Sat Dev Sethi vs Union of India (UOI) and Others

J.B. Garg, J.—Sat Dev Sethi Las challenged his detention order dated 4.9.1992 Annexure P-2 issued u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the ''COFEPOSA'' Act'') by means of this Criminal Writ petition moved under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.

Briefly, the facts are that Sat Dev Sethi after landing at New Delhi, Air port, on 13.4.1992 from Dubai, was utilising a wheel chair which he had brought along with him. He was accompanied by his Minor son. He was intercepted by the Preventive Officers of the Customs Department. The wheel chair was cut open before the witnesses and 100 foreign marked gold biscuits of 10 tolas each were recovered from the two hollow cross bars of the chair of the petitioner. His body is downwards crippled and this made him eligible to utilise a wheel chair through he had been working as a Pilot in England earlier

The learned counsel for the respondents has argued that the petitioner was apprehended at New-Delhi and gold biscuits were also recovered there and not at Chandigarh and that this court had no jurisdiction to entertain the petition. In this regard attention has been invited to Gurdeep Kaur v. The Union of India 1990 (2) R C. R. 20 where recovery was made near Abmedabad and some enquiiy in that regard was made at Mohali in Punjab and this court held that the writ petition could not be entertained at Chandigarh merely because some formal enquiry was made at or near Chandigarh. It appears that this writ was admitted on 17.1 .1992 and registry was directed to fix it for actual hearing. The notice Annexure P 2 was served at the alleged address of the petitioner, of Chandigarh, by the respondents on 4.9.1992 and no preliminary objection regarding jurisdiction has been taken m the reply of the respondents dated 31.3.1993.

The learned counsel for the respondents has also referred to Manjit Singh Dhingra v. Union of India ILR 1987 P& H 61 where the order of detention was passed by the State of Maharashtra under the COFEPOSA Act and the writ moved under Articles 226 and 227 of the Constitution of India was dismissed by this Court on the preliminary plea of jurisdiction but that was at the motion stage. As seen above, the case now in hand, is on the regular list and as pointed out earlier the plea of jurisdiction was not taken in the written reply filed by the Government of India dated 31.3.1993 In these distinguishing circumstances it will not be appropriate to throw away this writ petition on the belated oral plea of territorial jurisdiction.

On behalf of the petitioner it has been argued that detention u/s 3(1) of COFEPOSA Act was illegall because he had been a British Citizen and has been born arid brought up in Kenya and U. K. and had studied in English medium. The learned counsel has also argued that the copies of the statements of Shyam Sunder''and that of Radhey Shyam on item No. 42 and 45 were riot supplied in English. This has been controverted on behalf of the'' respondents The learned counsel for the petitioner has referred to Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, . In the aforesaid case the documents and grounds of detention were not supplied to the petitioner altogether. Besides this in the aforesaid case stress was laid on the non supply of the tapes which were meterial for ascertaining the detention of the accused. The facts and circumstances of the case in hand are distinguishable inasmuch as in para 18 of Annexure P 9 the plea of the petitioner was that the statement of Jaspal Singh resident of Patiala supplied to him was incomplete in its English version. On behalf of the respondents it has been pointed out that it is a case of retracted confession. The documents were supplied and the respondents were prepared to supply even the additional documents asked for by the petitioner in his representation and it was not a case that the supply of documents was denied.

The learned counsel for the petitioner has next argued that there was undue delay in consideration of his representation. It shall be useful to refer to para 10 of the reply by the respondents dated 31.3.1993 which is in the form of an affidavit and it is reproduced as under :-

"Regarding para 8 of the petition, it is submitted that petitioner''s representation dated 11.11.1992 was received in the COFE- POSA Unit of the Ministry on 13.11.1992 and on the same date was placed before the detaining authority who directed to call for the comments of the Sponsoring authority Comments were called on 16.11.1992 (14th and 15 11 1992 were closed holidays being Saturday and Sunday) which the sponsoring authority submitted vide their letter dated 27.11.1992 received in the Ministry on 1.12.1992. The case was processed and submitted to Joint Secretary (Cofeposa) on 1.12.1992 who considered the case on 2 12.1992 and submitted to Director General (EIB) on the same date. Director General considered the case on the same date and submitted to Finance Secretary who also considered the case on the same date and submitted to Minister of State (Revenue) Minister of State considered the case on 3.12.1992 and rejected the representation on behalf of Finance Minister as the Finance Minister was on tour. The case file was received back on 8.12.1992 and a memo intimating the detenu about rejection of his representation was also issued on the same date The case file was re-submitted to Finance Minister on 8.12.1992 and the Finance Minister considered the case on 9-12-1992 and approved the decision of the State Minister. Thus there is no undue and unexplained delay on the Central Government."

A perusal of Section 3 of the Act would show that approval of a Joint Secretary in the case of Central Government was enough for invoking the required powers. The mere fact that the approval of Minister of State was obtained on 8.12.1992 and the detenu was informed about it and that the approval by the Finance Minister who was away from New Delhi was accorded on 9.12.1992 does not render the proceedings illegal.

The learned counsel for the petitioner has referred to Mrs. Tsering Dolkar Vs. Administrator, Union Territory of Delhi and Others, where the documents accompanying the grounds were furnished in Tibetan language while the detenue knew only Ladakhi language and another short coming in that case was that the material documents shown in Annexure C were not supplied to the detenue at all The facts and circumstances of the case now in hand are distinguishable inasmuch as the petitioner had relatives in Punjab, Union Territory, Chandigarh, etc. arid he knew tug-fish as well as Indian Languages.

The learned counsel for the petitioner has also referred to S. Gurdip Singh Vs. Union of India (UOI) and Others, where the copies of the documents following the material on which the order of detention was passed were not supplied and the prayer of the detenu in this regard was refused. Here there is no such omission by the Union of India

Oh the other hand, attention has been invited to Abdul Sathar Ibrahim Manik v. Union of India 1992 S.C.C 1 where 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of the suitcase, the detention order under COFEPOSA Act was appropriate.

In view of the reasons referred to above, there is no good ground for setting-aside the impugned order. However, it is observed that since the petitioner is a crippled bodied person and in view of the weak health of detenu, as contained in extract from the note of the visit of the Assistant consular of the British High Commission, New Delhi (Annexure P-14) the Onion of India may take a sympathetic view regarding further detention.