D.N.Anand vs Union of India, Ministry of Finance

G.S. Chahal, J.

Darshan Lal Anand (hereinafter called the petitioner) has come to this Court through his brother Shri P.N. Anand in this petition under Article 226 of the Constitution of India for issuance of Writ of Habeas Corpus by quashing the detention order and grounds of detention Annexures P1 and P2 dated 17.9.1992 respectively.

The grounds of detention as may be gathered from Annexure P2 may be briefly summarised.

On March 15, 1992, the Customs Officers Working on an information searched the godown located at the ground floor of building No. 12/21 Shakti Nagar, Delhi, and recovered 252 VCPs and ball bearings of foreign origin collectively valued at Rs. 51, 78, 250/. They were seized, on a reasonable relief that the same had been smuggled into India and are liable to confiscation. One back seat of the Maruti Van and bill book of M/s Anand Industries lying in the said premises were also taken into possession as relevant to the inquiry. Sh. A. Sebastian @ A Sharma made a statement to the effect that about 3 years earlier, he had come into contact with one Sh. Tarlok Nath of Delhi in Burma Bazar, Madras. A. Sebastian had assisted Tarlok Nath very often in purchase of smuggled electronic items like VCPs and VCRs, but since his business was not profitable, he got lured by the offer of Tarlok Nath of 3% commission in the job of assisting him in the disposal of smuggled ball bearings in Delhi. After return to Delhi, he engaged himself in the disposal of smuggled ball bearings in the Kashmiri Gate Market. Subsequently, Tarlok Nath got A. Sebastian introduced to Roop Kumar and Darshan Lal Anand @Baby (the petitioner) as other partners in the smuggling activities. That the petitioner was aware of the utilisation of the godown for keeping smuggled items though it were only Tarlok Nath and Roop Kumar who used to store the articles and remove it from the godown. That A. Sebastian used to transport the goods to a predecided place in the market and to sell them out to the customers. The sale proceeds were being handed over, by him to Tarlok Nath or to Roop Kumar and at sometimes to the petitioner. That against five slips all dated December 22, 1991 of the Punjab National Bank drafts of Rs. 49,000/ each were purchased in the names of the alias of A. Sebastian, Roop Kumar, Tarlok Nath and the petitioner and the 5th slip in the name of Lakhpat Singh, an accountant of Tarlok Nath and Roop Kumar. A week prior to the seizure, A. Sebastian was asked by Tarlok Nath and Roop Kumar to find out the customers interested in bulk purchase in quick succession since they were in receipt of huge consignment of smuggled ball bearings, packed in 100 to 125 wooden cases. From a diary recovered from A. Sebastian, the names of persons who attended the marriage party and made gifts were described and on another page under the heading of Partners, he had, recorded the names of Tarlok Nath, Roop Kumar and the petitioner as partners. Sh. Bakul Vyas, a tenant on the first floor of building No. 12/21 Shakti Nagar, Delhi, made a statement that he had been paying the rent of that building at petitioner''s office since 1982. The petitioner admitted that he had purchased the building 12/21, Shakti Nagar, Delhi from M/S Devraj and Company for Rs. 7.5 lacs. The petitioner had, however, been unable to produce any rentnote executed between himself and Tarlok Nath and between Tarlok Nath and A. Sebastian and from other circumstantial evidence gathered, it had been established that the petitioner was one of the beneficiaries of the sale proceeds of the smuggled ball bearings. Criminal proceedings against A. Sebastian had been launched. That although, proceedings under the Customs Act were likely to be initiated against the petitioner, the Detaining Authority was satisfied that unless prevented, the petitioner will continue indulging in prejudicial activities in future.

The petitioner has pleaded interalia that he is a resident of H.No. 66, Mall Rood, Ambala Cantt and running his business of country liquor. He has purchased building 12/21, Shakti Nagar, Delhi, and rented out the same to A. Sebastian @ A. Sharma. That on the basis or a search and recovery from A. Sebastian, the house of the petitioner was also searched, but nothing incriminating was recovered. That A. Sebastian when produced before the Magistrate, had moved an application that his statement stated to have been recorded earlier was under duress and in fact he had signed blank paper due to mental and physical torture by the Customs Officers. That apprehending his arrest, he moved this Court from where direction for his anticipatory bail was given and under the direction of the Court, he appeared before the investigating authorities on April 22, 1992, 27 April, 1992 and May 18, 1992. This interim bail was confirmed vide order Annexure P3 dated May 4, 1992. That apprehending his detention, he had filed Cr. W. 310/92 which was dismissed by this Court as premature on August 12, 1992. It was after the dismissal of this writ petition that showcause notice was served on the petitioner and thereafter the impugned order of detention was passed. That the petitioner had no connection with the premises from where recovery was effected. The entire evidence collected relates to the activities of Tarlok Nath and Roop Kumar. That the alleged activity was of March 15, 1992 and the detention order was passed on July 17, 1992. There was no explanation for this delay and the order passed is punitive and not preventive in nature because of the filing of Cr. W. 310/92 filed by the petitioner. That though in the said petition, there was a direction staying his arrest, there was no order of staying the passing of the detention order. That the petitioner had moved the Detaining Authority to give clarification and details sought in Annexure P4 as the same was required by him to make a proper and effective representation, but no reply had been received till date, and the same has deprived him of the right to make an effective representation against his detention. The Advisory Board was to hold its sitting on November 20, 1992 and in the absence of reply to Annexure P4, the petitioner could not make any effective representation. That there is no allegation of any prejudicial activity indulged into by the petitioner from March 15, 1992 till the execution of the order of detention on October 13, 1992. There is also delay in the execution of the detention order. The documents supplied to the detenu were not legible and though the documents annexed with the grounds of detention were stated to be 123, a total of 425 pages were stated to have been placed before the Detaining Authority on September 17, 1992. The detention order was passed on the same day. It is humanly impossible that the Detaining Authorities could have gone through the entire record before passing the detention order. That no order of detention regarding Rupesh Kumar against whom similar allegations have been made, has been passed till date.

The respondents filed their reply to the original petition, but with respect to additional grounds, no reply has been filed although time was granted for the same. It is claimed that it had not been confirmed that the petitioner was a resident of Ambala. That the petitioner''s wife had made an application dated October 16, 1992 for grant of parole to the petitioner and had given her address as 714, Roop Nagar, New Delhi. The facts stated in the grounds of detention were reiterated, in the reply, It was further stated that the petitioner had been falsely implicated by A. Sebastian in his statement.

Learned counsel for the petitioner has pressed two grounds to challenge the order of detention. Firstly that the detention order was passed with delay and secondly that on moving of Annexure P4, no reply was sent by the Detaining Authorities which interfered with the right of the petitioner to make a proper representation.

I find force in the contention of the Id. counsel that there being no prejudicial activity of the petitioner after March 15, 1992, the delay of six months in passing the detention order will cast a grave doubt on the genuineness of the subjective satisfaction of the Detaining Authority and the delay will snap the nexus between the prejudicial activity and the order of detention and the detention order in the present case is more in the form of punitive than being preventive.

The ld. counsel for Union of India has tried to justify the delay on the basis that after a writ petition was filed by the petitioner, there was an embargo on the rights of the Detaining Authority to pass the detention order.

I find no force in this contention. No such direction was ever given by this Court. Mere passing an order of stay of arrest of the petitioner was not an order staying the process of passing of detention order, if the Authority so deemed proper.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264 the order of detention was held to be invalid where it had been passed after a lapse of about 8 months from the dates of incidents. The relevant portion of that judgment reads :

"........Indeed mere delay in passing a detention order is not conclusive but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place in our opinion the order of detention is invalid."

In T.A. Abdul Rehman v. State of Kerala, 1989(2) Recent Criminal Reports 459 (SC) : 1989(2) All India Criminal Law Reporter 294 (SC) their Lordships of the Supreme Court held as under :

"......When there is time lag of 11 months between the prejudicial activities and the order of detention, the test as to whether the detention should be quashed, on the ground of delay is not a rigid or mechanical test by merely counting the number of months, the court should examine whether the Detaining Authority has satisfactorily explained the delay."

Considering the unexplained delay in passing the order of detention, a serious doubt arises with respect to the subjective satisfaction of the Detaining Authority.

According to Annexure P4, the petitioner had inter alia sought the following information :

(i) Inform country of origin of goods at Sr. Nos. 1 & 3 of Annexure to the Panchanama, valuing Rs. 48,51,104/ out of Rs. 53,78,250/ (.) From the Markings, these seem to be of Indian origin being exported to Napal and the U.K. Please inform the meaning of marking on them ( )"

The claim of the petitioner that no reply has been sent till date has not been controverted.. The petitioner had the right to show to the Advisory Board that the articles which Are stated to be the subject of smuggling are in fact products of India meant for export to other countries. Since the recovery was not effected from the possession of the petitioner, he had to rely upon the information that may be supplied by the officers who were in possession of the recovered articles. No reply to this communication tentamounts to the refusal to give information about the articles recovered which was the subject matter for consideration by the Detaining Authority in ordering the detention. This has certainly interfered with the right of the petitioner to make an effective representation to the Advisory Board and to show that he did not indulge in any smuggling activity.

Some effort was made by the learned counsel for the Union of India that the petitioner was a resident of Delhi and not of Ambala as claimed by him and as such no cause of action arose to him within the jurisdiction of this Court. A reference to the pleadings in paras 7 of the return will show that summons were sent to the petitioner at his Ambala address which were stated to have been received back with the postal remarks that the addressee was not available at his shop inspite of repeated visits. Even in the detention order Annexure P1, the petitioner has been described with his two addresses one is 7/4, Roop Nagar, Delhi, and the second is 66, Mall Road, Ambala Cantt. The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court. This contention of the learned counsel is refuted.

In view of the findings recorded above about the delay in passing of the detention order, 1, hereby, allow the petition and hold the detention order to be bad in law and quash the same. The petitioner shall be set at liberty forthwith.