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Om Parkash Kukreja Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Customs
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 119 of 1985
Judge
Reported in30(1986)DLT1
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 2
AppellantOm Parkash Kukreja
RespondentThe State
Advocates: Trilok Kumar and; R.M. Bagai, Advs
Cases ReferredIn Haradhan Saha v. The State of West Bengal and
Excerpt:
.....(f) - circumstances revealed if not prevented petitioner would transport, keep or conceal smuggled goods - detention for preventing petitioner in future from smuggling goods justified - issuing of show cause notice reply, thereto of petitioner and starting proceedings under customs act for serving penalty not to affect legality of detention order - held, petition liable to be dismissed. - - thereforee, the vcr as well as the watches were seized under section 110 of the customs act, 1962. his statement was also recorded on that very day under section 108 of the customs act. - (1) the central government or the state government or any officer of the central government not below the rank of a joint secretary to that government, specially empowered for the purposes of this section by..........taken out of india by concealment. (6) the petition is contested by the state. i have heard the learned counsel for the parties. (7) the first ground on which the order of detention has been assailed by the counsel for the petitioner is that the detaining authority did riot apply his mind because there was no nexus with the facts mentioned in the grounds of detention and the purpose of detention or the purpose of the act. he explained that in the order of detention two purposes of detention were mentioned, the first one being to prevent om parkash, petitioner from smuggling the goods and the second one being to prevent him from engaging in transporting, concealing and keeping smuggled goods and that there was nothing in the grounds of detention to show that om parkash wanted to.....
Judgment:

G.R. Luthra, J.

(1) The present petition under Article 226 of the Constitution of India is for quashing the detention order No. F. 5/48/84-Home (P-II) dated August 28. 1984 issued under section 3(1) read with section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') by the Administrator of the Union Territory of Delhi. The petitioner was actually detained on April 16, 1985.

(2) The grounds on which the petitioner was detained are briefly as follows. On July 25, 1983 the petitioner arrived at Delhi Airport by flight No. Tg 303 from Hong Kong and reported at red channel for customs clearance. His oral declaration with respect to the contents of his luggage was accepted and on that basis customs duty amounting to Rs. 6,120 was charged. On suspicion his baggage was diverted for detailed examination which resulted into recovery of 31 wrist watches valued at Rs. 18,600. Those watches v/ere concealed inside a VCR. The petitioner was called upon to produce any evidence showing that he had a right to important the aforesaid watches but he could not produce any. thereforee, the Vcr as well as the watches were seized under section 110 of the Customs Act, 1962. His statement was also recorded on that very day under section 108 of the Customs Act. He admitted that he had concealed the aforesaid watches in the Vcr so that he might be able to evade duty and that they were recovered. He stated that he had purchased the said watches in Hong Kong and wanted to bring to India to sell at a higher price so as to earn profit. He was arrested on that very day under section 104 of the Customs Act.

(3) Such activity of smuggling was again repeated. The petitioner went from Calcutta to Hong Kong on February 20, 1984 and returned on February 25, 1984 at Calcutta Airport. In Hong Kong he purchased two air conditioners, watches and one T.V. rack and concealed the watches in the air conditioners. He had taken by concealment Indian currency amounting to Rs. 15,000 for the said purpose.

(4) The aforesaid goods were not brought with him by the petitioner. thereforee, on February 29, 1984 he went to receive at New Delhi the aforesaid unaccompanied baggage against delivery order No. nil dated 29th February, 1984 issued by Calcutta airport. Before examination of the un compares7:19 AM 2/29/2008 baggage, the petitioner was called upon to declare the contents of the baggages. The petitioner declared that the said baggage consisted of one Sony Tv rack and one air conditioner (National). On suspicion, both the baggages were examined in the presence of two independent witnesses. The air conditioner was opened and it was found that 1090 pcs. of Disco Lcd Quartz wrist watches without straps were concealed in the condenser of the air conditioner. The petitioner was called upon to produce any authority for the import of those watches. He could not produce any. thereforee, the wrist watches were seized along with the air conditioner under section 110 of the Customs Act. Following documents were also seized :

1.B.D. No. 4595 dated 29-2-1984.

2.AWB No. 220-96250932.

3.Lufthansa Delivery order.

4.Landing certificate No. 2862 dated 25-2-1984. issued at Calcutta Airport.

5.Air conditioner operation manual.

(5) ON. 29th February, 1984, itself, a statement of the petitioner was recorded. He admitted the recovery of wrist watches which he had concealed in the air conditioner. In that state- ment, the petitioner admitted the entire circumstances as to how he had brought those watches and that he had spent a sum of Rs. 15,000 at Hong Kong which money he had taken out of India by concealment.

(6) The petition is contested by the State. I have heard the learned counsel for the parties.

(7) The first ground on which the order of detention has been assailed by the counsel for the petitioner is that the detaining authority did riot apply his mind because there was no nexus with the facts mentioned in the grounds of detention and the purpose of detention or the purpose of the Act. He explained that in the order of detention two purposes of detention were mentioned, the first one being to prevent Om Parkash, petitioner from smuggling the goods and the second one being to prevent him from engaging in transporting, concealing and keeping smuggled goods and that there was nothing in the grounds of detention to show that Om Parkash wanted to transport, conceal or keep the smuggled goods. He pointed out to that portion of provisions of Section 3(1) of Cofeposa Act which reads as under :

'3.Power to make orders detain certain persons.- (1) The Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government may, if satisfied, with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-

(I)smuggling goods, or

(II)...................

(III)engaging in transporting or concealing or keeping smuggled goods.

(IV)................................

(V)................................ It is necessary so to do, make an order directing that such person be detained.'

He urged that it was clear that turn detention for prevention from smuggling goods was separate from detention for the purpose of prevening from engaging in transporting, concealing or keeping smuggled goods and that when there were no grounds for presuming that there would be transporting or concealing or keeping the smuggled goods, directing of detention on that ground was illegal. He contended that for the application of clause (iii) of sub-section (1) of Section 3 of Cofeposa Act, transporting of goods from Hong Kong to India or concealing or keeping the same in air conditioner while they were so brought was irrelevant. He explains that when the goods were so brought, they were in the process of smuggling, that clause (iii) speaks of smuggled goods i.e. the goods which had already been Smuggled, that the act of smuggling would have been complete had the goods gone out of the Airport at New Delhi and that it was only after they had been taken out of the airport at New Delhi that they could be capable of transporting, concealing or keeping so as to attract the provisions of clause (iii) of subsection (1) of Section 3 of Cofeposa Act. The learned counsel concluded that as one of the grounds was incapable of being supported by facts, the detention on the said ground was illegal. The learned counsel in this respect relied upon a judgment of the Supreme Court in Kuso Sah v. The State of Bihar and others, In that case the following was held :

'THE statement of grounds contains the assertion that the District Magistrate was satisfied that if the petitioner was allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order and supplies and services essential to the community. The two reasons, maintenance of public order and maintenance of supplies and services essential to the community, cannot thereforee be bifurcated and considered in separate compart-ments. The subjective satisfaction of the detaining authority embraces both the reasons and since two out of the three grounds mentioned in the first part are irrelevant, the entire order is illegal.'

(8) The learned counsel urged that the said authority has application to the present case in as much as the subjective satisfaction of the detaining authority (i.e. the Administrator of Union Territory of Delhi) embraced two reasons out of which one based on clause (iii) of sub-section (1) of Sections of Cofeposa Act is irrelevant and without any basis and that hence the entire order was illegal.

(9) I agree with the learned counsel that the words 'smuggled goods' occurring in clause (iii) of sub-section (1) of Section 3 of Cofeposa Act referred to goods which have already been smuggled and not which are in the process of smuggling. I also agree with him that the act of transporting the alleged smuggled goods from Hong Kong to New Delhi is not referred to in the aforesaid clause. But I do not agree with the learned counsel when he says that there is nothing in the grounds of detention to show that the petitioner had any intention to transport or conceal or keep the alleged smuggled goods. There' can be no manner of doubt that had the alleged smuggled goods been allowed to be taken away by the petitioner, he must have transported the same in New Delhi itself and he must have either sold or kept with him. In fact, the petitioner himself stated in his statement under section 108 of Cofeposa Act recorded on 29th February 1984 that he had brought the watches for selling them off. That fact is mentioned in the grounds of detention. The act of selling could be done only after the petitioner had transported and kept the watches with him. All these circumstances clearly show if not prevented the petitioner will definitely transport, keep or conceal the smuggled goods. The object of the Act is that such type of transporting or keeping the smuggled goods should be prevented in future. Hence the mere fact that on account of seizure on February 29, 1984 the petitioner was incapable of transporting etc. the already smuggled goods does not mean that in future also he will also be incapacitated.

(10) It is, thereforee, clear that not only that the detaining authority applied his mind and formed 'subjective satisfaction' for passing the detention order as he did, but also as I am of the opinion, there was every justification for detention of the petitioner for preventing him in future from transporting, keeping or concealing the smuggled goods besides preventing him from smuggling goods.

(11) The Supreme Court authority relied upon by the counsel for the petitioner has no application. J have already held on facts in this case that the grounds of detention contained the 3052 HCD/88 -17 justification for detaining the petitioner for preventing from transporting, concealing or keeping the smuggled goods in future and that purpose of detention is not irrelevant or without any basis. In the present case both the purposes are justified and as I have already held, there was a proper 'subjective satisfaction' of the detaining authority in respect of the detention.

(12) The learned counsel for the petitioner contends that the next reason for quashing the detention order is inordinate delay at two stages, the first one being in passing the order of detention and the second one in arresting the petitioner for the purpose of detention, which clearly meant that there was hardly any need to prevent the petitioner from indulging in smuggling activities, because when remedy of prevention is to be adopted, there must be promptness in that respect. He explained that it was on February 29, 1984 that according to the allegations of the customs authorities that the petitioner was caught with the smuggled goods, but that it was after passage of more than six months on 28th August 1984 that the order of detention is purported to have been signed. He further explained that even after signing the order of detention, it was not given effect to for a period of about eight months because it was on April 16, 1985 that the petitioner was actually arrested. He referred to the Explanationn given by the respondent in para 1(C) of the additional affidavit dated August 16, 1985 of Shri C. P. Tripathi, Deputy Secretary (Home), Delhi Administration, Delhi filed by the respondent. That Explanationn reads as under :

'There is no inordinate delay in passing the detention order. It is submitted that the proposal to detain the petitioner was received in the Home Department of Delhi Administration on 7th July, 1984. On 9th July 1984, the file was put up to Home Secretary for fixing up the date and time for the meeting of the Screening Committee. On the same day after discussion with the Home Secretary, the meeting of the Screening Committee was convened for 19th July 1984 at 3.00 p.m. The meeting was adjourned to 20th July 1984. The case of the petitioner was taken up by the Screening Committee in its meeting held on 20th July, 1984. Thereafter the draft minutes of the Screening Committee were prepared and the same were vetted by Law Secretary on 29th July, 1984. Thereafter fair minutes were prepared on 31st July, 1984 and signed by all the Members on 2nd August, 1984. Since the Screening Committee after going through the relevant documents and circumstances of the case were pleased to recommend the case of the petitioner fordetention, steps were taken to prepare the draft grounds of detention and draft detention orders. The same were made ready on 9th August, 1984 and were sent to the Law Department for vetting. The same after being examined by the Law Department were vetted on 14th August 1984. The case was put up before the Deputy Secretary (Home) for further processing on 16th August; 1984. The Deputy Secretary examined the matter and ordered the same to be placed before the Home Secretary on 18th August, 1984. Thereafter, the Home Secretary after examining the same, placed the same for necessary orders of the Administrator on 22-8-1984. The Administrator who is the detaining authority, after examining the matter and due application of mind, was pleased to pass order on 25th August, 1984 whereby detention of the petitioner was ordered under Cofeposa Act, 1974. Formal orders for detention were issued by the Deputy Secretary (Home) on 28th August, 1984.'

(13) The learned counsel contended that the aforesaid Explanationn was hardly satisfactory in as much as all the time was taken by the Screening Committee who had no status in the matter of detention under Cofeposa Act. In support of his arguments, the learned counsel relied upon a judgment of Punjab & Haryana High Court in Jaswant Rai v. The State of Punjab and others, LXXX-1978 Rlr 629 The learned counsel also relied upon a judgment of the Supreme Court in Rabindra Kumar v. The State of West Bengal. : 1975CriLJ1235 in support of the proposition that delay in passing the order of detention made the detention unsustainable. That was a case under Maintenance of Internal Security Act. The following was held :

'The whole purpose and object of the Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and unexplained delay of about 3 months.'

(14) The reliance of the learned counsel was also on a judgment of the Supreme Court in Lakshman Khatik v. The State of West Bengal, 1974 Scc (Cri) 289 In that case, a delay of 7 months in passing the detention order was held to be sufficient for setting aside the said order. That was also a detention under the provisions of Maintenance of Internal Security Act, 1971. The reliance of the learned counsel for the petitioner was also on a judgment of the Division Bench of this Court in Bhupinder Singh v. Union of India etc.. Criminal Writ No. 124185 decided on August 6, 1985. (5) In that case there was delay of one year in passing the order and on that basis the detention order under Cofeposa Act was set aside.

(15) For explaining the delay in actually detaining the petitioner, the reliance of the respondent is on paragraphs 1 and 5 of the counter affidavit dated 2nd July, 1985 of Shri C. P. Tripathi, Deputy Secretary (Home) Delhi Administration, Delhi. It is stated in the said affidavit that the petitioner had absconded, that he was arrested on April 1, 1985 by the order of the Court taking cognizance of the offence of smuggling of the goods, that as soon as the authorities concerned in Delhi Administration came to know that the petitioner was lodged in jail, the detention order was served upon the petitioner and then the detention started. Learned counsel for the petitioner contended that the aforesaid Explanationn was totally unsatisfactory in the circumstances of the case. He explained that although the petitioner was released on bail on April 24, 1984. till which date he was in judicial custody under the orders of the Additional Chief Metropolitan Magistrate, he himself surrendered before the court on April 1, 1985 and was arrested on the said date and that, thereforee, he could have been arrested on April 1, 1985 itself. He showed ignorance if the petitioner absconded from April 24. 1984 to March 31, 1985 but alleged that even if the petitioner was absconding, it was incumbent upon the Delhi Administration to have taken resort to section 7 of Cofeposa Act, which provided the procedure for arrest of the absconding persons.

(16) The delay at both the stages has been fully explained by the respondent. The delay in passing the detention order was on account of thorough examination at various levels as to whether the petitioner should be detained or not. This is clear from the Explanationn given in the affidavit of Shri C. P. Tripathi, relevant portion of which has been reproduced. In Ashok Narain v. Union of India and others, : 1982CriLJ1729 , the following was held :

'Where the detenu was apprehended for breach of foreign exchange regulation in February, 1981 arid without launching any prosecution the detenu was detained in October, 1981, the passage of time being result of full and detailed consideration of facts and circumstances of the case after thorough examination at various levels it could not be said that the detention was in any way illegal when the detaining authority had fully arid satisfactorily applied his mind to the question of detention.'

In that case also there was thorough examination at various levels and there was a delay of about eight months in passing the order of detention. In that case the detenu was apprehended on February 23, 1982 and the order of detention was passed on October 14, 1982. It was held that there was no tardiness on the part of the detaining authority and that the detention was perfectly legal.

(17) The authorities relied upon by the learned counsel for the petitioner have no application. The judgment of the Punjab High Court 1978 Plr 629 cannot be followed as against the aforesaid Supreme Court judgment. The Supreme Court judgments : 1975CriLJ1235 were on different facts because in those cases the delay was not fully explained. In the present case, the judgment of the Supreme Court : 1982CriLJ1729 is fully applicable. It justifies the time taken by the Delhi Administration for examining the case by the Screening Committee etc. The judgment of this Court in Bhupinder Singh v. Union of India etc. also does not apply in as much as there was delay of one year in that case and also the Explanationn for the delay was not satisfactory.

(18) The delay at the stage of detention was on account of fault and wrongful act of the petitioner. He absconded. It was stated at the bar by the counsel for the respondent and not denied by the counsel for the petitioner, that non-bailable warrants of arrest were issued by the Addl. Chief Metropolitan Magistrate, New Delhi in the criminal case relating to smuggling of 1090 watches and it was on April 1, 1985 that the petitioner was arrested. When the aforesaid court was itself taking proceedings for getting the petitioner arrested, there was hardly any necessity of the respondent applying to the said court again for issuing non-bailable warrants and taking further proceedings under section 7 of the Cofeposa Act. In fact, the petitioner in this respect wants to take advantage of his own wrong which obviously cannot be given to him.

(19) In Bhawarlal Ganeshmalji v. The State of Tamil Nadu and another, : 1979CriLJ462 , there was delay of more than 3 years in actually detaining a person after the passing of the order of detention. The order of detention was passed on 19th December 1974 while the detenu was arrested on 1st Feb-many 1978. In the meantime the detenu was absconding. It was held that the .delay did not vitiate the detention order.

(20) The learned counsel for the petitioner attacked the detention on another ground. He urged that some vital documents and material was not put up before the detaining authority on account of which the said authority could not consider the same and, that thereforee, it could not be said that there was a proper 'subjective satisfaction' of the said authority thereby vitiating the detention. The details of those documents are given in paragraph 9 of the rejoinder affidavit dated 29th July 1985 of the petitioner. The particulars of those documents are as under :

(I)Retraction/complaint of the petitioner dated the 1st March 1984, submitted to the learned Collector of Customs, New Delhi, and the learned Addl. Chief Metropolitan Magistrate, New Delhi which clearly brings out the false involvement of the petitioner and the involuntary nature of his alleged inculpatory statement;

(II)The show cause notice issued by the Department of Customs, under section 124 of the Customs Act, 1962, to the petitioner; and

(III)The reply of petitioner to (ii) above.

(21) The learned counsel relied upon a judgment of the Supreme Court in Ashadevi v. K. Shivraj and another. Air 1979 S.C. 447 In that case. in passing a detention order, the detain authority based its decision on a confessional statement of detenu which was subsequently retracted. It was held that as the retraction of the confessional statement was not brought to the notice of the detaining authority, the detention order was vitiated. The learned counsel also relied upon a judgment on Prakash Chandra Mehta v. Commissioner and Secretary Government of Kerala and others : 1986CriLJ786 in which similar was held by the Supreme Court. The learned counsel contended that in the present case also, the factum of retraction of confession was not brought to the notice of the detaining authority. Learned counsel also relied upon adjustment of Division Bench of this Court in Kailash Chand Goyal v. State and Ors. : 25(1984)DLT241 In that case, the order of detention was passed on the basis of a statement made by the detenu about two months after the raid under section 132 of the Income-tax Act while the earlier statement made by him at the time of the raid was not placed before the detaining authority. It was held that the detention order was illegal.

(22) The argument of the learned counsel leas no force in the circumstances of the present case. It has not been alleged that the document retracting confession was ever in the office of the detaining authority. It appears from para 9 of the affidavit that the document retracting confession was sent to the Collector of Customs, New Delhi and the Addl. Chief Metropolitan Magistrate, New Delhi. The detaining authority is Lt. Governor as administrator of the Union Territory of Delhi. thereforee, the aforesaid document was never sent to the detaining authority. However, the matter of retraction of confession was duly put before the detaining authority because along with the order of detention, copies of some bail applications filed by the petitioner before the Addl. Chief Metropolitan Magistrate, New Delhi have been filed. Those bail applications' mentioned about the retraction of the confession. thereforee, that fact must have been considered by the detaining authority.

(23) The giving of show cause notice by the Customs authorities to the petitioner in starting proceedings for levy of penalty and reply of the petitioner thereto are not of any importance. That show cause notice and reply could not have any influence on the mind of the detaining authority. They merely related to the starting of action by the customs authorities and nothing further.

(24) In Haradhan Saha v. The State of West Bengal and others. : 1974CriLJ1479 it was held that the power of preventive detention was qualitatively different from punitive detention and that, thereforee, the mere fact that the detaining authority did not take into consideration the pendency of criminal proceedings of conviction or acquittal in the said proceedings did not affect the validity of the detention order. thereforee, mere issuing of show cause notice, reply thereto of the petitioner and the starting of proceedings under the Customs Act for the serving of penalty did not, in any way, affect the legality of the detention order.

(25) No other point was urged. I, thereforee, dismiss the petition.

(26) Criminal Writ No. 119 of 1985 stands disposed of. Petition Dismissed.


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