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2001 DIGILAW 45 (PAT)

Mehrunnisa v. Union of India

2001-01-16

D.P.S.CHOUDHARY, P.K.DEB

body2001
JUDGMENT P.K. DEB, J.:- This petition under Article 226 of the Constitution of India has been preferred by the above-mentioned petitioner for quashing the detention order, dated 22.3.2000 passed under Section 3(i), (ii) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter shall be stated as "COFEPOSA" (by the respondent No.2, State of Bihar, through Deputy Secretary Home (Special) Department as contained in Annexure 1 to this writ application and further for issuance of a writ in the nature of habeas corpus to release the detenu Md. Abulias Ahmad @ Chander Singh, husband of the petitioner from his illegal detention in Central Jail at Bhagalpur. 2. The petitioner is the wife of the detenu Sk. Abulias Ahmad @ Chander Singh resident of Ram Krishna Pali, Champashree More, PO Pradhan Nagar, Siliguri, DistrictDarjeeling, who has been confined in the Central Jail, Bhagalpur pursuant to the order of detention passed by respondent No.2, dated 22.3.2000 under the COFEPOSA. The said detention order was served on the detenu on 12.4.2000 while the detenu was in Siliguri Special Jail in connection with another case involving kidnapping of a person. The grounds of detention together with list of documents were served on the detenu. On 16.5.2000, the detenu was taken to Bhagalpur Central Jail where he was informed that he was to be produced before the Advisory Board at Patna High Court which was on 17.5.2000. Accordingly, he was produced before the Advisory Board at Patna and he made his oral submission. It is the contention of the petitioner that the detenu was produced before the Advisory Board without giving him sufficient time to prepare his submissions or to take assistance of any Advocate or friend and, as such, the representations made by the detenu before the Advisory Board was not properly made because of lack of legal assistance, while the adversary the Officers of the State were armed with all legal facilities and, as such, there was violation of Article 22(4) of the Constitution of India. 3. 3. Again on 3.6.2000, the detenu made a representation to the Detaining Authority and to the Central Government but the detenu has not been informed about the fate of his representation Before making such representation, the detenu wanted the copy of the grounds and the documents in vernacular as the detenu was only knowing Urdu language and except signing in Hindi he had no knowledge of English or Hindi but the documents in full had never been supplied in Urdu language. Thus, depriving the detenu to make proper representation which caused violation of Article 22(5) of the Constitution of India Such application through Superintendent of Siliguri Special Jail asking document in Urdu language was made on 21.4.2000 but in spite of that the detenu was not supplied the same in the language known to him. It has further been alleged that the copy supplied to the detenu was illegible and, as such, effective representation could not be made by the detenu. It has also been contended that although on the grounds several documents had been referred to but as per grounds No.(10) regarding the activities of some smuggling finding made by the Commissioner of Customs, Mumbai had never been served on the detenu. There was also delay in initiating the detention order which would be relevant from the following dates: A truck was intercepted at Pasraha by the Customs Official on 27.2.1999. On 28.2.1999, the truck was brought to Muzaffarpur and the Driver of the truck disclosed the name of the detenu before the authorities. On 28.4.1999, a complaint was filed by the Customs Officials before the Court of Economic Offence, Muzaffarpur. On 18.11.1999, Aminul Haque, Driver Baniwari Lal another Driver Puran Singh, khalasi were convicted. The truck was carrying contraband 10 bank radio, foreign made, Medicine Powder but no complaint was filed against the detenu. On 28.9.1999, a show-cause was served on the petitioner for confiscating of seized goods as the Driver disclosed the name of the detenu. On 20.1.2000 the detenu filed reply denying connection with the goods. Then on 11.2.2000, Customs Authority proposed to the State Government for detention. On 22.3.2000, detention order was passed and on 12.4.2000 such detention order was served on the detenu, who was under custody in a criminal case concerning kidnapping and assault of another person. Then on 3.6.2000, the detenu filed representation before the Home Department and Union of India. Then on 11.2.2000, Customs Authority proposed to the State Government for detention. On 22.3.2000, detention order was passed and on 12.4.2000 such detention order was served on the detenu, who was under custody in a criminal case concerning kidnapping and assault of another person. Then on 3.6.2000, the detenu filed representation before the Home Department and Union of India. It is the contention of the petitioner that when the name of the detenu was disclosed for the first time on 28.2.1999 before the Customs Officials, no steps were taken while filing he complaint before the Economic Offences on 28.4.1999 before the Court of Economic Offences, Muzaffarpur. Detenu was never an accused in that case Trial was made and on 18.11.1999 convicting was passed in respect of several other persons and not the detenu. On 28.9.1999 show cause was issued to the detenu, who specifically denied of any connection with such confiscated goods. Then and then, only long after one year Customs Authorities proposed to the State Government for detention. Such delay of one year had never been explained any where and the grounds, of detention nor the detention order speaks about such condonation of delay. The detention order has been challenged on the following points:-(i) The first point; the order passed for wrong purpose which reveals total non-application of mind when there is variation between order passed and the grounds of detention and the affidavit sworn thereof, (ii) non-supply of documents in the language known to the detenu which is violative of Article 22(4) and 22(5) of the Constitution of India, (iii) reliance have been made on several documents in the grounds but all those documents had not been communicated to the detenu, (iv) involvement of the petitioner with the alleged smuggled goods was solely on the basis of the confessions being made by the accused persons in the case under the Economic Offence before the Muzaffarpur Court but such alleged confession had been retracted by the accused Md. Aminul Haque, Banwari Lal and Puran Singh when they filed bail petitions before the Court at Muzaffarpur and also in the representations made through the Superintendents of respective Jails before the Economic Judge, Muzaffarpur but that retraction had never been placed before the Government for consideration for passing of detention order and non-consideration of such retraction is fatal, (v) delay in passing the order as already stated above. The delay in passing the detention order made the order itself stale when no proper explanations were there by the Customs Authority before the Detaining Authority and such delay had never been considered. Overall, it has been stated that practically the basis on which the detention order has been passed on the case of Economic Offences before the Muzaffarpur Court for disclosure of the name of the detenu as the owner of the smuggled goods would never been proved by any iota of evidence and, as such, the whole detention order on wrong basis is fatal. 4. Before going into merit of the present writ petition, it must be maintained that by almost the same order of detention one Prashanto Kumar Sarkar was also detained under the COFEPOSA and the order with the same wordings were passed against him also under Section 3 of the Act. As Prashanto Kumar Sarkar was detained at Siliguri Jail-his wife Kamla Sarkar filed writ petition before the Calcutta High Court being Writ Petition No. 10945(W) of 2000 and the grounds of illegal detention order has been raised similarly as that of the present writ petitioner and the Division Bench of the Calcutta High Court vide order, dated 8.9.2000 held the detention order illegal and issue a writ of habeas corpus for release of the Prashanto Kumar Sarkar and it has been stated in the bar that against such order and direction of issuance of habeas corpus, no appeal has been preferred and it was the first contention on behalf of the petitioner in the present writ petition that when a Division Bench of the Calcutta High Court on the same facts and circumstances had allowed the writ petitioner of the co-detenu Prashanto Kumar Sarkar then the same relief must be available to the petitioner also. There is some force in such submissions and it could not be shown from the side of the respondents that the order passed by a Division Bench of the Calcutta High Court on the same circumstances had even been challenged rather finality of the order of the Calcutta High Court remained as it was. On this contention there is definitely force on the submissions of the learned counsel appearing for and on behalf of the petitioner. 5. On this contention there is definitely force on the submissions of the learned counsel appearing for and on behalf of the petitioner. 5. Although several grounds have been raised regarding illegal detention, the main submission is on the illegality of the order of detention and that there was variation in the order of the detention and that of the grounds of detention which specifically proves the fact of non-application of mind of the Detaining Authority. To consider this aspect, the detention order may be reproduced as contained in Annexure 1:- "Whereas, the State Government is satisfied that with a view to preventing Shri Md. Abulias Ahmad alias Chander Singh R/o Ram Krishan Pali, Pradhan Nagar Champasri More, Siliguri (W.B.) Pin Code-734403 from engaging in smuggling foreign goods it is necessary to make an order that he be detained. Now, therefore, in exercise of the powers conferred by sub-sections (i), (ii) and (iii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) State Government hereby direct that the said Shri Md. Abulias Ahmed be detained. Shri Md. Abulias Ahmad shall be detained in Special Central Jail, Bhagalpur and shall be kept in Class III. J/De-Confe- By order of the Governor of Bihar A.K. Royo Deputy Secretary to Government Forwarded, in triplicate to Deputy Inspector General of Police, CID, Bihar, Patna for immediate service on the detenu. This should be read over and explained to the detenu. One copy should be given to the detenu, second copy kept in jail and third copy bearing the signature of thumb-impression of the detenu in token of receipt, should be returned to Government immediately." The grounds for detention was as per the order itself is from preventing the detenu from engaging in smuggling foreign goods but the grounds annexed to the order of detention as contained in Annexure 2 at paragraph 12, it was mentioned as below : "From the above, it is evident that Sri Abulias Ahmad @ Chander Singh is one of the main kingpin of smuggling activities in North Bengal and Bihar and is an habitual offender under the Act. As such, the Government has decided to detain Sri Abulias Ahmad @ Chander Singh r/o Ram Krishan Palli Champashree More, Siliguri, West Bengal under the COFEPOSA Act to prevent him from indulging in activities which are prejudicial to the public order and interest." Thus, it is the contention of the learned counsel for the petitioner that the grounds of detention which is the part of the detention order itself is invariation with the purpose of detention which proves fatal and such ground is not available under Section 3 of the Act. Before considering that fact, the legal position regarding consideration of legality or otherwise of the detention order should be construed. By such detention order the different Acts such as COFEPOSA, DI Rules, MISA, there is curtailment of personal liberty of a person and in such curtailment the framers of the Constitution have given much safeguards in the procedural aspect as curtailment of personal liberty is of paramount importance when by a simple order under a rule or an act a person is deprived of a fundamental right. In that way strict compliance with the letter of the rule is to be considered as the essence of the matter. The framers of the Constitution were very much conscious about the safeguards of the preventive detention which involves a serious encroachment on the right to the liberty and, as such, there were incorporation of clauses 4 and 5 of the Article 22 and by the judgments of the Apex Court and the different High Courts it has been held to the built that such safeguards provided by the Constitution should be meticulously followed while passing the detention order and the Courts of law should watch and scrutinise while considering the detention order as to the protective of minimum safeguards granted by the Constitution. It was also held and now the established principle of law that while considering such safeguards the order of detention must be scrutinised to the extent that it had followed the provision of detention under the preventive Acts in letter and spirit and there is not scope of modulation or variation to find out inner meaning of the intention while scrutinising the detention order. Thus, the above-mentioned principle should be kept in mind while considering the points as raised from the side of the petitioner. Thus, the above-mentioned principle should be kept in mind while considering the points as raised from the side of the petitioner. While scrutinising the detention order passed and the subsequent procedures followed as provided under the Act and the safeguards given by the Constitution of India, the detention by the Constitution of India, the detention order has been passed under Sections 3(i), (ii) and (iii) of the COFEPOSA which may be reproduced as follows : "3". Power to make orders detaining certain persons.-(1) The Central Government or the State Government may, (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to,- (i) the defence of India, the relations of India with foreign powers, or the scrutiny of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make a order directing that such person be detain. So as per those provisions detention may be made to prevent a person from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods and such prevention is for acting in any manner prejudicial to the conservation or augmentation of foreign exchange. Nowhere there is any ground under this Act for detention for engaging in smuggling foreign goods. There may be detention for engaging in transporting or concealing or keeping smuggled goods. Engaging in smuggling foreign goods according to the learned counsel for the petitioner remains a vague one and does not conform to any of tile grounds specifically enunciated under the Act. Herein in the present case, it was the allegation that this detenu was engaged in transporting or keeping smuggled goods but the grounds of detention had not mentioned so. Practically that could not be made so as the detenu was never being found in the scene of occurrence having smuggled goods in his possession rather he was said to be the owner of the confiscated/smuggled goods. Practically that could not be made so as the detenu was never being found in the scene of occurrence having smuggled goods in his possession rather he was said to be the owner of the confiscated/smuggled goods. It is the contention of the State counsel and also the Central Government that engaging in smuggling foreign goods as mentioned in the detention order as contained in Annexure 1 conform to grounds mentioned in clause (iii) of Section 3(1) of Act. Non-mentioning of transporting can be considered to be an omission only. But, I am not convinced with such submission as there was no allegation to the effect that the detenu was transporting the goods at the relevant time for which detention order was passed. So, the reasons for detention remained vague one and when vagueness is there then there is no scope to sustain such detention order. Moreover, there is total variation in the detention order as contained in Annexure 1 than the grounds of detention as stated in Annexure 2 wherein as per the paragraph 12 the preventive order was made, such detention order was made for preventing the detenus from indulging in activities which are prejudical to the public order and interest. Nowhere in the COFEPOSA the question of public order and interest comes in. It may come under the DI Rules or MISA but not under COFEPOSA. Section 3(1) is categorical in this respect. The detention can be made "with a view" to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange". Here the question of augmentation or conservation of foreign exchange had not been stated as per the grounds and hence, the grounds of detention is in total variation from the detention order itself. Moreover, the grounds for detention are total foreign and unknown to the COFEPOSA as nowhere there is any mention under the Act regarding prejudice to public order and interest. It is submitted for and on behalf of the respondents that prejudicial to the public order and interest includes the prejudicial or augmentation of the foreign exchange and smuggling. It has already been mentioned in the preceding paragraph that there is no scope of interpretation in such a way as the same would take away the safeguards provided under Article 22 of the Constitution of India. It has already been mentioned in the preceding paragraph that there is no scope of interpretation in such a way as the same would take away the safeguards provided under Article 22 of the Constitution of India. The detention must be as per the provisions of the Preventive Act in letter and spirit and there cannot be any scope of its interpretation in vague way. In that way definitely, the detention order is bad in the eye of law. When the whole detention order as initiated from the Customs authorities are on the basis of confessions being made by the accused persons in the criminal case of the Economic Offences before the Muzaffarpur Court then such denial or retraction by the accused-persons before the Court of Economic Offences, Muzaffarpur is a relevant matter and it must have been placed before the Detaining Authority but that had never been .made available and nowhere it is mentioned that such retraction was not within the knowledge of the Customs authorities because the Customs authorities had initiated the criminal proceeding before the Court of Economic Offence, Muzaffarpur and after the trial has been concluded such initiation for detention was made and, as such, the retraction from confessions the basis for proceeding against the detenu was definitely a relevant factor and was important fact which could have modulated the mind of the Detaining Authority which must have been placed before the Detaining Authority and non-submission of those documents before the Detaining Authority is definitely fatal. In this connection, the learned counsel has referred to two judgment of the Calcutta High Court as reported in ECC (59) page 479 (Anup Kumar Ghosh v. Central Government) and also 1996 Cal Cr LR 136 (Re-Manick Shah v. State), AIR 1999 SC 1178 (Vijay Kumar Dharna v. Union of India,) and (1982) SCC 3 page 18 (Yumnam Mangi Babu Singh v. State of Manipur) and (Santaram Gajanan Kenekar v. Union of India,) as reported in (1994) SCC 2 571. 6. 6. The cardinal principle regarding the scrutiny of detention order had been elaborated by Constitution Bench as reported in 1996 Supreme Court 740 (Ram Manohar Lohia v. State of Bihar,) wherein in that case the detention order was under the defence of India Rules and the majority view was that where a man can be deprived of his liberty under a rule by a simple process of making of a certain order, he can only be so deprived if the order is in terms of the Rule. Strict compliance with the letter of the Rule is essence of the matter. In that case, detention order was made for the act prejudicial to the public safety and the maintenance of law and order but the Defence of India Rules mentioned about public order and non-mentioning of such words or non-consideration of prejudice to the public order was construed to be fatal to the detention order itself. In the present case as mentioned above, the detention order itself discloses total non-application of mind as there is variation between the grounds of detention and the detention order itself and that the grounds stated for detention were unknown and foreign to the letters of provision of detention as reproduced under Section 3 of the COFEPOSA. When the detention order itself is illegal, I feel, I may not consider the other grounds challenging the detention order as mentioned in the preceding paragraph although I find that those grounds of attack had also sufficient force in the facts and circumstances of the present case. Thus, this writ petition is hereby allowed. The detention order as contained in Annexure 1 together with the grounds of detention as contained in Annexure 2 are hereby quashed and a writ is issued to release the detenu forthwith who has been detained by the order, dated 22.3.2000 vide order No. 204/C, Government of Bihar.