CHARAN SINGH v. UNION OF INDIA — 1993 DIGILAW 66 (DEL)

SAT PAL, J. ( 1 ). In this case the joint Secretary to the Government of India, Ministry of Finance, Department of Revenue vide his order dated 12th February, 1992 in exercise of powers conferred by section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short called cofeposa ) directed that the petitioner Shri Charan Singh @ Veerji be detained and kept in custody in the Central Jail, New Delhi. ( 2 ). Without waiting for the order and grounds of detention being served upon him, the petitioner tiled the present writ petition challanging the order of detention. Alongwith the writ petition, the petitioner has enclosed a copy of the grounds of detention of the same date and a list of relied upon documents in respect of the other co-detenu, namely, Shri Hazari Lal Jain. It has been alleged in the writ petition that the grounds of detention and relied on documents in respect of the petitioner are exactly the same as those of Shri Hazari Lal Jain. ( 3 ). Briefly stated the facts of the case are that an information was received in the Zonal Office of the Enforcement Directorate, New Delhi that the petitioner, who is resident of M-241, Greater Kailash, New Delhi, had been regularly purchasing foreign exchange from one Shri Hazari Lal Jain, who was resident of 2258, Gali Anar, Kinari Bazar, Chandni Chowk, Delhi, and the purchased foreign exchange is sent abroad by the petitioner. On the basis of this information the officers of the Enforcement Directorate kept a watch outside the residence of the petitioner and on 22nd November, 1991 when a car bearing No. DHC-8306 arrived and stopped outside the said premises, the occupants of the car were searched under section 35 of the Foreign Exchange Regulation Act, 1973 (for short called fera ) and the search of Shri Hazari Lal Jain resulted in the recovery of foreign exchange i. e. US Dollars 41788, UK Pounds 9150, Canadian Dollars 3500, cash US Dollars 2350 and a slip. In his statement dated 22/23. 11. In his statement dated 22/23. 11. 1991 recorded under section 40 of FERA the said Shri Hazari Lal Jain, inter alia, stated that the foreign exchange seized was to be sold by him to Shri Charan Singh (a) Veerji, petitioner, resident of M- 241, Greater Kailash, New Delhi, whose telephone number is 6412482 and that earlier also be had sold foreign exchange to said Shri Charan Singh, who was shown to him in their office and he admitted him to be the same Shri Charan Singh REFERRED TO to in his statement. Thereafter, Sbri Hazari Lal Jain was detained under COFEPOSA vide order dated 12th February, 1992 mentioned herein above. On the basis of the statement made by Shri Hazari Lal Jain the petitioner was arrested under section 35 of FERA on 22/23. 11. 1991 but he was directed to be released on bail by the learned A. C. M. M. New Delhi on 30th November, 1991. ( 4 ). It has been stated in the petition that the petitioner was sought to be detained on the basis of the same incident and on the same grounds as pertaining to Sbri Hazari Lal Jain and for this purpose the officers visited his residential premises on 1st April, 1992 when he had gone out for his business. Accordingly, the petitioner has annexed a copy of the grounds of detention served on Shri Hazari Lal Jain and has challanged the order of detention pertaining to him. The learned counsel for the petitioner submitted that since be was challenging the order of detention without submitting to it and at the pre-execution stage, he will confine his arguments on the limited grounds mentioned in the recent judgment of the Supreme Court in The Additional Secretary to the Government of India and others vs. Smt. Alka Subash Gadia and another, JT 1991 (1) SC 549. The learned counsel for the petitioner, therefore, urged the following contentions. 1. The impugned order of detention has been based on vague, extraneous and irrelevant grounds. 2. The impugned order has been passed for a wrong purpose. 3. In any case the impugned order has lost its purpose inasmuch as the order of detention was passed on 12th February, 1992 and the petitioner has not been detained so far though a period of II. months has lapsed. ( 5 ). 2. The impugned order has been passed for a wrong purpose. 3. In any case the impugned order has lost its purpose inasmuch as the order of detention was passed on 12th February, 1992 and the petitioner has not been detained so far though a period of II. months has lapsed. ( 5 ). Before dealing with the various contentions urged by the learned counsel for the petitioner, it will be relevant to state here that Rule was issued in the writ petition on 29th May, 1992 but the stay of the operation of the impugned order was not granted on that date or at an earlier date. However, during the pendency of the writ petition the petitioner filed Criminal M. 265/92 for direction to list the writ petition for regular hearing at the earliest and also to stay the execution of the detention order. This application came up for hearing on 10th August, 1992 and since none was present on behalf of the Union of India, the learned Single Judge stayed the operation of the impugned detention order on that date and a notice of this application was issued to the Union of India. This application, after notice, was heard on 19th October, 1992 after the judgment of the Supreme Court in Smt. Alka Subash Gadia s case (supra) which was brought to the notice of the learned Single Judge, the order dated 10th August, 1992 staying the operation of the impugned order of detention was vacated. ( 6 ). In support of his first contention the learned counsel REFERRED TO to paras 5 and 9 of the writ petition and submitted that the impugned order was liable to be quashed inasmuch as irrelevant material and documents which do not reflect any prejudicial activity on the part of the petitioner have been relied upon. He further submitted that the list of relied on documents indicates that documents at pages 9 to 12, 13 to 19, 30 to 34, 88 to 122, 131 to 149-154, 192 and 193 are such documents which do not show any link of the petitioner with the alleged prejudicial activity and as such there is non-application of mind onthe part of the detaining authority. He further submitted that in terms of the law laid down by the Supreme Court the material relied upon is part of the grounds and since the documents mentioned herein above which have been relied upon are extraneous and irrelevant, the case of the petitioner is covered by one of the exceptions mentioned in the case of Smt. Alka Subash Gadia (supra ). In support of this contention reliance, has also been placed on Smt. Shalini Soni and others vs. Union of India and others, 1981 SCC (Cri.) 38, Khudiram Das vs. The State of West Bengal and others, 1975 SCC (Cri.) 435, Jagdish Mitr vs Union of India and others, 1990 Criminal. LJ. 269 and Diwan Singh Verma vs Union of India and others, 1988 (2) Delhi Lawyer 197. ( 7 ). In support of his second contention the learned counsel for- the petitioner submitted that the impugned order has been passed for a wrong purpose inasmuch as though in the first part of the grounds of detention it has been stated that the petitioner had been regularly purchasing foreign exchange from one Shri Hazari Lal Jain but the incident mentioned in the grounds of detention is only of one date i. e. 22nd November, 1991. He further submitted that in any case the impugned order has lost its purpose now as it was passed as back as in February 1992 and the petitioner has not been detained so far. In support of this contention the learned counsel for the petitioner has placed reliance on a Division Bench judgement of Madras High Court in Md. All Jan Sahib vs. State of Tamil Nadu and others, 1 (1992) CCR 98 (DB ). ( 8 ). As regards the judgments cited by the learned counsel for the petitioner in support of first contention, it may be stated here that the Supreme Court in Smt. Alka Subash Gadia s case (supra) overruled its earlier decision in S. M. D. Kiran Pasha vs. The Government of Andhra Pradesh and others, JT 1989 (4) SC 366 and the decision of the High Courts which were contrary to or inconsistent with the view taken in the judgment, and the court said that they would be deemed to have been disapproved or overruled. Further as stated hereinbelow, this judgement was reiterated by another three Judges Bench of the Supreme Court in Shri N. K. Bapna vs Union of India, JT 1992 (4) 49 (supra ). I do not deem it necessary to refer to the ratio of the judgment relied upon by the learned counsel for the petitioner in support of this contention. ( 9 ). Mr. Madan Lokur, the learned counsel for the respondents, however, submitted that the case of the petitioner was not covered by any of the exceptions mentioned in the case of Smt. Alka Subash Gadia (supra) as the grounds of detention, copy of which has been annexed alongwith the writ petition, clearly shows that the foreign exchange seized was to be sold by Shri Hazari Lal Jain to the petitioner and at this stage the satisfaction of the Court is to be prima facie. Learned counsel for the respondents, besides relying upon the Supreme Court judgment in the case of Smt. Alka Subash Gadia also placed reliance on another judgment of the Supreme Court in Shri N. K. Bapna s case (supra) and a Division Bench judgment of this Court in Shri Joginder Sharma vs. The Administrator, Union Territory of Delhi, 1992 (3) Delhi Lawyer 198 (DB ). ( 10 ). In his rejoinder arguments, learned counsel tor the petitioner raised another contention that since no incriminatry document or foreign exchange has been recovered from the petitioner and the impugned order is based only on the statement made by the co-detenu, namely, Shri Hazari Lal Jain, the order of detention was liable to be quashed in view of a Division Bench judgment of this Court in Madan Lal Girdhan vs. Union of India and others. Criminal Writ No. 127 of 1985, decided on 5th September, 1985. ( 11 ). The law is now well settled that even in a case of preventive detention it is not necessary for the proposed detenu to wait till a detention order is served upon him before challanging the detention order Such an order can be challanged in all type of cases. This question has also been considered and answered by the Supreme Court in Smt. Alka Subash Gadia s case (supra ). In this case it was held that the courts have power to interfere even betore the detention order is served or detention is effected. This question has also been considered and answered by the Supreme Court in Smt. Alka Subash Gadia s case (supra ). In this case it was held that the courts have power to interfere even betore the detention order is served or detention is effected. The Court observed in para 30 as under:- "secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the proexecution stage are necessarily very limited in scope and number, viz. , where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and perversion of the law in question. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and perversion of the law in question. "in para 32 of the same judgment it has been further observed:- "thirdly, in the rare cases where the detenu, before being served with the detention order, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds stated above. " ( 12 ). The law laid down in Smt. Alka Subash Gadia s case (supra) has been reiterated in a subsequent judgment of the Supreme Court in Shri N. K. Bapna s case (supra ). ( 13 ). As stated earlier the learned counsel for the petitioner submitted that the case of the petitioner was covered under two exceptions, namely, that the order of detention has been passed on vague, extraneous and irrelevant grounds and secondly it has been passed tor a wrong purpose or in any case it has lost its purpose by now as the said order was passed about 11 months earlier. However, I find no merit in any of the contentions urged by the learned counsel for the petitioner as Discussed herein below. ( 14 ). At the outset I may state that in terms of the law laid down in Smt. Alka Subash Gadia s case (supra) the satisfaction of the court is to be prima facie as to whether the impugned order has been passed for a wrong purpose and has been based on vague, extraneous or irrelevant grounds or any of the other exceptions mentioned above. From the grounds of detention relied upon by the petitioner it will be relevant to reproduce para 5 (v) which reads as follows:- "that the foreign exchange seized was to be sold by you to Shri Charan Singh alias Veerji residing at M-241, Greater Kailash-II, New Delhi whose telephone number is 6412482 and that earlier also you bad sold foreign exchange to Charan Singh who was shown to you in the office and whom you admitted to be the same Charan Singh REFERRED TO to in your statement. " ( 15 ). Thus, from the above paragraph it is evident that as per the statement of Shri Hazari Lal Jain from whom the foreign exchange was recovered, the said foreign exchange was to be sold to the petitioner and ea. rlier also Shri Hazari Lal Jain used to sell the foreign exchange to the petitioner. The allegations cannot be said to be vague or extraneous or irrelevant. These allegations are also in consonance with the first paragraph of the grounds of detention that the petitioner had been regularly purchasing foreign exchange from Shri Hazari Lal Jain. From these allegations, I am, prima facie, satisfied that the detaining authority has passed the impugned detention order for proper purpose under COFEPOSA and the aid order is based on relevant grounds. Since the petitioner has challanged the order of detention at pre-execution stage, I am afraid I cannot go into the contentins of the learned counsel for the petitioner that certain documents relied upon by the detaining authority are not relevant for the detention of the petitioner. ( 16 ). I do not find any merit, in the second contention urged by the learned learned counsel for the-petitioner that the detention order has been passed for a wrong purpose or in any case it has lost its purpose after the lapse of about 11 months. As stated herein above the grounds of detention clearly indicate that the seized foreign exchange was to be sold to the petitioner and earlier also the petitioner had been purchasing foreign exchange from Shri Hazari Lal Jain. As stated herein above the grounds of detention clearly indicate that the seized foreign exchange was to be sold to the petitioner and earlier also the petitioner had been purchasing foreign exchange from Shri Hazari Lal Jain. As regards the conetention that the impugned order has lost its purpose, it will be relevant to state that in Smt. Alka Subash Gadia s case (supra) the detention order was passed on 13th December, 1985 and the judgment of the Supreme Court is dated 20th December, 1990 and inspite of the lad that the petitioner had succeeded before the High Court, the Supreme Court did not grant any relief to the petitioner in that case as the petitioner had been avoiding the service of the detention order. In the present case. also it has been mentioned in para 7 of Criminal M-435/92 which is duly supported by an affidavit on behalf of the Enforcement Directorate that the petitioner was not traceable and the officers of the Enforcement Directorate had even moved an application on 31st January, 1992 for cancellation of the bail granted to the petitioner on 30th November, 1991. It has been further staled that thereafter another application was moved on 2nd May, 1992 and the said application was listed before the learned A. C. M. M. New Delhi on 18th May, 1992 and 28th July, 1992 and on both dates the petitioner did not appear. It was only after the stay of the operation of the impugned order granted by the learned Single Judge of this Court on 10th August, 1992, the petitioner appeared on 11th August, 1992. Though the averments made in the application have been controverted by the petitioner in reply to this application hut the denial is quite vague. In view of these facts the present case is covered by the judgment of the Supreme Court in Smt. Alka Subash Gadia (supra) and the ratio of the judgment of the Madras High Court in Md. Ali Jan Sahib is not applicable. There is, thus, no merit in this contention also. ( 17 ). In view of these facts the present case is covered by the judgment of the Supreme Court in Smt. Alka Subash Gadia (supra) and the ratio of the judgment of the Madras High Court in Md. Ali Jan Sahib is not applicable. There is, thus, no merit in this contention also. ( 17 ). As regards the last contention urged by the learned counsel tor the petitioner that since the impugned order has been passed only on the basis of a statement made by the co-detenu, the order is liable to be quashed, I am of the view that this ground cannot be allowed to be raised as the petition has been filed at the pre-execution stage. Even otherwise in the case of Madan Lal Girdhar (supra) relied on by the learned counsel for the petitioner, one of the reasons for quashing the order was that there was no allegation that earlier at any lime smuggled goods were recovered from the business or residential premises of the detenu, whereas in the present case there is a clear allegation that earlier also Shri Hazari Lal Jain had been selling foreign exchange to the petitioner. ( 18 ). In view of the above discussion I do not find any merit in the writ petition and accordingly the same is dismissed, I may, however, add that the above conclusions are only prima facie, for the decision of this writ petition only.