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JainudIn Kabir Bagdadi Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1985CriLJ1378
AppellantJainudIn Kabir Bagdadi
RespondentUnion of India (Uoi) and ors.
Excerpt:
- - in this case, however, we find a very interesting situation. handa has contended that the detaining authority could well have come to the conclusion on the basis of these statements that the crew of the trawlers were petitioner's men inasmuch as he was going to pay for their services, and it could be a possible way of interpreting the words 'with your men as crew members and tandel' used in ground no......reading of some of the grounds of detention served on the petitioner. indeed it is urged that the detaining authority has come to conclusions for which there was no material before it and he had based his satisfaction on ; non-existent facts.3. rule nisi was obtained by the petitioner on 30th january, 1985. by way of return, praying for the discharge of the rule, the respondents have filed two affidavits, namely, of shri b. c chougule, special secretary to the government of maharashtra, home department (law & order) and shri j. a. mokal, desk officer, home department, government of maharashtra. the union of india has filed the affidavit of shri a. k. agnihotri, under; secretary to the government of india, ministry of finance (department of revenue) by way of return to the rule nisi.4......
Judgment:

Prakash Narain, C.J.

1. The petitioner has been detained by virtue of an order dt. 16th August, 1984, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing him from abetting the smuggling of goods. In execution of this order of detention he was arrested on 18th August, 1984. Grounds of detention dt. 16th August, 1984, were duly communicated to the petitioner. On 13th September, 1984, a declaration appears to have been made under Section 9(1) of the Act as amended by Act No. 58 of 1984. The information regarding this declaration having been made in regard to the detention of the petitioner was given to the petitioner by a communication dt. 27th November, 1984, purporting to be an addenda to the grounds of detention. This addenda was drawn up on 18th October, 1984. The petitioner, as advised by the grounds of detention earlier served on him, made a representation to-the State Government on 20th September, 1984. reference to the Advisory Board was made by the State Government on 24th September, 1984. The representation which appears to have been made by the petitioner to the Central Government was rejected by it on 26th September, 1984, The representation made to the State Government was rejected by it on 19th October, 1984. The petitioner had earlier filed a petition under Article 226 of the Constitution of India in this Court which was registered as Criminal Writ Petition No. 145 of 1984. The contentions then raised did not I find favor with the Bench of this Court and the petition was dismissed in liming. Only three contentions were raised before this Court but none of them impressed the Bench which dismissed the earlier writ petition in liming on 31st October, 1984.

2. The petitioner has now filed a second petition under Article 226 of the Constitution of India for issue of a writ of habeas corpus contending that the detention order dt. 16th August, 1984, is liable to be quashed for various reasons, some of which are fresh reasons given in the present petition and had not been raised hi the earlier writ petition. Among the fresh reasons given by the petitioner in support of f his challenge to the detention are that the declaration under Section 9(1) of the Act was not served on the petitioner soon after it was made and thereby the petitioner's statutory and constitutional rights envisaged by Section 8 of the Act and Article 22(5) of the Constitution have been violated for the petitioner had a right to make a representation with regard to the declaration purporting to have been made under Section 9 of the Act and to contend that the declaration was not validly made or that circumstances did not exist warranting the making of such a declaration. Another ground of challenge raised by the petitioner which is a fresh ground of challenge is that the satisfaction postulated by Section 3(1) of the Act stands vitiated ; on account of non-application of mind which is apparent on a reading of some of the grounds of detention served on the petitioner. Indeed it is urged that the detaining authority has come to conclusions for which there was no material before it and he had based his satisfaction on ; non-existent facts.

3. Rule nisi was obtained by the petitioner on 30th January, 1985. By way of return, praying for the discharge of the rule, the respondents have filed two affidavits, namely, of Shri B. C Chougule, Special Secretary to the Government of Maharashtra, Home Department (Law & Order) and Shri J. A. Mokal, Desk Officer, Home Department, Government of Maharashtra. The Union of India has filed the affidavit of Shri A. K. Agnihotri, Under; Secretary to the Government of India, Ministry of Finance (Department of Revenue) by way of return to the rule nisi.

4. In the view that we are going to take it is not necessary to dilate upon the various contentions raised on behalf of the petitioner including the contention about the denial of opportunity to challenge the declaration under Section 9(1) of the Act. In our view, the rule is to be made absolute even for one reason only that we are presently going to set out.

5. In ground No. 10 of the grounds of detention the detaining authority has stated thus:

You had arranged two trawlers with your men as crew members and Tandel for transshipping the smuggled goods on the night of 22-5-1984 which was intercepted and seized by Customs on 22/23-5-84. You had also conspired with Shri Jafar Mujawar and Abdul Latif Ismal Solkar, the owner of fishing trawler by name Bismilla-Ki-Barkat, for landing the goods at Waghatone in Vijaydurg Creek and thereby abetted the smuggling of goods.

Two important facts are spelt out by ground No. 10. One is that the petitioner had arranged for two trawlers which were to be manned by his men as crew members and Tandel. The second is that the petitioner had conspired with Jafar Mujawar and Abdul Latif Ismal Solkar, the owner of fishing trawler by the name of Bismilla-Ki-Barkat, for landing the contraband. Regarding the first point the petitioner in ground No. DC of the petition stated that there was no material whatsoever before the detaining authority to come to the conclusion that the petitioner had arranged for the two trawlers to be manned by his men as crew members. According to the petitioner the statements of various persons recorded by the customs authorities showed the facts to the contrary. Learned Counsel for the petitioner urges that if there was no material to come to the conclusion that the two trawlers were to be manned by the petitioner's men as crew members then the satisfaction envisaged by Section 3(1) of the Act stands vitiated, the fact that men is an important element to come to a conclusion one way or another. If the detaining authority has been influenced by the fact as stated then the satisfaction is based on nonexistent fact and so would be invalid.

6. The detaining authority was Government of Maharashtra. Shri Chougule, Special Secretary to the Government of Maharashtra, who has sworn the affidavit by way of return has said nothing in his counter-affidavit in reply to the averment in ground No. IX of the writ petition. It is worth noting that it was Shri Chougule who as duly authorised officer acted on behalf of State of Maharashtra in passing the detention order. Since there is no reply to ground No, IX of the writ petition one could take the view that the averment made by the petitioner, not having been refuted, is to be accepted. In this case, however, we find a very interesting situation. Not only there is no return with regard to a specific averment as noticed earlier but indeed there is an averment which goes counter to what is said in the affronted ground of detention. In para 16 of the affidavit of Shri Chougule he specifically says that the crewmen were employees of Abdul Latif Solkar and Abbas Yusuf Mujawar and, thereforee, 'they had to act according to the say of their owner.' If what is stated in para. 16 of the affidavit of Shri Chougule is to be accepted as the thinking of the detaining authority then the thinking reflected in ground No. 10 to the effect that the crew of the trawlers were petitioner's men, is not understandable. There appears to have been some confusion somewhere which justifies the assertion on behalf of the petitioner that there has been non-application of mind or that the averments in ground No. 10 of the grounds of detention are based on no evidence.

7. Faced with this situation learned Counsel for the respondents sought a short adjournment to call for the record of the case from the detaining authority and place it before us by way of return. We acceded to the request. The record has been shown to us and indeed Mr. Handa, learned Counsel for the respondent (State Government) has made a valiant effort to explain what was meant by the detaining authority when he made the assertion in ground No. 10 of the grounds of detention that the trawlers were manned by petitioner's men. He invited our attention to statements of several persons including Ahmed Yusuf Bhaktar and Md. Karim Borkar. We have gone through the statements of these persons as shown to us by Mr. Handa. All that these persons have said is that three persons including the petitioner negotiated for trawlers to meet the launch or the vessel in order to bring the contraband to the shore and these three persons said that they will pay Rs. 800A each by way of remuneration to the Tandel and other crew members of the two trawlers. Mr. Handa has contended that the detaining authority could well have come to the conclusion on the basis of these statements that the crew of the trawlers were petitioner's men inasmuch as he was going to pay for their services, and it could be a possible way of interpreting the words 'with your men as crew members and Tandel' used in ground No. 10 of grounds of detention. We, however, are unable in the facts and circumstances of the present case to accept the ingenious interpretation of the learned Counsel for the State of Maharashtra because it runs counter to the plain meaning of the words in ground No. 10 of the grounds of detention which in turn have been negatived by what is said in para 16 of the affidavit of Shri Chougule, adverted to earlier, and the complete absence of answer to ground No. IX of the writ petition in the return filed by Shri Chougule.

8. We feel rather unhappy that successful apprehending of persons involved in nefarious activities is made abortive by a careless application of the laws of preventive detention. In a society and country wedded to the rule of law detention without trial cannot be permitted unless it is shown that there has been a strict compliance both in letter and spirit of the provisions of law invoked and that the constitutional and statutory safeguards to the persons sought to be detained have not been denied. For not carefully applying its mind in the present case, the satisfaction envisaged by Section 3(1) of the Act must be held to be vitiated. In consequence, the impugned order of detention dt. 16th August, 1984, must be quashed. It is ordered accordingly.

9. In view of what we have stated earlier the rule is made absolute and the respondents are directed to set the petitioner at liberty forthwith unless required to be detained under any other valid order of an authority or a Court.


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