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Kailash Chand Goyal Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 139 of 1983
Judge
Reported in1984CriLJ1039; 1984(1)Crimes703; 25(1984)DLT241; 1984RLR278
ActsPrevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Sections 3(1)
AppellantKailash Chand Goyal
RespondentThe State and ors.
Advocates: F. Anthony,; R.P. Yadav,; R.N. Mittal and;
Cases Referred and Sk. Nizamuddin v. State of West Bengal
Excerpt:
.....was recommended that kailash chand goyal be preventively detained. sethi, learned counsel for the respondents, submitted that those two statements were not placed before the detaining authority as those were not available with the department of food and supplies when the case for the detention of the petitioner was recommended by them. these two statements as well as the statement recorded on 30th november, 1982, have also been recorded under section 132 of the income-tax act. (11) it is well-settled that the subjective satisfaction requisite on the part of the detaining authority gets vitiated if material or vital facts which would have a bearing on the issue and would or could influence the mind of the detaining authority one way or the other are ignored or not considered by it before..........by them from the income-tax department. one of the documents was a copy of the statement of the detenu recorded on 30th november, 1982 by the income-tax department under section 132 of the income-tax act. as noticed above that statement is specifically referred to in the grounds of detention. however, the two earlier statements recorded under section 132 of the income-tax act on 7th september 1982, at the time of raid were not considered as those were not placed before the administrator. (6) according to the learned counsel for the petitioner the statements of the detenu recorded on 7th september, 1982, wherein he gave a version different than the one given in his statement recorded on 30th november 1982, constitute vital and material facts and if considered would have influenced the.....
Judgment:

Charanjit Talwar, J.

(1) This is a petition under Article 226 of the Constitution of India seeking issuance of a writ of habeas Corpus for release of the petitioner Kailash Chand Goyal. The detenu has been detained under the order passed by the Administrator of the Union Territory of Delhi in exercise of the powers conferred by section 3(1) read with section 2(c) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community. The impugned order was passed on 15th October, 1983.

(2) The grounds of detention bearing the same date were served on the detenu on 21st October, 1983 when he was lodged in central jail, Tihar. One of the grounds is that the detenu in his statement made under section 132 the Income-tax Act on 30th November 1982, admitted having unauthorisedly and for profit diverted essential commodities which he used to get at subsidized rates from the fair price shops.

(3) A contention urged by Mr. Frank Anthony, learned counsel for the petitioner, is that as the earlier statements of the detenu, which were also recorded under section 132 of the Income-tax Act, have not been considered by the detaining authority, the detention is vitiated.

(4) To appreciate this submission it is necessary to notice certain admitted facts. On 7th September, 1982, a raid was conducted by the income-tax authorities under section 132 of the Income-tax Act at the detenu's business as well as residential premises. During the course of the search, 284 ration cards in the names of various consumers along with 78 rubber stamps pertaining to various fair price shops were seized. Two separate statements of the detenu under section 132 of the Income-tax Act, one made at L-1 Green Park Extension Market and the other at J-3A, Green Park Extension, New Delhi, were recorded by the Income-tax Officer in the presence of witnesses.

(5) A news-item regarding the raid alleging that an illiterate middle aged man had made a fortune through his ration shops in South Delhi, and bad been caught by the Income-tax department for evasion of tax worth severallakhs of rupees appeared in the press on 6th October, 1982. The press clippings were forwarded by the Director of Information and Publicity, Delhi Administration, to the office of the Deputy Commissioner, Food and Supplies Department, Delhi Administration on the same day. On 12th October, 1982, Shri Tejinder Singh, Deputy Commissioner (Inspection), Income-tax department was requested by Food and Supplies Department of the Administration to give the details of the bogus ration cards and the other connected documents winch had been seized by the income-tax authorities. By a letter dated 13th December, 1982, Shri Tejinder Singh confirmed in writing that certain ration cards and rubber stamps of the officials of the department of Food and Supplies were recovered in the raid conducted under section 132 of the Income-tax Act at the premises in question. He suggested that a date be fixed with the concerned Assistant Director Income-tax for examination of the material seized during the raid. Thereafter, the Assistant Commissioner (Enforcement) of the Food and Supplies Department who had been deputed to take necessary action, vide his interim report dated 22nd February, 1983, informed the higher authorities of his department that he had scrutinized some of the record. He reported that as the records were voluminous it would take him at least three more days for a detailed examination. It appears that by 28th February, 1983, that officer had examined all the record excepting for the ration cards which were in a sealed box. He made a report to that effect on that day. Vide another report dated 8th March, 1983, it was intimated to the superior officers of the department that it was not possible to inspect the ration cards as the sealed box containing those cards could only be opened in the presence of Shri Kailash Chand Goyal for whose presence summons had been issued twice but he had not turned up. In a further report dated 13th April, 1983, the Assistant Commissioner (Enforcement) reported that ration cards could not be inspected and hence had not been checked. It was thereafter that the permission of the Commissioner of Income-tax, New Delhi, was sought, to get copies of certain documents. An application was moved for supply of a copy of the statement of Kailash Chand Goyal which he had made to the Income-tax authorities on 30th November, 1982, and also for the list of food cards as well as impressions of the rubber stamps recovered from the residence of the detenu. In the month of August, 1983, on receipt of the inventory of the ration cards and copies of other documents a detailed investigation was carried out. It was found that 82 of the ration cards were not genuine. Thereafter it was recommended that Kailash Chand Goyal be preventively detained. The department of Food and Supplies, Delhi Administration, while recommending the detention of petitioner under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, placed before the Administrator, Union Territory of Delhi, not only the investigation report but also copies of documents obtained by them from the Income-tax Department. One of the documents was a copy of the statement of the detenu recorded on 30th November, 1982 by the Income-tax Department under section 132 of the Income-tax Act. As noticed above that statement is specifically referred to in the grounds of detention. However, the two earlier statements recorded under section 132 of the Income-tax Act on 7th September 1982, at the time of raid were not considered as those were not placed before the Administrator.

(6) According to the learned counsel for the petitioner the statements of the detenu recorded on 7th September, 1982, wherein he gave a version different than the one given in his statement recorded on 30th November 1982, constitute vital and material facts and if considered would have influenced the mind of the detaining authority one way or the other.

(7) Mr. D.R. Sethi, learned counsel for the respondents, submitted that those two statements were not placed before the detaining authority as those were not available with the department of Food and Supplies when the case for the detention of the petitioner was recommended by them. He submitted that copies of those two statements were obtained from the Income-tax Department after passing of the detention order. Those copies have now been annexed as R/19 and R/24 with the additional affidavit dated 21st January, 1984, filed on behalf of the respondents.

(8) To satisfy ourselves about the true factual position we called for the relevant official file and the same was placed before us by the department for our perusal. It is true that copies of those two statements recorded on 7th September, 1982, were not in possession of the department at the time when the case for detention of the petitioner was initiated. However, it is abundantly clear that the Assistant Commissioner (Enforcement) of the department had carried out inspection of all the documents excluding the ration cards by 28th February, 1983. It is so stated by him in so many words in his reports dated 28th February and 13th April, 1983. By the time an application was made for obtaining copies of documents he was aware of the subsequent statement made by the petitioner on 30th November 1982. There can be no manner of doubt that the officer concerned had gone through the Panchnamas made on the date of the raid by the Income-tax Department.

(9) The statements were made by the petitioner immediately after the raid was conducted by the income-tax authorities under section 132 of the Income-tax Act. A copy of the Panchnama placed on record as Annexure R/19 states the 'In the course of the search the authorised officer Shri A..D.K. Mahajan recorded the statement of Shri Kailash Chand Goel on Solemn affirmation/oath in our presence. No coercion, threat, inducement, promise or other undue influence was brought to bear on Shri Kailash Chand Goel the above deponent. The statement was read over by explained in the local language Hindi to the deponent who signed the statement in token of having understood its contents and of agreeing that it had been correctly recorded'. Attached with this Panchnama is the statement of the detenu recorded at L-1 Green Park Extension. A copy of Panchnama Annexure R/21 also duly signed by the authorised officer, Panchas and detenu, contains a column regarding recording of the statement on oath. However, the name of the deponent has not been filled in. The statement recorded at premises J-3A is attached with the Panchnama. These two statements as well as the statement recorded on 30th November, 1982, have also been recorded under section 132 of the Income-tax Act. The apparent difference is that the later statement is inculpatory.

(10) We have no doubt in our mind that the earlier statements are not only material but vital. These have been withheld from the detaining authority. The argument that only those documents which were in possession of the department could be placed before the detaining authority is misconceived. A copy of the inculpatory statement was obtained but not of the earlier statements. Vital and material documents being available with the State, it was not open to the Food & Supplies Department to pick and choose and in the process not to place the earlier statements before the detaining authority.

(11) It is well-settled that the subjective satisfaction requisite on the part of the detaining authority gets vitiated if material or vital facts which would have a bearing on the issue and would or could influence the mind of the detaining authority one way or the other are ignored or not considered by it before issuing the detention order. (See Asha Devi v. K. Shivrai and another Air 1979 SC 447 and Sk. Nizamuddin v. State of West Bengal, : 1975CriLJ12 ).

(12) The detention order is thus liable to be quashed on this ground alone. We need not consider other grounds of challenge. The order passed on 15th October 1983, is consequently quashed. The rule is made absolute. The detenu Kailash Chand Goyal is directed to be set at liberty forthwith unless required to be detained under any other valid order of detention or any order of a Court.


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