1987 (8) TMI 100 - HC - Customs

Summary

Issues Involved:
1. Validity of the detention order based on non-existent, erroneous, and misconceived facts.
2. Consideration of relevant and favorable material by the detaining authority.
3. Double detention while the petitioner was already in judicial custody.
4. Delay in passing the detention order.

Detailed Analysis:

1. Validity of the Detention Order Based on Non-Existent, Erroneous, and Misconceived Facts:
The petitioner challenged the detention order on the grounds that it was based on non-existent and factually erroneous assertions. The court found that the grounds of detention did not flow from the material relied upon by the detaining authority. For instance, the assertion that the petitioner desired to go back to Bangkok out of fright was not supported by the statements of the witnesses. Similarly, the claim that the petitioner attempted to avoid customs check was not corroborated by the statements of Mrs. Tanima Datta and Miss Denaz Bhesania. The court concluded that the detaining authority had arrived at a subjective satisfaction based on non-existent and misconceived evidence, indicating a total non-application of mind. This rendered the detention order invalid, as even if one of the grounds is non-existent or irrelevant, the entire order falls.

2. Consideration of Relevant and Favorable Material by the Detaining Authority:
The court noted that the detaining authority had ignored relevant and favorable material that indicated the petitioner did not intend to smuggle gold into India but rather to take it to Zurich. Passages from the petitioner's statement, such as his removal of black carbon papers to avoid detection and his attempt to inform the authorities about the smuggling by two Nepalese nationals, were not considered. The court held that the subjective satisfaction of the detaining authority was vitiated due to the non-consideration of these exonerating circumstances, rendering the detention order bad ab initio.

3. Double Detention While the Petitioner Was Already in Judicial Custody:
The petitioner argued that the detention order was a case of double detention since he was already in judicial custody and unable to furnish the bail sureties. The court emphasized that preventive detention should be exercised with great circumspection and only when there is an imminent possibility of the person being released. In this case, the petitioner, a foreign national, was unable to meet the bail conditions and remained in custody. The court found no compelling necessity for the detention order, as the petitioner was already effectively prevented from smuggling. Citing the Supreme Court's ruling in Binod Singh v. District Magistrate, Dhanbad, the court held that the detention order was liable to be quashed due to the lack of compelling necessity.

4. Delay in Passing the Detention Order:
The court addressed the delay of nearly three months in passing the detention order. The respondents' explanation for the delay, which included ongoing investigations and the need for clarifications, was found unsatisfactory. The court noted that most documents were available on the day of the petitioner's arrest, and the subsequent steps taken appeared to be attempts to justify the delay. The court held that the delay was fatal to the validity of the detention order, as there was no proximity between the prejudicial activity and the detention order. The lack of a satisfactory explanation for the delay rendered the order invalid.

Conclusion:
The court accepted the petition and quashed the detention order, directing the petitioner to be set at liberty unless required to be detained under any other order of a competent court or authority. The judgment highlighted the importance of accurate and relevant grounds for detention, the consideration of favorable material, the avoidance of double detention, and the need for prompt action in issuing detention orders.