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TMI Blog1987 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... was the consigner. This machinery was meant for export to M/s. Nazi Handi Altharthi Est. Jedda (Saudi Arabia). Another consignment comprising of four packages containing one power press and two pieces of hand-operated press consigned by M/s. Modern Machinery and Instruments, Parmanand Colony, Delhi was meant for export to International Traders Ltd., London. On close examination of the said machinery items, the Customs Officers recovered 743 kg. of Hashish concealed inside the machinery. The said consignment for export ,were meant to be cleared through M]s. Lee and Muir-head (P) Ltd. India and M/s. Sheikh and Pandit, Calcutta. The machinery Along with Hashish and the truck were seized under the provisions of the Customs Act, 1968 and Narcotic Drugs and Psychotropic Act. Later on, the business and residential premises of the clearing agents were searched but nothing incriminating was recovered. (3) Shri Joginder Singh, driver of the truck in his statement disclosed that the seized truck belonged to Shri Gopal Singh, who was running the same with a Transport Company, in the name and style of Nice Goods Carriers, Azad Market, Delhi. He also disclosed that the owner of the said trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Aparna Virmani, the daughters were recorded, who disclosed that the petitioner was engaged in the running of two firms by the name of M/s. Kumi Exports and Virmani Chit Fund Trading Company. These witnesses also identified their items of household goods lying at Gadaipur Farm House. (8) Enquiries with the Revenue authorities revealed that the farm house in Gadaipur from where the Hashish was recovered stand registered in the name of Shri S. P. Rao, resident of D-13/A-19, Model Town, Delhi, which is also the residential address of Harnam Singh. A number of summons were issued to Harnam Singh, S. P. Rao @ Nirmal and the petitioner to appear before the D.R.I. Officers but the same were not honoured. (9) The petitioner was apprehended on 28/09/1986. During interrogation, he admitted his involvement in smuggling Hashish out of India in association with HarnamSingh, S. P. Rao and one Surinder Malhotra. He disclosed that Harnam Singh used to purchase Hashish from Pakistan and after concealing the same inside the engine mountings and other machinery items, it used to be exported to different countries under fictitious names. During the investigation, Shri Subhash Chander Narang wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made. The impugned order does, not reflect the compelling necessity to detain the petitioner. (12) The case of the respondent is that the detaining authority was fully aware of the fact of the petitioner in jail He, however ,on the peculiar circumstances of this case, formed an opinion to detain the petitioner. The proceedings under the Customs Act are quite separate and independent from the action under N.D.P.S. Act. There is no bar to the passing of the detention order. (13) This defense reveals the carelessness on the part of the detaining authority to handle the delicate and sensitive matter of detention where the liberty of an individual is involved. The order shows complete disregard to the well-settled propositions laid down in the various judgments of the Supreme Court. It is not disputed that immediately after his arrest on 29/09/1986, the petitioner filed an application for his release on bail before the Additional Chief Metropolitan Magistrate, New Delhi .After contest, this application was rejected on 2 9/10/1986. The order of detention dated 5/11/1986 was served while he was in judicial custody. Normally, when a preventive order is passed against a person alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her courts and remained contented to face the trial .There was absolutely no possibility of his coming out of the jail during the pendency of the trial which was likely to take sufficiently long time. The circumstances do indicate that there was no compelling necessity on the part of the detaining authority to pass the order of detention which has proved to be a case of double detention. (17) In similar circumstances, the Supreme Court in case reported as Binod Singh vs . District Magistrate, Dhanbad, Bihar and others, 1986CriLJ1959 held as under :- WHERE the order of detention under S. 3(2) of the National Security Act was served upon the detenu, when he was already in jail in respect of a murder case and there was no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order of detention, the continued detention of the detenu under the Act would not be justified. The power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and communicated to the petitioner on 6/03/1987. (20) This aspect needs deeper probe and thought. The present petition came up for hearing before the Division Bench of this Court on 21/01/1987. The respondents were served with the copy of the petition and the annexures on 5/02/1987. Even if, we take the stand of the respondent on its face value, the fact remains that for more than a month or so, the result of the representation was not communicated to the detenu. On these admitted facts, the law laid down by the Supreme Court that the representation must be considered and disposed of within a reasonable time, must prevail. In the case of Smt. lechu Devi Choraria vs . Union of India and others, [1981]1SCR640 , there was a delay of 15 days in disposing of the representation of the detenu. Even this short delay was held unreasonable and fatal. The relevant portion of the Judgment reads thus :- ON a proper interpretation of clause (5) of Article 22the detaining authority is under a constitutional obligation to consider the representation of the detenu as early as possible, and if there is unreasonable delay in considering such representation, it would have the effect of inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave acted in such a cavalier fashion in dealing with the appellants representation addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obligation under Article 22(5). The affidavit reveals that there were two representations made by the appellant one to the Chief Minister dated 22/09/1986 and the other to the Advisory Board dated 6th October, 1.986. While the Advisory Board dated October commendable dispatch in considering the same at its meeting held on 8/10/1986 and forwarded its report together with the materials on 13/10/1986, there was utter callousness on the part of the State Government to deal with the other representation addressed to the Chief Minister. It was not till 17/11/1986 that the Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Art. 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also considered. However, the same were not relied upon by the detaining authority and as such these copies were not supplied to the petitioner. (26) In the additional affidavit of the detaining authority, it is alleged that in regard to the complaint made in ground (X)that there has been suppression of material facts by the sponsoring authority from the detaining authority, I beg to state that the documents mentioned in the grounds No. (X), namely, documents except documents at Serial No. 1,2,4,6,7, and 10 of Ground X were placed before me and those documents though reported to be in favor of the accused were considered by me along with documents which were incriminating to the detenu and on overall consideration of both the sets of documents and the pros and cons, I came to the subjective satisfaction that the documents complained of in ground X were not enough to displace the effect of the other two incriminating documents on which I have relied upon and, Therefore, the documents mentioned in ground X were not relied upon by me in favor of the detenu . In support of this stand, the submission of the learned Additional Solicitor General appearing on behalf of the State is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime when the order is to be passed, it is for the detaining authority to consider as to what are the relevant circumstances and then to form his opinion thereon. But once an order of detention is challenged in a Court of law then the Court certainly has the jurisdiction to go into the question and to decide as to whether all the relevant documents/circumstances have been considered by the detaining authority or notify the argument is taken to its logical conclusion, then the detaining authority can play havoc with the liberties of the individuals and bypass the safeguards provided by Article 22 (4) and (5)of the Constitution of India. It will confer a very wide discretion on the detaining authority to ignore the material documents/evidence and rely upon and inconsequential and worthless evidence to base his subjective satisfaction and pass the order of detention .Take the case where the sponsoring authority has come into possession of numerous important and valuable documents on the basis of which a prudent person would definitely conclude that it is not a case for passing a detention order. If these documents are not placed before the detaining authority, it will be a case of with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been held to be fatal by the Supreme Court and other High Courts of India. In a case reported as Asha Devi vs. Shiv Raj and another A.I.R. 1979 SC 447 the question whether the confessional statement recorded earlier was voluntarily statement or was the statement which was obtained from the detenu under duress or whether the subsequent retraction of the said statement by the detenu was in the nature of an after thought were held primarily for the detaining authority to consider before deciding the issue of detention order but since, admittedly, the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before the considered by the detaining authority. It was held that there was non-application of mind to the most. material and vital facts vitiating the requisite satisfaction of the detaining authority and thereby rendering the detention order invalid and illegal .This very ratio was followed and affirmed in a case of this Court reported as pudukudi Abdu vs. Union of India and others 1982 D.L.T. 44 and Cr. W. No. 114/87, AshokKumar v. Administrator. Union Territory of Delhi decided by this Court on 27/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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