9911796707
TMI Blog2014 (3) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... on stage. Even otherwise, the main ground of non-placement, non- consideration and non-advertence to vital documents was not decided earlier on merits in the absence of requisite grounds and documents relied upon. This Court cannot permit the Authorities to take shelter under such technical pleas in the matter of a writ petition in a preventive detention matter. Territorial jurisdiction - Held that: - the petitioners have also a residence in Karnal in the State of Haryana. Their father resides in Karnal. Their birth place, as evident from their passports, is also Karnal. It is not denied that the attempt to serve the detention order was made at Karnal. The Detaining Authority deputed its representative for the purpose of service of detention order and grounds upon the petitioners in the jurisdiction of this Court and thereupon, the detention orders and grounds were served upon them in the jurisdiction of this Court, albeit after the orders of this Court. The petitioners were thus detained in the jurisdiction of this Court. Therefore, I hold that merely because the respondents have doubts on the bona-fides of the petitioners in invoking jurisdiction of this Cout, it cannot be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The facts leading to the filing of the instant petition are that upon receipt of an information by the Directorate of Enforcement, New Delhi, an organized Syndicate headed by Naresh Kumar Jain was continuously and actively involved in illegal foreign trade transactions in lieu of payment and receipt of Indian Currency unauthorizedly through wide Hawala network, searches were conducted under the provisions of Section 37 of FEMA 1999 read with Section 132 of the Income Tax Act,1961 at various places and as a result thereof, Indian currency, foreign currency and certain documents and articles were recovered and seized in the months of September and November, 2009. It was alleged that said Naresh Kumar Jain was a person who stayed in Dubai from 1995 till May, 2009. He came to India from Dubai without any valid documents. In Dubai, he was engaged in the arrangement and transfer of foreign exchange to various exporters/persons and vice-versa from Dubai and other countries. At the same time, he also controlled financial transactions, Hawala receipts/payments in India through a number of companies and his relatives based in Dubai and other countries. In these transactions, the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was allowed by this Court on 25.2.2014. Further, in this writ petition, reliance has been placed by the petitioners on the earlier order of detention passed against the petitioner's brother Naresh Kumar Jain (co-detenu in the instant case as well) on 6.9.1995 by the then Detaining Authority-respondent No.1 under Section 3(1) of the COFEPOSA Act. In the order dated 20.2.2003 passed by this Court disposing of a writ petition filed by the petitioner's father Abhey Ram Jain challenging the said order of detention dated 6.9.1995, this Court had observed that in view of lapse of time, the Government might pass a fresh order, if required. Thereafter, vide order dated 13.7.2007 (Annexure P-2) passed by the Hon'ble Supreme Court, the Special Leave Petition filed by the Detaining Authority assailing the said order of this Court was dismissed. The writ petition bearing CRWP 143 of 2003 whereby the said order of detention dated 6.9.1995 was assailed before this Court and the copy of the Special Leave Petition (Criminal) 3986 of 2003 whereby the Detaining Authority had challenged the order dated 20.2.2003 passed by this Court before the Hon'ble Supreme court have also been bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after the other before he Hon'ble Supreme Court as well as before this Court. It is also submitted that entertaining the instant writ petition would defeat the very intent behind passing of the impugned detention orders. It is also further submitted that having failed to secure any relief either before the Hon'ble Supreme Court or before this Court earlier, the filing of the present writ petition is misconceived and deserves dismissal. 6. I found strong merit in the objections regarding issue of maintainability of challenge at pre-execution stage in the light of the Full Bench judgment of this Court cited by the respondents to buttress their objection to the maintainability of the challenge at pre-execution stage after dismissal of the petitions under Articles 226 and 32 of the Constitution of India earlier. Since the Hon'ble Suprme Court as well as this Court had earlier refused to exercise jurisdiction to quash the impugned orders at pre-execution stage, this Court was also not inclined to entertain the challenge to the detention orders at pre-execution stage. The prayer for considering the validity of the impugned detention orders at pre-execution stage, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cilities like having his own food ..... ... .... Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention. 10. There is no dispute to the fact that the close relative of the petitioners are residing in Karnal. There is no dispute to the fact that the petitioners have residence in Delhi as well as in Haryana as disclosed in the petition itself. No prejudice would be caused to preventive purpose of detention orders, even if the place of detention is Karnal. On 28.2.2014, the following order was passed :- (a) Issue notice returnable by 06.03.2014. Dasti service is permitted. (b) The petitioners are directed to surrender before the Senior Superintendent of Police/Superintendent of Police, Karnal, on 04.03.2014 at 11 AM. (c) The Senior Superintendent of Police/Superintendent of Police, Karnal, shall in co-ordination with the detaining authority ensure that on or before 04.03.2014 the order of detention, grounds of detention and other documents relied upon by the detaining authority are made available to be served on 04.03.2014 upon both the detenues on their surrender; (d) The Senior Superintendent of Police/Superintendent of Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners as vital and not placed, I find that the following documents were not at all adverted to in the grounds of detention: (i) Various complaints made in October, 2009 by the petitioners against the Sponsoring Authority, namely, Enforcement Directorate including those made before - a) Station House Officer, Police Station Ashok Vihar, New Delhi, dated 5.10.2009 alleging highhanded manhandling of the petitioner Satpal Jain by the officer of the Sponsoring Authority; (b) Letter to the Human Rights Commission dated 9.10.2009 levelling further allegations against the officer of the Sponsoring Authority including threat of detaining him under the COFEPOSA; ( c) Ministry of Finance through its Secretary etc. dated 21.10.2009 which levels further allegations against the officer of the Sponsoring Authority including illegal financial demands; (d) The Court of Additional Chief Metropolitan Magistrate, Rohini District Courts, Delhi, being a private complaint dated 9.11.2009 under Section 200 of the Code of Criminal Procedure seeking initiation of criminal prosecution against the officer of the Enforcement Directorate, Satbir Rathi. (ii) FIR bearing No. 443 dated 25.9.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention in the grounds of detention or in the list of documents which admittedly mentions the entire documents referred and relied upon by the Detaining Authority, I found no hesitation to hold prima-facie that the said vital documents were not placed before the Detaining Authority for consideration before arriving at subjective satisfaction. In view of the prima-facie ground urged by he learned senior counsel appearing for the petitioners, pending final hearing of the matter, the prayer for grant of bail till the next date of hearing was allowed vide order dated 6.3.2014. Bail was granted subject to the conditions that both the petitioners shall execute separate personal bonds for a sum of ₹ 50,000/- each before the Jail Superintendent who shall bind the respective petitioners to report daily between 10 AM to 10.30 AM in the office of the Superinendent of Police, Karnal till 18.3.2014 and both the petitioners shall remain present without fail in the court by the net date of hearing on 19.3.2014 at 10 AM. Accordingly, the matter was posted for final hearing to 19.3.2014. 18. On 19.3.2014, petitioners appeared. Learned counsel for the Detaining Authority again sought time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) would not entitle the detenus to choose their place of detention. Petitioners were ordinarily residing and working for gain in Delhi. It was submitted that if the petition is dismissed, petitioners may be directed to be detained at Delhi. In respect of interim order dated 6.3.2014, it was urged that the respondents failed to place before the Court the provisions of Section 12(6) of the COFEPOSA Act, 1974. The intent behind the observations concerning the grant of bail in Alka Subhash Gadia's case(supra) was not satisfied in the instant case. In Tahira Begum's case(supra), bail was granted in preventive detention matter as reply was not filed in one week's time so granted by the Hon'ble Supreme Court. However, in the present case, petitioners were not under detention for a long time. There is a provision for approaching the Advisory Board. Various complaints etc. made by the petitioners and the complaint made by the officers of the Sponsoring Authority do not have any bearing on the formation of subjective satisfaction. The grounds show necessity to detain the detenus. An alternative remedy of Advisory Board was not yet exhausted. The writ petition is filed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Court to consider the challenge to the impugned detention orders. (iii) Whether there is merit in respondent's contention that the petition was not required to be considered even after the detention of the petitioners, in view of the available alternative remedy before the Advisory Board. (iv) Whether the respondents are right in claiming that the documents not placed were such irrelevant documents which had no bearing on the issue of preventive detention and non-placement and non-consideration thereof was inconsequential. (v) Whether the impugned detention orders are sustainble in the eyes of law. 23. The findings in the earlier rejection by this Court were in the context of examining the challenge to the detention orders at pre-execution stage. Even in the instant petition, challenge to the impugned detention orders was not considered at pre-execution stage and the petitioners were compelled to surrender to the detention orders. Since the detention orders stand executed as of now, there cannot, therefore, exist any bar in considering the merits of the grounds of challenge urged by the petitioners. The final consideration of the grounds urged is only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts would constitute part of cause of action that has arisen in the territorial jurisdiction of this Court. In Umed Mal v. Union of India 1998 Crl. L.J. 3465 (Rajasthan High Court-Full Bench), it was held: 21. Applying the above tests, we cannot escape the conclusion that the factual detention of a person at a particular place would supply cause of action for challenging the detention order. .... ..... If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have to reject the narrow construction put on the concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Art.226(2) of the Constitution. 23. We are of the opinion that service of the detention order and taking of the detenue in custody in execution of such an order within the territories of the State of Rajasth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has got jurisdiction and hence the Original Petition is maintainable in this Court. In Kamala Sarkar vs. State of Bihar, 2002 CRI.L.J. 1414, it has been held by the Division Bench of Calcutta High Court that: 22. In P.Subramani v. State of Karnataka reported in 1990 Cri.L.J. 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (AIR 1985 SC 1289) (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petitioner is concerned and, therefore, a considerably part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction upon this Court. 23. Yet again in Smt. Manjulaben vs. C.T.A. Pillay reported in 1976 Cri.L.J. 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition. In the case of Tejinder Singh Makkar, v. State off Punjab and others, Crl. Writ Petition No. 912 of 2007, this Court relying upon Section 4 of the COFEPOSA Act, 1974, judgment in D.N. Anand's case(supra) , Trilok Nath Mittal, 1994(1) RCR (Crl) 247 and Mrs. Arvind Shergill v. Union of India, 1999(4) RCR(Crl.) 781, observed as follows:- Moreover, if the contention of the learned ocunsel for repsondent nois. 2 and 3 is accepted, then it implies that a person, whose life and liberty is threatened by passing an order elsewhere in the country, will have to forego his liberty and right to approach the Court for a threatened violation except at the Court which has jurisdiction over the authority passing such an order. I am afraid, this interpretation can never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d refrained the Detaining Authority to take any coercive steps against the appellant for a period of 10 days thereafter so as to enable the appellant to take recourse to appropriate remedies. Special Leave Petition (Criminal) No. 5157/5158 of 2008 filed thereagainst by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008. In the instant case, the detention orders were directed to be executed and the petitioners were taken into custody. Only after ensuring that the petitioners have surrendered and the orders of detention were served upon them, the petition was taken up for consideration on merits. 27. Moreover, when this Court declined to set aside the orders of detention before its execution and directed the petitioners to surrender, they could have preferred a fresh petition or could have sought consideration of the instant petition but after their surrender. Since the petitioners chose the later course, this Court was obliged to consider merits of the petition as post- detention petition albeit after their surrender. It is settled law that if any petition has not matured initially, the Court can await its maturity for its consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detention order, that too when the detention order has been executed. 28. The third issue is already settled by the judgments of the Hon'ble Supreme Court. I do not find any merit in the respondents' contention that the writ petition was not required to be considered even after the detention of the petitioners in view of the alternative remedy available before the Advisory Board. In Prabhu Dyal Deorah v. The Distict Magistrate, Kamrup, (1974)1 SCC 103, while rejecting similar contentions, the Hon'ble Supreme Court was pleased to observe as follows:- 16. .... .... We do not think that because the representations of the petitioners are pending consideration before the Advisory Board and the Advisory Board would also go into the question of the vagueness of the grounds communicated to them, this Court should not exercise its jurisdiction under Article 32. In other words, we cannot agree with the proposition that because the Advisory Board was seized of the matter when the writ petitions were filed and would also consider the contention of the petitioners in their representations that the grounds were vague, we should not interfere with the orders of detention on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tried to threaten him with dire consequences. My attention was drawn to letters dated 10.11.2009 and 21.10.2009 of Bimal Jain addressed to the Assistant Director wherein while seeking permission to bring an Advocate during investigation. , he has referred to one FIR and has alleged that the contents of the FIR were false. My attention also was drawn to letter dated 25.9.2009 of Satpal Jain to the Assistant Director. It is seen that the said FIR dated 25.9.2009 filed by Shri Satbir Singh, Assistant Director/Sponsoring Authority, alleges that Bimal Jain and his associates tried to manhandle this officer of the Enforcement. However, this letter which is also dated 25.9.2009 alleges that Satpal Jain was beaten up by Shri Satbir Singh and even police was called by Satpal Jain and a criminal complaint was lodged. The contents of the FIR are thus at complete variance with the contents of the letter dated 25.9.2009 of Satpal Jain. Moreover, I find that this FIR registered under Sections 186/353/34 of the Indian Penal Code finds a reference in the grounds of detention in para 31, however, the name of the complainant is shown as Satpal Rathi instead of Satbir Singh. This FIR and the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the agency officials against him. 11.That since then, the applicant had been meeting various police officials in the said Police Station, Pitampura, Delhi, but nothing was done in the matter and the police officials had blatantly refused even to investigate the matter muchless take any action against Shri Satbir Rathi on the mundane plea that he is a Government officer. 13. That since the prosecution of the said officials, namely, Shri Satbir Rathi, working as Asstt. Director in the Enforcement Directorate, Delhi Zonal Office falling under your control cannot be effected without first obtaining the permission required under Section 197 Cr.PO.C. Hence this request for according such permission to the applicant within the stipulated period of time provided under the law. 34. Further, Annexure P-11 is a criminal complaint dated 11.9.2009 filed in the court of Additional Chief Metropolitan Magistrate, Rohini District Courts, New Delhi, by the petitioner Satpal Jain against Shri Satbir Rathi, officer of the Sponsoring Authority wherein the following prayer was made: It is, therefore, requested that an immediate investigation be kindly ordered in the matter to bring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Detaining Authority but vital and relevant documents which have a bearing on the subjective satisfaction ought to have been placed before the Detaining Authority by the Sponsoring Authority. These documents of the petitioners as well as of the Sponsoring Authority go to the root of the matter. Whether upon consideration of these documents, if placed, the Detaining Authority could have suspected the proposal for invoking draconian measures of preventive detention as a tool to settle aggravated personal vengeance and as punitive measures with least resistance or would have still issued the detention order, is not for me to judge. As already observed earlier, what would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. It is beyond doubt that the above vital documents were having a direct bearing on the subjective satisfaction of the Detaining Authority. Those vital documents were undisputedly not placed before the Detaining Authority for her consideration. I have no option but to hold that non-placement of the said vital documents before the Detaining Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity is not required to collect all materials about any court proceedings etc. from different ministries or departments for the purpose of issuance of a detention order. The Court observed that non- consideration of a relevant material will certainly invalidate the detention order. We respectfully agree with the above view, and reiterate it. 36. In A. Sowkati Ali v. Union of India, this Court observed that if the detaining authority has relied on a confessional statement then the retraction of that confession should also have been placed before the detaining authority and should have been considered by it, and failure to do so would invalidate the detention order. (d) In Rajinder Arora v. Union of India, 2006(2) RCR (Crl.) 752(SC), the Hon'ble Supreme Court was pleased to hold as follows:- 22. Admittedly, furthermore, the status report called for from the Customs Department has not been taken into consideration by the competent authorities. 23. A Division Bench of this Court in K.S.Nagamuthu v. State of Tamil Nadu and others, 2006(1) Apex Criminal 73: 2006(1) RCR (Criminal) 380: 2005(9) SCALE 534, struck down an order of detention on the ground that the relevant m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mind by the detaining authority to relevant material. Unfortunately, the High Court viewed it as a question of jurisdiction that is to say, the High Court thought that the detaining authority had jurisdiction to make the order of detention despite the retraction by the accused of his earlier confessional statement and the pendency of the criminal case against the appelllant in which bail had been granted subject to conditions. No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released. 41. I was also not impressed by the argument that all these documents were not addressed to the Sponsoring Authority and thus, not required to be placed before the Detaining Authority. In Smt. Elsy George v. Union of India and others, 2002 Cril.J.540, a Division Bench of the Bombay High Court quashed and set aside the detention order issued under the COFEPOSA Act fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for ensuring that the materials forwarded to the Detaining Authority must be complied with in all respects. The judgment in Smt. Elsy George's case(supra) was extensively relied upon in these instructions which have stipulated that while sponsoring proposals for preventive detention materials/documents forwarded to the Detaining Authority must be complete in all respects and in particular, attention should be paid to all vital documents which must be placed for consideration before the Detaining Authority. All the Sponsoring Authorities were further cautioned that failure to do so may result in serious lapse which may prove fatal to the detention order. 42. If despite the above settled position of law and the instructions, the Sponsoring Authority shows laxity in placing vital documents for consideration of the Detaining Authority, irrespective of whether such non- placement is inadvertent or otherwise, this Court would be bound to set the detenu at liberty by setting aside the detention order. It is settled law that in preventive detention matters, the lapses of the Authorities cannot be condoned. 43. I also find another fatal infirmity in the detention orders. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention. 45. While setting aside the impugned orders of detention, I find it necessary to quote the following extract from the judgment of the Constitution Bench of the Hon'ble Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India and others, JT 1995(3) SC 639: 49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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