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1998 DIGILAW 1673 (MAD)

Vimal Vrajlal Pau v. Union of India

1998-12-04

A.RAMAN, T.JAYARAMA CHOUTA

body1998
Judgment A. RAMAN, J. 1. The petitioner, who is the detenu, is a British citizen and holder of British passport. He arrived in Chennai Airport on 7.6.1998 by Air India flight from Mumbai. After collecting the baggage, the petitioner proceeded through the green signal and was intercepted by the Intelligence Officer. When questioned, he replied that he had nothing to declare. The petitioner was brought to the Air-Intelligence Unit, situate in the Arrival Hall of the International Airport of Chennai and was questioned in the presence of witnesses. Then the baggage was examined by the customs authorities in the presence of witnesses, and this resulted in the recovery of 50 numbers of Cricsson, 628 GSM. Cellular Phones, 10 numbers of Nokia, 6110 Cellular Phones and one Motorola Tac, 550 MAH Cellular Phone along with 2 computerised invoices and Indian currencies amounting to Rs. 1,65,000. The zipper bag when examined was found to contain certain number of Cellular phones. The sum of Rs.1,65,000 was represented by the petitioner to be the sale proceeds of parts of the cellular phones brought by the detenu. The detenu had also given a confession statement. Thereafter, the detenu was arrested and produced for remand before the Additional Chief Metropolitan Magistrate on 7.6.1998, who remanded him to custody till 19.6.1998. By the proceedings dated 28.7.1998 an order of detention was passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 2. Questioning the said detention order, the petitioner has filed H.C.P.No.1672 of 1998. The above petition was admitted on 3.11.1998. Notice returnable in eight weeks was ordered on this petition. The petitioner has filed the application in H.C.M.P.No.173 of 1998, seeking his release on parole for four weeks, pending disposal of the habeas corpus petition. The said request is made mainly on the ground that the petitioner is suffering from heart ailment and thus on the ground of health condition, the petitioner has chosen to make a request for parole for four weeks. 3. Considering the nature of request made by the petitioner and the scope of enquiry to be made on this application, we do not think it necessary to set out in extenso, the allegations made by the petitioner in the affidavit filed in support of his application. Suffice it is to point out that a detailed objection has been filed by the State Government. 4. Suffice it is to point out that a detailed objection has been filed by the State Government. 4. Learned counsel for the petitioner submitted contentions on merits of the case viz., about the validity and necessity for the impugned order of detention. He also pointed out that the petitioner being a Foreign National and his passport having been impounded by the Customs Department and there being no other adverse case, there is no necessity for passing the order of detention, more so when proceedings have been already initiated under Sec.135 of the Customs Act before the criminal court as against the petitioner. In our opinion, it will not be appropriate to consider these aspects at this stage since we are not dealing with the main petition. We are confined only to the question of grant of parole to the petitioner. Therefore, any exercise upon the merits of the case, will be premature besides being in-appropriate. 5. It is not dispute that the petitioner has not made any application to the Government concerned, seeking parole. 6. The law on this point is very clear. The Supreme Court has laid down in Poonam Lata v. M. L. Wadhawan Poonam Lata v. M. L. Wadhawan 1987 S.C.C. (Crl.) 506 that the grant of parole is essentially on executive function, and that a detenu seeking to have the benefit of temporary relief of parole must go to the appropriate Government first and that there is no scope for entertaining an application for parole by the court straightaway and that the court cannot usurp the functions of the Government. The Apex Court has also observed in the decision reported in Pushpa Devi M. Jetia v. M. L. Wadhawan Pushpa Devi M. Jetia v. M. L. Wadhawan 1987 S.C.C. (Crl.) 526 that the objective underlying preventive detention cannot be achieved or fulfilled if the detenu is granted parole and brought out of detention. Even if any conditions are imposed with a view to restrict the movements of the detenu while on parole, the observance of those conditions can never lead to an equation of the period of parole with the period of detention. Even if any conditions are imposed with a view to restrict the movements of the detenu while on parole, the observance of those conditions can never lead to an equation of the period of parole with the period of detention. The observance of the conditions of parole, wherever, imposed such as reporting daily or periodically before a designated authority reside in a particular town or city, travelling within prescribed limits alone and not going beyond etc., will not prevent the detenu from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel and having full scope and opportunity to meet people his choice and have dealings with them to correspond with one and to have easy and effective communication with whomsoever he like through telephone etc., Thus, the release of a detenu on parole after an order of detention was made and the detenu lodged in custody will be contrary to the purpose of the statute. The Apex Court has held in the ruling reported in Hansaben Jayanthilal Shah v. Union of India Hansaben Jayanthilal Shah v. Union of India [1994] 4 S.C.C. 148 that thepetitioner has to only approach the Government concerned. 7. Sec. 12(6) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act runs as follows: “Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail or bailbond or otherwise.” Therefore, the legal position is that ordinarily the petitioner cannot ask for parole. 8. Learned counsel for the petitioner urged that this Court has inherent jurisdiction under Art.226 or 227 of the Constitution, as the case may be, to grant parole, in spite of the provisions contained in Sec. 12(6) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and the decision of the Supreme Court, especially that reported in Poonam Lata v. M. L. Wadhawan Poonam Lata v. M. L. Wadhawan 1987 S.C.C. (Crl.) 506 wherein the Apex Court has held that there is no scope for entertaining the application for parole by the Court straightaway, is only in the nature of obiter and therefore, this Court need not feel shackled by that decision. 9. We are not prepared to accept this submission. 9. We are not prepared to accept this submission. A clear and categoric proposition of law has been laid down by the Supreme Court and this view also has been reiterated in the other decision to which we have also referred to. Therefore, in our opinion, it is not possible to accept the contention of the learned counsel for the petitioner that the law laid down by the Apex Court in Poonam Lata v. M. L. Wadhawan Poonam Lata v. M. L. Wadhawan 1987 S.C.C. (Crl.) 506is in the nature of obiter. 10. As regards the health condition of the petitioner, the petitioner after remand, was examined at the Government General Hospital on 11.6.1998 for complaint of chest pain. There, he was examined by Dr.Chockalingam, Cardiologist in-charge, Coronary Care Unit, Department of Cardiology, Government General Hospital, who after examining the accused has stated that the petitioner is not suffering from any serious heart problem. Thereafter, the petitioner was examined by a team of Doctors attached to Apollo Hospital. Their opinion is found in the letter dated 18.11.1998, wherein they have stated as follows: “The detenu underwent 2D Echo this morning which revealed mild thickening of the aortic valve leaflet with bicuspid aortic valve. Rest of the examination was normal. His coronary angiography done this evening revealed normal coronary anatomy and normal LV function. There was no gradient across the aortic valve to suggest any significant aortic stenosis. In essence Mr.Virajilal has essentially normal cardiac structure and function.” 11. Thereafter, on the petition by the detenu, he was examined by a team of Doctors headed by Dr.Bhat, Retired Vice Principal, Professor and Head of the Department of Medicine, K.M.C. Hospital. They were of the opinion that the detenu requires further investigations like coronary angiogram and such other advanced investigations in a well equipped hospital or nursing home, where the facilities exist. After the clinical examination, the tentative diagnosis arrived by them is that the petitioner has aortic stenosis, a condition caused by the failure of the aortic valve to open fully to allow the passage of blood in to erotic. 12. Thus, as regards the petitioners request based upon medical grounds, on he one side we have the report of the Cardiologist of the Government General Hospital and also that of the Apollo Hospital to the effect that the detenu has a normal heart condition, befitting his age. 12. Thus, as regards the petitioners request based upon medical grounds, on he one side we have the report of the Cardiologist of the Government General Hospital and also that of the Apollo Hospital to the effect that the detenu has a normal heart condition, befitting his age. According to the opinion of Dr.Bhat, the detenu has aortic stenosis and it may possibly lead to hear complications. The materials now before the court regarding the physical condition of the petitioner, do not provide any definite indication, decisive enough to persuade this Court to accept the request made on the ground of health at any rate at this stage. 13. Therefore, in our opinion, the request of the petitioner for the grant of parole, coming as it does straightaway to this Court, cannot be accepted by this Court. The petitioner is at liberty to move the appropriate Government for his release on parole on the health grounds, and thereafter approach this Court, if it becomes so necessary. Therefore, in the view of the matter, we have to reject the request of the petitioner. 14. The petitioner is now said to be in Apollo Hospital. The petitioner was thus a remand prisoner in jail only for a short period. The authorities of the Apollo Hospital are at liberty to discharge the petitioner and permit the Jail Authorities to take custody, if his health conditions permit.