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Daya Shankar Kapoor Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1976CriLJ221
AppellantDaya Shankar Kapoor
RespondentUnion of India (Uoi) and ors.
Excerpt:
- - kapoor, district magistrate, delhi am satisfied that with a view to preventing the person known as shri daya shankar kapoor son of late shyam lai, who is ordinarily a resident of 14/36, shakti nagar, delhi, from smuggling goods, or dealing in smuggled goods, it is necessary to make an order directing that the said shri daya shankar kapoor be detained; (ii) you have been involved in the following specific cases relating to smuggling, abetting of smuggling and dealing in smuggled goods (iii) there is reliable evidence of your having links with other smugglers......act, 1971, i hereby direct that the said shri daya shankar kapoor be detained.sd/- v. k. kapoordistrict magistrate, delhi.dated the 24thseptember, 1974.2. subsequently, an order under section 8 of the misa containing the grounds of detention was passed by the district magistrate, delhi, on september 28, 1974. this order contained the following three main grounds, namely,(i) you are a bullion dealer and have been persistently active in smuggling gold and dealing in smuggled gold for over a decade.(ii) you have been involved in the following specific cases relating to smuggling, abetting of smuggling and dealing in smuggled goods(iii) there is reliable evidence of your having links with other smugglers. the following specific instances are mentioned.under main ground no. (ii),.....
Judgment:
ORDER

WHEREAS, I. V. K. Kapoor,

District Magistrate,

Delhi am satisfied that with a view to preventing the person known as Shri Daya Shankar Kapoor son of late Shyam Lai, who is ordinarily a resident of 14/36, Shakti Nagar, Delhi, from smuggling goods, or dealing in smuggled goods, it is necessary to make an order directing that the said Shri Daya Shankar Kapoor be detained;

Now, thereforee, in exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 3, read with Sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971, I hereby direct that the said Shri Daya Shankar Kapoor be detained.

Sd/- V. K. Kapoor

District Magistrate, Delhi.

Dated the 24th

September, 1974.

2. Subsequently, an order under Section 8 of the MISA containing the grounds of detention was passed by the District Magistrate, Delhi, on September 28, 1974. This order contained the following three main grounds, namely,

(i) You are a bullion dealer and have been persistently active in smuggling gold and dealing in smuggled gold for over a decade.

(ii) You have been involved in the following specific cases relating to smuggling, abetting of smuggling and dealing in smuggled goods

(iii) There is reliable evidence of your having links with other smugglers. The following specific instances are mentioned.

Under main ground No. (ii), reference was made to specific cases (a) to (f) and under main ground No. (iii), specific instances (a) to (e) were stated. It would be sufficient for the purpose of the present petition to reproduce specific case (a) under main ground No. (ii):

(a) In September, 1961, during the course of scrutiny of the records of the refinery of M/s. R. K. Chander Bhan and R. B. Chander Bhan Multani, it was observed that large quantities of gold had been tendered by Ishwar Chand and Hari Chand on your behalf and on behalf of one Salig Ram, both of M/s. Kapoor Brothers, Bullion Merchants, Chandni Chowk, Delhi. In a statement recorded during the course of investigation it was admitted that the gold had been supplied to you by some persons of Amritsar on the 26th September, 1961 and that you had melted the gold and had mixed some alloy in it so that it could be tendered in the refinery for changing its shape. On that day, 1,979.750 gms. of gold was seized in this case.

3. The detenu filed a petition in this Court, namely, Cr. W. Petition No. 37 of 1974, under Article 226 of the Constitution challenging the validity of the detention order passed against him. By its judgment in the said criminal writ petition dated November 22, 1974, this Court held that the order of detention was illegal and^ quashed the same and directed that the detenu should be released forthwith. The order of detention was quashed on the following grounds, namely,

(i) By the use of the disjunctive in the order of detention, the District Magistrate was not certain whether he was detaining the petitioner in order to prevent him from smuggling goods or from abetting other persons to smuggle goods or from dealing in smuggled goods, and that without applying his mind, he had merely mechanically reproduced the language of Section 3 (1) (c) of the Act. This uncertainty and lack of application of mind cannot amount to the subjective satisfaction of the District Magistrate as is required under Section 3 (1) (c) of the Act. The order of detention, thereforee, has been passed by the District Magistrate without his subjective satisfaction and as such, it is not an order in accordance with Section 3 (1) (c) of the Act (MISA).

(ii) Ground No. (i) mentioned in the grounds of detention was vague and that either there were no other facts or particulars apart from those stated in the ground which had been considered by the District Magistrate or that if he had taken some other facts and particulars into consideration, which have not been stated in the ground, the claim of privilege in respect of such facts was mala fide.

(iii) With regard to ground No. (ii) (a), the District Magistrate had not taken into consideration certain relevant facts, namely, that the gold which had been seized had been returned to the petitioner under the orders of the Government, and that, thereforee, this ground was irrelevant for the purpose of passing the detention order.

4. In pursuance of the judgment of this Court, referred to above, the detenu was released from detention on the tame date. Subsequently on 13-12-1974, Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act No. 52 of 1974 (hereinafter referred to as the Act) and the Act came into force on 19-12-1974. By Section 14 of the Act, the Ordinance No. 11 of 1974 which amended the MISA was repealed. On 4-2-1975, an order of detention under Section 3 (1) of the Act was passed against the detenu and it was served upon him on 5-2-1975 and he was arrested and detained in custody. This order of detention is in the following terms:

DELHI ADMINISTRATION: DELHI No. F.2(8)/75-Homc (II) (3) dated the 4th

February, 1975.


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