposeful representation.
Whether the detaining authorities were obliged to consider a second representation (after the petitioner pointed out a purported mistaken supply) and supply the copy of the retraction when the second representation did not, according to respondents, introduce new facts.
Whether the Advisory Board improperly refused the petitioner's request to examine co-detenus as defence witnesses.
Whether there was compelling necessity to pass the detention order when the petitioner was already in jail and had (or was likely to obtain) bail — i.e., whether detention was justified despite the petitioner already being in custody.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted that a representation dated 18 August 1989 requested a copy of Vijay Kumar's retraction (dated 21 June 1989) and that the respondents' memo of rejection (dated 19 September 1989) indicated the retraction was attached when in fact it was not supplied; a further representation dated 11 October 1989 pointed out the mistake.
Counsel argued that the withheld retraction was material and that non-supply deprived the petitioner of making an effective and purposeful representation against detention.
It was argued that once a second representation was made pointing out the non-supply and alleging torture to Vijay Kumar affecting voluntariness of statements, authorities ought to have reconsidered and supplied the retraction and related medical certificate.
The petitioner contended that because he was already in jail when the detention order was served, and (he claimed) his bail had been rejected, there was no compelling necessity for a detention order to be passed to prevent future prejudicial activity.
The petition alleged the Advisory Board did not permit the petitioner to examine co-detenus as witnesses (a contention later shown to be incorrect on the record).

Respondents' Arguments

Respondents' counsel conceded that the specific copy of Vijay Kumar's retraction dated 21 June 1989 was not supplied but contended that the facts contained in that retraction were already enumerated in other documents (serial nos. 39, 40 & 45 of the list of documents) whose copies had been supplied to the petitioner; hence the petitioner was not deprived of making an effective representation.
They further argued there was no reference to the June 21 retraction in the grounds of detention or in the documents relied upon and thus no legal duty existed to supply that particular retraction.
On the second representation, respondents argued it brought no new facts beyond the first representation; reliance was placed on authority holding that delay in considering a second representation is immaterial if it contains no new facts.
Respondents asserted that the Advisory Board did allow the petitioner to examine co-detenus and recorded brief statements, contradicting the petitioner's contention.
Respondents maintained that the grounds of detention disclosed continuous prejudicial activity and showed a real possibility of release on bail (the bail application was pending when the detention order was passed), justifying detention to prevent further prejudicial activities.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohd. Saleem v. Union of India & Others, 1989 (2) DL 109 (1)	Relied upon by respondents for a similar view regarding non-supply of certain documents where those matters were already reflected in supplied documents.	The court noted respondents' reliance and found force in the argument that the substance of Vijay Kumar's retraction was already contained in documents supplied to the petitioner.
Jamal Haji Jakaria v. Union of India & Others, 1988 (2) DL 409 (2)	Holds that if a second representation brings no new facts and circumstances, delay in considering it is not material.	The court accepted that principle and concluded the petitioner's second representation did not present new grounds and thus raised no merit.
Rameshwar Shaw v. District Magistrate, Burdwan & Another, 1964 (4) SCR 921	Part of authorities indicating that when a person is already in judicial custody and bail has been rejected, such facts must be placed before detaining authority and compelling grounds are required to justify detention.	The court reviewed this and related authorities and summarized the ratio that detention while already in custody requires compelling grounds disclosed in the grounds of detention.
N. Meera Rani v. Government of Tamil Nadu & Another, 1989 (4) SCC 418	Cited among authorities on detention of persons already in custody and the need for compelling grounds if bail is rejected.	Used to frame the rule that where bail has been rejected detention would normally be futile unless compelling material exists and is disclosed.
Smt. Shashi Aggarwal v. State of U.P. & Others, 1938 (1) SCC 436	Included in the collection of cases delineating limitations on detaining persons already in custody absent compelling necessity.	Referred to as part of the body of case law on the subject; the court extracted the general principle from the set of authorities.
Abdul Razak Abdul Wahab Sheikh v. S. N. Sinha, Commissioner of Police, Ahmedabad & Another, JT 1989 (1) SC 478	Included among cited precedents on detention where the detainee is in custody; used in the compilation of ratio on necessity and disclosure.	Referenced in the court's survey of authorities to support the proposition about disclosure and compelling grounds.
Bal Chand Bansal v. Union of India and Others, AIR 1980 SC 1175	Cited for the proposition that where prejudicial activity is continuous and there is a real possibility of release on bail, the detaining authority may form subjective satisfaction to detain.	The court relied on this authority (and Suraj Pal Sahu) to explain that detention of a person already in jail can be valid where the material shows continuity of prejudicial activities and possibility of release on bail.
Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177	Similar to Bal Chand Bansal: supports detention in certain cases where facts disclosed show ongoing prejudicial activity and possibility of release exists.	Applied to support the view that detention could be justified on the facts presented despite the petitioner being in custody.
Pallickal Kunhamu Abdul Latheef v. Union of India and Others, Criminal Writ Petition No. 179/89 (decided 17 Jan 1990)	Recent decision analysing the same body of case law and not laying down principles different from earlier authorities.	Cited to show consistency of principles; the court observed that nothing different was laid down there from the main principles culled out earlier.

Court's Reasoning and Analysis

The court proceeded issue by issue, applying the legal principles derived from authorities and the record before it.

On non-supply of Vijay Kumar's retraction (21 June 1989):

The court accepted that the specific copy of the retraction was not supplied to the petitioner.
It then examined whether the absence of that particular document deprived the petitioner of the opportunity to make an effective and purposeful representation. The court emphasized a pragmatic approach: the inquiry is whether the petitioner had the material necessary to make a meaningful representation, not a hyper-technical insistence on formal supply of every document.
The court found that the facts contained in the Vijay Kumar retraction were already enumerated in other documents (serial nos. 39, 40 & 45 of the list of documents) whose copies had been supplied to the petitioner; it was not shown that the retraction contained any additional facts that could have benefited the petitioner.
On this basis the court negatived the contention that non-supply vitiated the detention order.

On the second representation and alleged failure to supply the retraction after mistake was pointed out:

The court considered whether the second representation introduced new facts warranting fresh consideration or immediate supply of the retraction. It applied the principle from Jamal Haji Jakaria that delay in considering a second representation is not material if it brings no new facts.
The court concluded the second representation was on the same lines as the first and did not contain any new grounds that would oblige the authorities to act differently.

On the Advisory Board and permission to examine co-detenus:

The petitioner alleged the Board refused permission to examine co-detenus. The court inspected the original Advisory Board record and found that the Board had in fact allowed the petitioner to examine co-detenus and recorded brief statements. The petitioner's contrary averment was therefore deemed false and without merit.

On the necessity of detention given petitioner was in jail:

The court surveyed authorities that govern detention where the detainee is already in judicial custody. It summarized the ratio that if a detenu is already in custody and his bail application has been rejected, these facts should be placed before the detaining authority and generally, absent compelling grounds, detention may be futile.
However, the court stressed that the question is fact-specific: if the material demonstrates continuous prejudicial activity and there is a realistic possibility of release on bail (or the bail application is pending), the detaining authority may form subjective satisfaction to detain to prevent future prejudicial activity.
Applying this to the present case, the court found the grounds of detention disclosed ongoing smuggling activities, confessional statements, and associations that indicated continuance of prejudicial activity. Crucially, the detaining authority was aware that the bail application was pending when the detention order was passed and thus could reasonably apprehend a possibility of release.
The court noted procedural misconduct by the petitioner for failing to disclose in the writ petition that his bail application was subsequently rejected on 25 July 1989 (after the detention order was passed and after service), and that an affidavit by the detaining officer had mistakenly asserted awareness of the bail rejection when that was contrary to the record.
On balance, given the material in the grounds of detention and the pending bail application at the time of the order, the court held that the detaining authority's subjective satisfaction was justified and there was compelling necessity to pass the detention order.

Holding and Implications

Holding: The petition was dismissed and the rule discharged. Writ Petition Dismissed.

Implications:

The direct practical effect is that the detention order dated 13 July 1989 stands and the petitioner is not released by virtue of this writ petition.
The court affirmed that non-supply of a particular document does not automatically vitiate a detention order where the substance of that document is otherwise available to the detainee and where no new material is shown to have been withheld.
The court reiterated that second representations must present new facts to require fresh prompt consideration and that detention of a person already in custody can be validated on the facts where the material shows a continuing risk and a realistic possibility of release on bail. The opinion did not purport to lay down novel law; it applied established principles from earlier authorities to the facts of the case.
No new binding precedent was announced by this decision; the ruling applies the existing principles to the case at hand and upholds the detention on the factual record presented.

No other points were urged and the court found no merit in the petition.

Show full summary ...

Mahesh Kumar Chauhan Banti Petitioner v. Union Of India & Others S

P.K Bahri, J.:— This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking issuance of a writ of habeas corpus or any other appropriate writ or direction for immediate release of the petitioner and for quashing the order of detention dated July 13, 1989, passed by respondent No. 2 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as ‘COFEPOSA Act’).

2. The first contention raised by learned counsel for the petitioner in support of the writ petition is that the petitioner had made a representation dated August 18, 1989, in which inter alia, he had prayed for supply of copy of the retraction made by a co-detenu dated June 21, 1989, which he had sent through the Superintendent Central Jail to Additional Chief Metropolitan Magistrate, New Delhi, and a memo of rejection of the representation dated September 19, 1989, was received in which it was indicated that copy of the said retraction is attached but in fact, the copy of the retraction of Vijay Kumar was not so attached and the petitioner had sent another representation dated October 11, 1989, pointing out this mistake of the respondent.

3. It is now not disputed before me that no copy of the retraction of Vijay Kumar which he had sent through Superintendent Central Jail dated June 21, 1989, to Additional Chief Metropolitan Magistrate, New Delhi, has been supplied to the petitioner. The question which has been raised before me in whether non-supply of such copy of the retraction of Vijay Kumar vitiates the detention order or not inasmuch as whether the petitioner had been deprived of making an effective and purposeful representation against his detention or not ?

4. The learned counsel for the petitioner has vehemently argued that a legal duty has been cast on the respondent to have supplied the copy of the retraction of Vijay Kumar as the same could have enabled the petitioner to have made an effective and purposeful representation against the order of detention.

5. The learned counsel for the respondents has, on the other hand, vehemently argued that the retraction of Vijay Kumar contained in letter dated June 21, 1989, sent to Additional Chief Metropolitan Magistrate through Superintendent, Tihar Jail, contained some facts which he had enumerated in earlier documents appearing at serial Nos. 39, 40 & 45 of the list of documents, relied upon for passing the detention order, of which copies stood duly supplied to the petitioner and thus, the petitioner has not been deprived of his right to make an effective and purposeful representation based on such retraction of Vijay Kumar, co-detenu. The learned counsel for the respondents has also contended that there is no reference made to retraction of Vijay Kumar dated June 21, 1989, in the grounds of detention or in the documents relied upon of which copies stood supplied to the petitioner and thus, no duty was cast on the authorities to have supplied copy of the said retraction of Vijay Kumar to the petitioner and he has placed reliance on the judgment of this Court taking similar view in Mohd. Saleem v. Union of India & Others, 1989 (2) DL 109 (1).

6. I find much force in the contention of the learned counsel for the respondents. The Court has to go by realities of life and things. No hyper-technical view has to be taken just to see that the order of detention is quashed. After all the only thing to be seen is whether the petitioner had an opportunity of making an effective and purposeful representation and any material which is required by the petitioner for making a purposeful and effective representation is made available to the petitioner or not. In the present case, the facts which had been mentioned in the retraction of Vijay Kumar dated June 21, 1989, stood already enumerated in documents of which copies already stood supplied to the petitioner and such documents appeared at serial Nos. 39, 40 and 45 of the list of documents. It is not shown that any additional fact stood mentioned in the retraction of Vijay Kumar dated June 21, 1989, which could have been taken benefit of by the petitioner for making an effective and purposeful representation. I, hence, negative this contention of the learned counsel for the petitioner.

7. Another contention raised in support of the petition is that as soon as the detenu had made a second representation the same ought to have been considered and copy of the retraction of Vijay Kumar should have been supplied. It is contended that the authorities had decided to supply copy of the retraction of Vijay Kumar earlier and there was no reason why the authorities did not comply with the said decision when mistake was pointed out by the petitioner to the authorities that a wrong copy has been supplied which was not copy of the retraction of Vijay Kumar as was sought to be supplied. It is also contended that in the second representation it has been highlighted that Vijay Kumar was tortured and beaten when his confessional statement was recorded and he was medically examined and the medical certificate should be perused to consider whether the confessional statement was voluntary or not. So, it was argued that second representation should have been considered in that light.

8. The learned counsel for the respondents has, on the other hand, contended that second representation was on similar lines as the first representation and as there was no legal duty cast upon the respondents to have supplied the copy of the said retraction of Vijay Kumar to the petitioner, thus the mere fact that second representation had been made on the same point is of no consequence. He has placed reliance on Jamal Haji Jakaria v. Union of India & Others, 1988 (2) DL 409 (2), wherein it has been held that if the second representation brings no new facts and circumstances, the delay in considering the second representation is not material. It is, doubt, true that if a second re-presentation is based on new facts and grounds the same has to be dealt with due promptitude, but in the present case the second representation, in my opinion, did not contain any new ground. So, I do not find any merit in this contention as well.

9. It was also argued by the learned counsel for the petitioner that the petitioner had in his representation to the Advisory Board made a prayer for permission to examine the co-detenus as his defence witnesses but the Advisory Board had not acceded to this request. It is really surprising that such a false and wrong averment has been made in the petition. I have gone through the original record of the Advisory Board and find that the Advisory Board allowed this prayer of the petitioner and had permitted the petitioner to examine the co-detenus as his witnesses and very brief statements of the co-detenus were also recorded. So, there is no merit in this contention.

10. Lastly, a plea has been raised that there was no compelling necessity for the detaining authority to have passed the detention order inasmuch as the petitioner was already in Jail when the detention order dated July 13, 1989, was served on him on July 24, 1989 and there was no likelihood of the petitioner being released from Jail inasmuch as the bail application moved by the petitioner had already been rejected. It was pleaded that there was cogent material before the detaining authority to come to the conclusion that the petitioner would continue to indulge in any prejudicial activities in future when released on jail.

11. The grounds of detention dated July 13, 1989, show that, the petitioner was found driving a blue Maruti Car on the night of June 7, 1989 and 206 gold biscuits of foreign origin were recovered from the car. The statements of the petitioner as well as his co-detenus Vijay Kumar, Sanjeev Aggarwal and all other persons who were found in the car were recorded. The petitioner in his statement confessed that he had been visiting Dubai frequently and had been smuggling some goods and gold ornaments for being sold in local market and on his one visit he met Avtar Singh and he entered into agreement with him that he would smuggle gold biscuits to Delhi for selling the same at a commission of Rs. 10 per tola and Avtar Singh had supplied smuggled gold biscuits at his shop in Beadon Pura and the petitioner sold those gold biscuits in Karol Bagh and got his commission and the present gold biscuits were brought in a new Maruti Car by the petitioner at the behest of Avtar Singh and he was to be paid Rs. 20,000/- for the same and he was to hand over the said smuggled biscuits to Vijay Kumar for disposal and services of Sanjeev Kumar were to be also utilised in case of emergency and telephone number of Sanjeev Aggarwal was also made available to the petitioner on a slip which was also recovered from the person of the petitioner.

12. A perusal of the facts above, detailed out in the grounds of detention, clearly show the continuance prejudicial activities of the petitioner. It is also evident from the grounds of detention that the detaining authority was very much aware that the petitioner was in Jail custody and had moved an application seeking bail and the detaining authority was satisfied that there was imminent possibility of petitioner being released on bail and he reached the subjective satisfaction that unless the petitioner is detained, the petitioner would be engaging in transporting and concealing smuggled goods and dealing in smuggled goods in future as well.

13. At the outset I may mention that the petitioner has not come to this Court with clean hands inasmuch as the petitioner suppressed a material fact from the notice of this Court by not disclosing in his writ petition that his bail application was rejected on July 25, 1989, much after he passing of the detention order and even after the detention order had been served on the petitioner. The petitioner intentionally, it appears, did not mention in the writ petition the date of rejection of the bail application. Unfortunately, Shri A. K. Batabyal, Joint Secretary in the Ministry off Finance, Government of India, New Delhi who filed the counter-affidavit (who is the officer who passed the detention order) also in his counter-affidavit misled in making an averment that he was aware of the factum of rejection of bail application of the petitioner at the time he passed the detention order. It is now clear that, the bail application of the petitioner was still pending when the order of detention was passed and served on the petitioner. So, it is due to some mis-apprehension that Shri Batabyal in his affidavit mentioned that he was aware of rejection of the bail application at the time he passed the detention order which fact is obviously against the record. So, at the time the detention order was passed, the bail application of the petitioner was pending and thus, the detaining authority from the material mentioned in the grounds of detention could come to the conclusion that there was possibility of petitioner being released on bail and indulge in such prejudicial activities and there was compelling necessity to pass the detention order.

14. The learned counsel for the petitioner has contended that as the detenu was already in Jail, there was no material present in the grounds of detention which could have justified the passing of the detention order. He has placed reliance on Rameshwar Shaw v. District Magistrate, Burdwan & Another, 1964 (4) SCR 921, (3) N. Meera Rani v. Government of Tamil Nadu & Another, 1989 (4) SCC 418, (4) Smt. Shashi Aggarwal v. State of U. P. & Others, 1938 (1) SCC 436 (5) and Abdul Razak Abdul Wahab Sheikh v. S. N. Sinha, Commissioner of Police, Ahmedabad & Another, JT 1989 (1) SC 478. (6) I have gone through these judgments and I find that the ratio which can be culled out from these judgments is that in case a person is already in judicial custody in a criminal case and his bail application has been rejected, these facts must be placed before the detaining authority and there must be some compelling ground available from the facts necessitating the passing of the detention order. It is laid down that if the bail application of the detenu already stands rejected, there could be very remote possibility of his being released on bail and thus, in such a case it would be futile to pass a detention order in order to prevent him from indulging in any prejudicial activity in future.

15. It depends on the facts of each case in order to determine whether a person, who is already in Jail, should be detained or not. For that purpose the material has to be disclosed in the grounds of detention. If the prejudicial activity of the detenu is of a continuous nature and there is possibility of his being released on bail and the detaining authority is aware of these facts from the material disclosed in the grounds of detention, there is no legal bar in detaining authority reaching the subjective satisfaction that in such a case detention order should be passed. Reference may be made in this connection to the law laid down in Bal Chand Bansal v. Union of India and Others, AIR 1980 SC 1175 (7) and Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177. (8) The learned counsel for the petitioner also made reference to a recent judgment in Criminal Writ Petition No. 179/89, Pallickal Kunhamu Abdul Latheef v. Union of India and Others, decided on January 17, 1990, (9) by Santosh Duggal, J., in which the whole case law has been analysed. Nothing different has been laid down in this judgment from what has been culled out as main principles from the previous judgments. It is evident that if the bail application of a detenu stands rejected, there is no immediate apprehension of his being released on bail. Then, the question of passing any detention order against such a detenu would not arise.

16. Now coming to the facts of the present case, it is clear from the grounds of detention that this petitioner has been indulging in prejudicial activities continuously before he was caught in the present case and his bail application was still pending and there was every possibility of his being released on bail and from such facts the detaining authority, in my opinion, rightly formed the subjective satisfaction that unless the petitioner is prevented by passing of the detention order, he is likely to be released on bail and indulge in prejudicial activities in future. So, I do not find any merit in this ground as well raised by the learned counsel for the petitioner in challenging the detention order.

17. No other point has been urged.

18. I find no merit in this petition which I, hereby, dismiss and discharge the rule.

Writ Petition Dismissed.

Mahesh Kumar Chauhan Banti Petitioner v. Union Of India & Others S

Judgment Summary — P.K. Bahri, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mahesh Kumar Chauhan Banti Petitioner v. Union Of India & Others S

Comments