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Balbir Singh Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 78 of 1984
Judge
Reported in1985(1)Crimes929; 26(1984)DLT413; 1984RLR564
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1)
AppellantBalbir Singh
RespondentUnion of India and ors.
Advocates: N.C. Chawla,; Trilok Kumar and; R.M. Bagai, Advs
Cases ReferredSk. Abdul Munnaf v. The State of West Bengal
Excerpt:
- - collector (customs), palam, after thoroughly scrutinising the material gathered, the case was recommended on 7-10-1983 to the collector of customs for initiating action against the petitioner under the cofeposa act. however, the list of documents filed with the grounds of detention shows that pre-charge evidence was as well placed before the detaining authority......which were translated in various languages, viz., hindi, english & urdu. since there were 7 detenu persons and all had to be supplied copies of these documents in the languages understood by them and the number of pages being nearly 600, it took about 2 months' time for getting the same done. the entire process was completed on 21st may, 1984 and- after that on the next day, i e. 22nd may, 1984 the detention orders were passed against the petitioner and others.'(5) as per this explanationn, the last of the statements was recorded on 29-4-1983. that was of kanhiya lal. the show-cause notice under section 124 of the customs act pertained to the confiscation of the goods, and thereforee had little bearing on the detention aspect. the facts constituting the incident of 28-3-1983 and.....
Judgment:

D.R. Khanna, J.

(1) By this writ of habeas corpus, the detention of Balbir Singh @ Pappu Singh under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is sought to bequashed. That order was made by the Administrator of the Union Territory of Delhi on 25-5-1984, and it was mentioned that this was with a view to prevent him from abetting the smuggling of goods viz. wrist watches straps etc.

(2) In the detailed grounds of detention attached with the detention order, it was mentioned that one Rameshwari Devi who used to collect rubbish at the Palam Airport, was apprehended while removing a card-board box containing four packets from the International Departure Hall near Immigration counter on 28-3-1983. Those packets were found to contain 461 wrist watches and 119 watch straps collectively valued at Rs. 61.790.00 (c.i.f.). They were seized under Section 110 of the Customs Act. Her personal search further revealed that she was in possession of Rs. 2400.00 which too were seized. Investigation next revealed that one transit passenger Irshad Ahmed, a Pakistani passport holder, had delivered those packets. His luggage was searched resulting in recovery of 180 wrist watches and three packets of watch parts and 2000 pieces of integrated circuits, collectively valued at Rs. 55,000.00 . Irshad Ahmed mentioned the name of Ram Kewal to whom he handed over the four packets of watches and straps to be delivered to one Kanhiya Lal who in turn had to hand them over to one Raja staying at D-10, Rajouri Garden, New Delhi. It was Ram Kewal who had in turn asked Rameshwari to take those packets outside from there. That Rajpuri Garden property belongs to Mohan Singh and his brother Balbir Singh who is the detenu in the present case. Raja @ Mohd. Riaz Khan and Mohan Singh were said to be involved in the business of smuggling and in this activity Balbir Singh was abetting them. I need not reproduce here the other details of the statements of different persons which the custom officials recorded in order to bring out the chain how several persons have b;en conniving in the acts of smuggling. A complaint already stands filed against them by the custom authorities on 29-3-1983. I have refrained from elaborating here that chain and the broad outlines of the case set up in that complaint as the factual appraisement is not within the province of this Court unless it could be shown that it was a mere pretence or no reasonable man could have in any case considered the complicity of the detenu in the same to exist. The subjective satisfaction in that regard primarily has to be of the detaining authority.

(3) However, there are grounds which otherwise call for the quashing of the detention order. The purpose of detention is to act with promptitude so that further course of conduct of the detenu in furtherance of his designs to pursue unlawful activity is set at naught. For this, the acts already committed by him should provide close proximity to the future designs necessitating detention. As such time lag unless reasonably explained, may not justify belated detention. The past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. Of course, no rigidity is involved in this, and it depends on the facts and circumstances of each case. If in a given case the time lag between the prejudicial activity of the detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the . prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of opportunity having been afforded to it, as serious infirmity would creep into the detention order. See in this regard Sk. Abdul Munnaf v. The State of West Bengal 1974 SCC (Cri) ( 857).

(4) Now in the present case the incident was of 28-3-1983 and the complaint by the custom authorities was filed in court on the next day. By then the statement of the persons concerned had already been recorded by the custom officials. The list of documents attached with the grounds of detention which the detaining authority served upon the detenu showed that the last of the documents referred to was of 12th April, 1983. If that was so, the detention order made after about 14 months of the incident would appear to be highly belated. In the counter-affidavit which C. P. Tripathi, Deputy Secretary (Home), Delhi Administration, has filed, the delay has been explained as under:-

'THERE is no undue delay in passing the detention order against the petitioner. The goods in question were seized on 28-3-1983. Since number of persons were involved in the smuggling activities in this case, they had to be traced and interrogated. Lastly statement of Kanhiya Lal was taken on 29-4-1983 as a follow up action. Show cause notice under section 124 of the Customs Act issued on 19-9-1983. After this, entire material was thoroughly scrutinised at the level of Addl. Collector (Customs), Palam, After thoroughly scrutinising the material gathered, the case was recommended on 7-10-1983 to the Collector of Customs for initiating action against the petitioner under the Cofeposa Act. After examining the case, the Collector of Customs at the Headquarters, sent the case to the Delhi Administration for detaining the petitioner under the Cofeposa Act on 28-11-1983. After this, meeting of Screening Committee took place on 19th December. 1983. But, since there were several earlier proposals, this proposal could not be taken up in that case. Next meeting was held on 28-12-1983-but against due to consideration of other cases in hand, the instant case could not be taken by the Screening Committee. The next meeting was scheduled to be held on 18th January, 1984, but, it was not held and was adjourned to 21st January, 1984. The present case was considered and approved by the Screening committee on 21st January, 1984. After that, the case was examined in the Law Branch and ultimately placed before the Administrator, Delhi on 21st March, 1984. The Detaining Authority after examining the case, passed the detention order on 22nd March, 1984. Thereafter, steps were taken to get grounds of detention, copies of documents relied by the Detaining Authority, which were translated in various languages, viz., Hindi, English & Urdu. Since there were 7 detenu persons and all had to be supplied copies of these documents in the languages understood by them and the number of pages being nearly 600, it took about 2 months' time for getting the same done. The entire process was completed on 21st May, 1984 and- after that on the next day, i e. 22nd May, 1984 the detention orders were passed against the petitioner and others.'

(5) As per this Explanationn, the last of the statements was recorded on 29-4-1983. That was of Kanhiya Lal. The show-cause notice under Section 124 of the Customs Act pertained to the confiscation of the goods, and thereforee had little bearing on the detention aspect. The facts constituting the incident of 28-3-1983 and the involvement of the present detenu in the abetment of the smuggling activity had thus already been gathered by the custom authorities by the end of March, 1983 or at the most in the month following. If those acts and the material provided the nexus and proximity to detention, the same would have followed shortly thereafter and not remained in abeyance for a long period of 14 months. The said affidavit discloses that the matter relating to initiation of action under the Cofeposa Act remained pending with the Collector of Customs up to 28-1-1983. What transpired in between and whether there existed reasonable ground to delay the matter for so long, has not been explained by any affidavit of custom authorities. Thus there was a vacuum of time lag. Thereafter it is not understood why the matter should have been allowed do drift for a further period of about six months. The Screening Committee to which the matter was referred for some period, could only be for the purpose of scrutiny, and in case the detention was dictated by urgent compelling factors, it should not have been allowed to hang on there. the course of events reflects that promptitude and urgency was not weighing in any manner with the detaining authority That by itself should prove fatal to the detention order. In this regard, it may be mentioned that (no other unlawful activity is imputed to the detenu nor is he said to be having any past background in this direction?)

(6) In the grounds of detention, the detaining authority has referred to the statements of Irshad Ahmed and Mohd. Riaz Khan which were recorded by the custom officials with regard to the incident of 28-3-1983, and the resultant order of detention being made. However, on 12-4-1983, both these persons had submitted in writing representations before the Chief Metropolitan Magistrate to the effect that their statements had been recorded under coercion and pressure, and that they had not voluntarily made them They thus retracted from those statements. These retractions should , have been brought to the notice of the detaining authority. There is nothing to show that this was actually done. The retractions could cost a cloud over the statements recorded earlier of those persons and the circumstances. Had they been placed before the detaining authority, the detention might not have been ordered. The material evidence was thus with held from consideration of the detaining authority. The Explanationn given in this regard by the State has been that those retractions were addressed to the Chief Metropolitan Magistrate and not to the custom authorities, and, thereforee, the latter could not have known them. However, the list of documents filed with the grounds of detention shows that pre-charge evidence was as well placed before the detaining authority. That pre-charge evidence was what had been recorded - by the Chief Metropolitan Magistrate in the course of the complaint filed by the custom authorities. Thus what formed part of the record of that case could be taken to be within the knowledge of the custom authorities, and, thereforee, they cannot pose ignorance about the same. This is another ground on which the detention is liable to be set aside.

(7) These being basic infirmities in the detention order, I need not go into some other contentions raised from the side of the petitioner. The mere fact that the detenu did not seek consideration of the matter by the Advisory Board should not prevent recourse to the present writ if it is felt that the detention order is otherwise unsound and not sustainable in law.

(8) The result, thereforee, is I while allowing this writ petition, quash the detention order of Balbir Singh. He be set at liberty forthwith, unless wanted in any other case.


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