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

LegalCrystal Citation
Overruled ByRajendra Kumar Natvarlal Shah v. State of Gujarat
SubjectCriminal;Customs
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 124 of 1985
Judge
Reported in28(1985)DLT493; 1985RLR507
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 2
AppellantBhupinder Singh
RespondentUnion of India and ors.
Advocates: Harjinder Singh and; R.M. Bagai, Advs
Cases ReferredRamash Lal. v. The Administrator and
Excerpt:
.....on 23rd may 1985. on 31st may, 1985, a declaration under section 9(1) of the act was made by the additional secretary to the government of india on being satisfied that the petitioner herein was likely to smuggle goods into delhi airport which is an area highly vulnerable to smuggling as defined in explanationn i to section 9(1) of the act......with the connivance and help of bhupinder singh, the petitioner, who was employed as inspector of customs, goods were got cleared by paying nominal duty. (4) the petitioner was suspended from service on 28th june, 1984. thereafter, a show-cause notice was served on him by the collector of customs on 6th november, 1984. on 29th november, 1984, a complaint was filed for offences under section 135(1) and section 1 of the act read with section 120-b of the indian penal code by the collector of customs against the petitioner and his co-conspirators in the court of additional chief metropolitan magistrate, new delhi. during the pendency of the trial the impugned detention order was passed on 26th aparil. 1985. it is the case of the petitioner that the was arrested on 1st may, 1985, and was.....
Judgment:
Charanjit Talwar, J.

(1) The petitioner, Bhupinder Singh, challenges the legality of the detention order passed by the Administrator of the Union Territory of Delhi on 26th April, 1985, in exercise of the powers conferred on him by section 3(1) read with section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein called 'the Act'), with a view to preventing the petitioner from smuggling goods into India and also with a view to preventing him from engaging in ransporting, concealing and keeping smuggled goods. By virtue of the said order the petitioner is detained in Central Jail Tihar, Delhi. The grounds of detention also dated 26th April, 1984 were served on the petitioner, on 4th May, 1985.

(2) It is mentioned in the grounds of detention that the Directorate of Revenue Intelligence had received information during the months of March/ April, 1984 that a gang of smugglers was indulging in smuggling of contraband goods through the Central Warehousing Corporation, Gurgaon Road, New Delhi, with the connivance of officers of customs posted there. The petitioner was one of those officers. A specific intelligence was gathered by the officers of the Directorate of Revenue Intelligence to the effect that 18 packages containing contraband goods concealed in trunks and cardboards which contained air-conditioners, televisions. Videos, had been forwarded from Singapore to New Delhi vide consolidated Airway Bill No. 074-974885 in the name of M/s Air Freight Pvt. Ltd., Second Floor, Ansal Bhawan New Delhi, Those packages had arrived at Delhi Airport on 22nd April, 1984, and were deposited in the Central Warehousing Corporation, Gurgaon Road. Those were to be cleared with the connivance of the officers of the customs posted at the said Warehousing Corporation without payment of duty or with huge evasion of customs duty. On 9th May, 1984, 16 packages out of the 18 packages were found available there. Those were opened and contraband goods valued at Rs. 8,24,950.00 were recovered there from. Those were seized under the provisions of the Customs Act, 1960. It was discovered that delivery of two of those 18 packages had already been taken by one Swinder Singh on 2nd May, 1984. On search of his residential premises on 10th May, 1984, goods valued at Rs. 18.900.00 along with highly incriminating documents showing transactions of sale proceeds of smuggled goods were recovered. The said Swinder Singh was arrested. Searches were also conducted at the houses of the other members of the gang, which resulted into recovery of foreign currency and incriminating documents.

(3) In his statement one of the members of the gang, Ashok admitted that on three earlier occasions with the connivance and help of Bhupinder Singh, the petitioner, who was employed as Inspector of Customs, goods were got cleared by paying nominal duty.

(4) The petitioner was suspended from service on 28th June, 1984. Thereafter, a show-cause notice was served on him by the Collector of Customs on 6th November, 1984. On 29th November, 1984, a complaint was filed for offences under section 135(1) and section 1 of the Act read with section 120-B of the Indian Penal Code by the Collector of Customs against the petitioner and his co-conspirators in the Court of Additional Chief Metropolitan Magistrate, New Delhi. During the pendency of the trial the impugned detention order was passed on 26th Aparil. 1985. It is the case of the petitioner that the was arrested on 1st May, 1985, and was lodged in Central Jail Tihar. The grounds of detention were served on him on 4th May, 1985. On 18th May, 1985, the petitioner sent a representation through the Superintendent of Tihar Jail requesting for supply of copies of some documents which, according to him, had been relied upon by the detaining authority. Representations were also sent to the Central Government and to the Advisory Board seeking setting aside of the detention order on 23rd May 1985. On 31st May, 1985, a declaration under section 9(1) of the Act was made by the additional Secretary to the Government of India on being satisfied that the petitioner herein was likely to smuggle goods into Delhi airport which is an area highly vulnerable to smuggling as defined in Explanationn I to section 9(1) of the Act. By an order dated 15th July, 1985, petitioner's representation which he had sent through the Superintendent of Jail and had been received by the Delhi Administration on 25th May, 1985 was rejected,

(5) Mr. Harjinder Singh, learned counsel for the petitioner, has sought quashing of the order of detention on the pleas that the inordinate delay in passing the detention order after the investigations were over is in violation of the fundamental rights guaranteed to the petitioner and further the continued detention is vitiated on account of un-explained delay considering the representation dated 14th May, 1985, sent by the petitioner. It is further contended that non-supply of the documents which were in the power possession of the respondents vitiates the detention order in as much as he was denied the rights to make an effective representation.

(6) In our view, the order of detention and the continued detention of the petitioner is liable to be quashed on the first ground itself which has been urged by Mr. Harjinder Singh. In that view of the matter it is not necessary to deal with the other grounds of challenge.

(7) In the writ petition it has specifically been averred in ground No. 6 that there is a delay of one year in making the order of detention from the date of the alleged incident, i.e., 9th May, 1984. In the return, in reply to grounds 7 and 8 it is denied that there has been any undue delay in passing the detention order. It is useful to quote the reply :

'7. Para 7 is wrong and denied. The proceedings under the preventive detention are different to adjudication/prosecution proceedings. There is no bar of passing order of preventive detention under Cofeposa Act while other proceedings are pending or are likely to be launched as held by the Hon'ble Supreme Court of India in several cases.

8. Para 8 is wrong and denied. The factum of suspension of the petitioner was duly placed before the detaining authority at the time of passing the detention order. It is pertinent to submit that the grave man of the charge against the petitioner is not only of clearing the goods in an illegal manner but also his direct involvement in the smuggling activities by investing substantial amount of money.'

(8) As will be seen from the above there is absolutely no Explanationn coming forth as to why the detention order was passed after five months of the filing of the complaint in the criminal court. As noticed above, the complaint was filed on 29th November, 1984. Show cause notice had been issued even earlier on 6th November, 1984. it is apparent that the investigations by then were concluded.

(9) Mr. Bagai, learned counsel for the respondents. However, contended that perusal of the record explains the delay. He placed the same for our perusal. We find that the proposal for detaining the petitioner was received in the office of the Home Secretary, Delhi Administration, on 22nd November, 1984, i.e. about a week before filing of the complaint against the petitioner in the Criminal Court. The proposal was placed before the screening committee on or about 11th December, 1984. It appears that as certain information was required, the meeting was adjourned to 14th December, 1984, on which date the proposal was approved. Thereafter, on the file there is no indication as to what happened uptil 28th February, 1985, when draft grounds were put up. Those grounds were sent to the law department who settled the same on 1st March, 1985, i.e. within a day. On 2nd March, 1985, some documents were sent to Amritsar for translating them into Punjabi Those were received on 6th April, 1985. The case was placed before the Deputy Secretary, Home, on 10th April, 1985, who sent the file to the Home Secretary on 15th April, 1985. The Home Secretary seat it to the Administrator who approved the proposal for detention on 18th March. 1985. Thereafter, the formal detention order was passed on 26th April, 1985,

(10) As noticed earlier, in the return there is no Explanationn about the delay in the official record from 14th December, 1984, to 28th February, 1985. We find ourselves unable to agree with the counsel for the respondents that in the file there is an Explanationn, much less satisfactory Explanationn. In our opinion, the gap between 14th December, 1984, to 28th Februry, 1985, reveals complete disregard of the requirement of urgently dealing with cases involving preventive detention. The official record is silent as to who was handling it between the said two dates. We cannot accept the argument of Mr. Bagai that this period of two and half months was utilized for preparing the draft grounds. We consequently bold that the delay in this case remains unexplained.

(11) A person indulging in smuggling activities is to be detained under the preventive detention laws so as to prevent him from carrying on such activities. In the present case, so far as the averments in the return are concerned, there is no Explanationn for the delay of about five months after the investigations were completed The detenu was permitted to be at large for all that time. In the grounds of detention, the detaining authority has not even considered this aspect. It should have applied its mind in the facts and circumstances of the case as to why there was inordinate delay in putting up the case before it.

(12) We are fortified in the view which we have taken from a judgment of a Division Bench, to which one of us (Charanjit Talwar J.) was a party, in Ramash Lal. v. The Administrator and another (Criminal Writ No. 43 of 1984) decided on 16th May, 1984. The authorities cited by Mr. Bagai have no hearing to the point which has been discussed above.

(13) We thereforee, quash the impugned order of detention and made the rule absolute. We direct that the petitioner be set at liberty forth with unless required to be detained under any other valid order of an authority or court.


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