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2000 DIGILAW 1476 (PNJ)

Ashok Kumar v. Union Of India

2000-12-04

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This is a petition under Articles 226 and 227 of the Constitution of India read with Section 42, Cr.PC, for setting aside the order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act), passed by respondent No. 1 and seeking further directions to the respondents to release the petitioner from their custody. 2. The facts, which are relevant for the decision of the present petition, are that the petitioner was detained in Central Jail, Patiala, and it was alleged that he had been falsely implicated in this case with a view to save D.S. Kapoor. Customs Inspector. It was alleged that the petitioner was badly tortured and under threat of life he was made to make confessional statement to the effect that he was indulging in prejudicial activities. It was alleged that the order of detention dated 29.12.1999 (copy Annexure PI) was passed by the Joint Secretary to the Government of India under Section 3(1) of the COFEPOSA Act. It was further alleged that the grounds of detention were detailed in Annexure P2 dated 29.12.1999. It was alleged that the order of detention, Annexure PI, which was based on the grounds of detention, Annexure P2, was liable to be set aside. It was alleged that the petitioner was arrested on the night intervening 30/31.8.1999 and was in custody since then. It was alleged that the bail application filed by the petitioner before the CJM, the Sessions Judge and the High Court had been dismissed. It was alleged that the detaining authority had not taken into consideration the fact that the bail application of the petitioner had already been declined upto the High Court and as such there was no material with the detaining authority to come to the conclusion that there was imminent _ possibility of the release of the petitioner on bail. It was further alleged that the detaining authority had also not taken into consideration that there was no previous activity of the petitioner indulging in any prejudicial activity. It was alleged that there was no material with the detaining authority to come to the conclusion that if released on bail, the petitioner will again indulge in similar activities, especially when the bail application ofthe . petitioner had already been declined. It was alleged that there was no material with the detaining authority to come to the conclusion that if released on bail, the petitioner will again indulge in similar activities, especially when the bail application ofthe . petitioner had already been declined. It was further alleged that the alleged prejudicial activity was dated 31.8.1999, whereas the order of detention was passed on 29.12.1999 and there was no explanation for the delay of about 4 months in passing the order of detention. It was alleged that in the detention order, it was mentioned by the detaining authority that the bail application of the petitioner was pending in the High Court. It was further alleged that instead of opposing the said bail application of the petitioner, the order of detention was passed against the petitioner. It was further alleged that the dismissal of the bail application by the High Court also showed that there was no imminent (possibility of) release of the petitioner from detention. It was further alleged that the petitioner made representation to the Union of India on 6.3.2000, but the same had not so tar been decided and there was no explanation for the delay in not deciding the representation of the petitioner and in this manner, the detention of the petitioner had become illegal. It was also alleged that the petitioner had made a representation to the Secretary. Ministry of Finance on 6.3.2000 and uptil now. the petitioner had not received any reply and there was no explanation for the delay in not deciding the representation of the petitioner and as such the detention order had become illegal. It was further alleged that the petitioner had also made representation to the Chairman, Advisory Board on 6.3.2000 and uptil now, no reply had been received and there was no explanation for not sending the reply to the petitioner. It was further alleged that the petitioner was not produced before the concerned authority within the stipulated time and as such, the detention had become illegal. 3. Despite issuance of notice to the respondents, no reply has been filed in this case on their behalf. However, learned counsel for respondent No. 1 has placed on record a copy of the order dated 28.3.2000 passed by the Central Govt. 3. Despite issuance of notice to the respondents, no reply has been filed in this case on their behalf. However, learned counsel for respondent No. 1 has placed on record a copy of the order dated 28.3.2000 passed by the Central Govt. under Section 8(f) of the COFEPOSA Act confirming detention order dated 29.12.1999 and further directing under Section 10 of the COFEPOSA Act that Ashok Kumar, petitioner, shall be detained for a period of one year from the date of his detention i.e. 4.1.2000. 4. I have heard learned counsel for the parties and gone through the record carefully. 5. Learned counsel for the petitioner submitted before me that the petitioner was already in custody and his bail application had already been declined by the Courts concerned and there was no imminent danger of his being released on bail and as such there was no occasion for the passing of the detention order in question. Reliance was placed on the law laid down by their Lordships of Supreme Court in the case reported as Smt. Shashi Aggarwal v. State of UP and others, 1988(1) Crimes 542. Reliance was also placed on the law laid down by this Court in the case reported as Sohan Singh v. State of Punjab and another, 1990 Cr.LJ, 2678 and Karnail Singh v. Union of India and another, 1989(1) All India Criminal Law Reporter 727. Reliance was also placed on the law laid down by their Lordships of" Supreme Court in the case reported as Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and others, 1994 Supreme Court Cases (Crl.) 354. 6. On the other hand, learned counsel for respondent No. 1 placed reliance on the law laid down by their Lordships of Supreme Court, in the case reported as Smt. Hemlata Kantilal Shah v. State of Maharashtra and another, AIR 1982 SC 8. 7. After hearing counsel for the parties and perusing the record, I find great force in the submissions made before me by learned counsel for the petitioner. 8. It is not disputed before me that the bail application of the petitioner was rejected not only by the CJM and the Sessions Court, but also by the High Court. 7. After hearing counsel for the parties and perusing the record, I find great force in the submissions made before me by learned counsel for the petitioner. 8. It is not disputed before me that the bail application of the petitioner was rejected not only by the CJM and the Sessions Court, but also by the High Court. In the grounds of detention, copy Annexure P2, it is mentioned that the bail application of the petitioner was rejected by the CJM, Amritsar, on 13.9.1999 and that the bail application of the petitioner was dismissed by the Sessions Judge, Amritsar, on 16.10.1999 and that the bail application filed by the petitioner before the High Court was pending disposal. It is not disputed before me that meanwhile, the bail application of the petitioner was also dismissed by the High Court. 9. In 1988(1) Crimes 542 (supra), it was held by their Lordships of Supreme Court as under :- "Every citizen in this country has the right to have recourse to law. He was the right to move the court for bail when he is arrested under the ordinary law of the land. If the Stale thinks that he does not deserve bail, the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, it enlarged on bail, would act prejudicially to the interest ot public order....." 10. In the abovesaid case, reliance was placed on the law laid down by their Lordships of Supreme Court in Binod Singh v. District Magistrate, Dhanbad, 1986(4) SCC 416. 11. In 1994 Supreme Court Cases (Cri) 354 (supra) decided by their Lordships of Supreme Court, in the grounds of detention, it was motioned that the Administrator was aware that the petitioner was in judicial custody and had not moved any hail application but nothing prevented him from moving bail application and possibility of his release on baii could no! be ruled out in near future. be ruled out in near future. After noticing the said ground of detention, which merely spoke of a possibility of the detenus release, in case he moved an application for bail, it was held by their Lordships that the said ground neither stated that such release was likely or that it was imminent and it falls short of the requirement enunciated by the Hon ble Supreme Court in the case reported as Kamarunnissa v. Union of India, 1991(1) SCC128. It was further held that under those circumstances, the order of detention was liable to be quashed on that ground alone. In 1989(1) All India Criminal Law Reporter 727 (supra) and 1990 CrLJ 2678 (supra), the orders of detention were quashed by this Court considering that the detenu was already in custody and the bail was refused and there was no chance of his coming out. 12. The authority AIR 1982 SC 8 (supra), relied upon by learned counsel for respondent No. 1, in my opinion, would have no application to the facts of the present case. 13. For the reasons recorded above, in my opinion, there was absolutely no occasion for the detaining authority to have passed the order of detention in this case. Accordingly, the present petition is allowed, the order of detention dated 29.12.1999 and all subsequent orders in this regard are hereby quashed. 14. Petition allowed.