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Kuldip Singh Vs. the Administrator, Delhi Administration and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 6 of 1980
Judge
Reported in17(1980)DLT532
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3
AppellantKuldip Singh
RespondentThe Administrator, Delhi Administration and anr.
Advocates: Sarjinder Singh and; K.K. Sud, Advs
Excerpt:
- - further, all the alleged incriminating material was with the customs department or those who recommended preventive detention of the petitioner, well before the complaint which was filed in march, 1979. the long interval between the filing of the complaint and the making of the detention order shows that the impugned order has been passed for collatoral reasons and not for reasons postulated by section 3 of the act and thus the detention is punitive in nature; khambra in paragraph 4 of his affidavit states as follows :para4 of the petitioner is not admitted correct in as much as the intelligence available with the authorities indicated that the detenu was indulging in offensive activities. we would not like to say that they are acting in disregard of it. it is unfortunate that the..........19, 1979 almost five months later. further, all the alleged incriminating material was with the customs department or those who recommended preventive detention of the petitioner, well before the complaint which was filed in march, 1979. the long interval between the filing of the complaint and the making of the detention order shows that the impugned order has been passed for collatoral reasons and not for reasons postulated by section 3 of the act and thus the detention is punitive in nature; (2) other facts and material which weighed with the detaining authority, and not only the material which is disclosed in the grounds supplied to the petitioner, is now disclosed in the counter affidavit filed on behalf of the respondent. this would result in violating the fundamental right.....
Judgment:

Prakash Narain, J.

(1) Kuldeep Singh, the petitioner, has been detained by virtue of an order passed by the Administrator, Delhi, under Section 30 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the Act. He has moved us by a petition under Article 226 of the Constitution praying for the issue of a writ of Habeas Corpus or in the nature of Habeas Corpus contending that his detention is in violation of his fundamental rights, as an Indian Citizen, guaranteed by Articles 21 and 22 of the Constitution.

(2) It seems that officers/officials of the Land Custom Department had some information and were watching the activities of some persons alleged to be involved in smuggling and in dealing with foreign watches and foreign straps. It is alleged that on January 21, 1979 the petitioner and one Noor Ali were apprehended near Taj Mahal Hotel, Fatebpuri, Delhi when these two persons brought some contraband watches and straps in four packages. The two persons were produced in the Railway Police Station. The packages were opened and were said to contain imported watches and straps alleged to have been smuggled into India. The watches and straps were seized under Section 110 of the Customs Act, 1962 and the matter was further investigated. The petitioner was an alleged suspect for having committed a crime envisaged by Section 135(b) of the Customs Act, 1962. He was, thereforee, arrested along with Noor Ali. The petitioner was granted bail on February 2, 1979. On February 3, 1979 he allegedly sent a telegram retracting the statements said to have been given by him during investigation conducted by officials of Land Custom Department. Prosecution was launched against the petitioner and others on March 24) 1979 when complaint was filed alleging that the petitioner had committed an offence under Section 135(b) of the Customs Act. It appears that the petitioner could not be served for appearance in Court for sometime. We need not go into the question as to whether the petitioner was evading appearance purposely or not. Suffice it to say that the petitioner did put in appearance in Court on May 17, 1979. The impugned order of detention was passed on June 14, 1979 by the Administrator of the Union Territory of Delhi but the formal order was issued on June 19, 1979. This order could not be served for one reason or the other on the petitioner. In the meanwhile in the criminal prosecution petitioner's bail was cancelled on July 10. 1979 and he was sent to Jail While in jail the detention order was served on him on October 23, 1979. The grounds of detention required to be served on the petitioner by Sub-section (3) of Section 3 of the Act and as postulated by Clause 5 of Article 22 of the Constitution were also given to the petitioner on October 23, 1979. He made an application on October 24, 1979 for supply of copies of documents. This application was dispatched from the jail to Delhi Administration on October 29, 1979. The documents. were supplied to the petitioner on November 6, 1979. He made a representation against the detention order on November 19,1979. The meeting of the Advisory Board which was scheduled for November 28, 1979 was preponed to November 21, 1979. The Advisory Board looked into the matter and made its recommendations. The representation of the petitioner was rejected by the Administrator on December 4, 1979. The detention was confirmed after receipt of the report of the Advisory Board on December 17, 1979.

(3) The petitioner contends that his detention is liable to be quashed for, inter-alia, the following reasons :

(1)That the satisfaction of the detaining authority is unreal as there is a single incident in which the petitioner was allegedly involved and that incident was on January 21, 1979 while the order of detention has been made on June 19, 1979 almost five months later. Further, all the alleged incriminating material was with the Customs Department or those who recommended preventive detention of the petitioner, well before the complaint which was filed in March, 1979. The long interval between the filing of the complaint and the making of the detention order shows that the impugned order has been passed for collatoral reasons and not for reasons postulated by Section 3 of the Act and thus the detention is punitive in nature; (2) Other facts and material which weighed with the detaining authority, and not only the material which is disclosed in the grounds supplied to the petitioner, is now disclosed in the counter affidavit filed on behalf of the respondent. This would result in violating the fundamental right guaranteed by Clause 5 of Article 22 of the Constitution; (3) Reading the grounds and the counter affidavit on the one hand and the detention order on the other it is obvious that there is no application of mind by the detaining authority because the detention order gives only one ground for detention whereas more than one are disclosed in the grounds supplied to the petitioner and as now disclosed in the affidavit; (4) Delay in supplying copies of documents to the petitioner and the long unexplained delay in considering the representation results in infringement of Clause 5 of Articles 22 of the. Constitution.

(4) By way of return to the rule nisi two affidavits has been placed on record. One is sworn by Sh. D. R. Kohli the then Administrator of the Union Territory of Delhi and the other is sworn by Sh. W. C. Khambra, Under Secretary (Home/P), Delhi Administration. The Administrator's affidavit is a short one. He has stated that there has been no delay in considering the representation made by the petitioner and that while rejecting his representation he was not influenced by the opinion of the Advisory Board as indeed he had no occasion to see the same by the date he passed orders rejecting the representation made by the petitioner. The Administrator admits that the proposal for preventive detention of the petitioner under the Act emanated from the Customs Department but he denies that his order was passed mechanically without application of mind. He admits that the fact of the criminal prosecution being launched against the petitioner was within his knowledge when he made the order of detention. Sh. Khambra in his affidavit has disputed the contention raised by the petitioner. It may be advantageous to read a few paragraphs of his affidavit in some detail.

(5) In paragraph 4 of the petitioner the petitioner has contended that after his release on bail on February 3, 1979 he had done nothing nor was he concerned with any activity which could be regarded as pre-judicial and falling within the ambit of the Act. In reply to this contention Sh. Khambra in paragraph 4 of his affidavit states as follows :

'PARA4 of the petitioner is not admitted correct in as much as the intelligence available with the authorities indicated that the detenu was indulging in offensive activities.'

(6) Grounds Xiii and Xiv in the petitioner contain two of the submissions made on behalf of the petitioner which we have noticed earlier These are with regard to material being available with the Customs Department at least by the date when a complaint was filed against the petitioner and yet there being delay in detention order being made in June, 1979. Also these grounds deal with the allegation that it appears that the detention orders were passed for a collateral purpose. As we have noticed earlier the Administrator has denied this. As far as Sh. Khambra is concerned, he not only denies but also asserts that the proposal of the Land Customs Department submitted to the Delhi Administration on May 15, 1979 was duly I processed by the Screening Committee and thereafter the papers were placed before the Administrator who passe 1 the order of detention on June 14, 1979.

(7) We have had the advantage of not only hearing arguments from the learned counsel but ourselves perusing the record very fairly placed before us by the learned standing counsel. On a perusal of the record we are of the view that some if not all the contentions of the petitioner must be upheld.

(8) It is really unfortunate that despite the fact that the law regarding preventive detention has been pronounced by the Supreme Court and the High Court for over three decades, the administrative authorities have not benefited from these pronouncements. We would not like to say that they are acting in disregard of it. Liberty is sacred. All the same in the interest of the community and the nation our Constitution permits that an individual's liberty may be interfered with even by preventive detention as opposed to punitive detention. The only requirement is that a person should be deprived of his liberty strictly in accordance with procedure established by law. If this procedure is not followed then however grieveous the crime alleged against a person he cannot be deprived of his liberty. The preventive detention under the Act must be only for the purposes mentioned in Section 3 thereof. It cannot be for a collateral purpose. The record shown to us makes it absolutely clear that the detention of the petitioner was proposed and ordered not merely to prevent him from indulging in suspected activity of transporting smuggled goods but also to prevent him from interfering with witnesses in criminal prosecution. That would have justified an application for cancellation of bail instead of the Land Customs Department proposing punitived etention because the petitioner was on bail. It is unfortunate that the Delhi Administration as well as the Administrator became party to such proposal. Indeed it seems, according to the record, that they were not unwilling parties. This would completely vitiate the detention as being for collatoral purpose and not for the purpose postulated by Section 3 of the Act.

(9) In the view that we have taken it may not be necessary to deal with the other grounds raised by the petitioner. We thereforee, make the rule absolute, quash the impunged order of detention dated June 19, 1979 and direct the respondents to release the petitioner forthwith unless validly required under any other Jawful warrant.


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