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2002 DIGILAW 667 (JHR)

Chandra Dev Narain Singh v. State Of Jharkhand

2002-06-19

TAPEN SEN, VINOD KUMAR GUPTA

body2002
ORDER 1. The petitioners Chandra Deo Narayan Singh and Aditya Singh have come up before this Court challenging the two detention orders. Under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, bearing numbers 673/72/ 2000-CUS-VIII and 673/73/2000-CUS-VIII, both dated 16.11.2000 and issued against them by the Joint Secretary COFEPOSA, Ministry of Finance, Government of India. Consequently, the petitioners have prayed for issuance of an appropriate writ or a writ of or in the nature of a writ of certtorori for quashing the aforementioned detention orders. 2. The petitioners have stated that they are both Directors/Partners of Quality Apparel Exports, a Partnership Firm and what both the said Company and the Firm have their place of business and their offices at MIDC, Marol, Andheri (EAST) Mumbai and also at Ranchi. They have further stated that they have a house at Mumbai and also at the Kanke Road. According to the petitioner and or about 31.05.2000, about 700 Cartons of readymade garments were cleared for export by the Customs Authority at Mumbai and a "Let Exports" endorsement was made under Section 51 of the Customs Act. According to them, once such a "Let Export" endorsement was made, the same could not have been challenged without taking recourse to the provisions of Section 129-D of the Customs Act. However, contrary to the same, the officers of the preventive department of customs seized the goods on 2.6.2000. According to the petitioner, the seizure was ex parte, behind their back as no notice had been given to them. Subsequently, the petitioner No. 2 was interrogated and his statement recorded on 13.6.2000 and 16.6.2000 whereafter, the petitioner No. 2 was arrested on 16.6.2000 under Section 104 of the Customs Act. He was however released on bail on 11.7.2000. The petitioners have stated that the authorities showed the petitioner No. 2 some samples of rags contained in gunny bags alleging that these were being exported by the petitioners. According in the petitioners, the petitioner No. 2 refused to accept such allegations and gave a statement to the effect that the gunny bags never belonged, to the petitioners and that in any event, readymade fashion garments being costly goods are never exported in gunny bags and that they are exported in cartons. According in the petitioners, the petitioner No. 2 refused to accept such allegations and gave a statement to the effect that the gunny bags never belonged, to the petitioners and that in any event, readymade fashion garments being costly goods are never exported in gunny bags and that they are exported in cartons. The petitioners have stated that on 19.7.2000, when the petitioner No. 1 came to Mumbai after having heard about the arrest of his son (i.e. petitioner No. 2) he (petitioner No. 1) was also arrested in Court and some statements were obtained from him on several dates. The petitioner No. 1 who had been arrested and his younger son Randhir Singh who had also been arrested on 19.7.2000 were released on bail on 8.8.2000. The petitioners have stated that after having been released on bail they did not hear anything from either the custom or any other authority but subsequently came to learn that the custom authorities were making allegations that the petitioners had been exporting rags instead of readymade garments and had thereby misappropriated the drawback incentives issued by the Director General of Foreign Trade. The petitioners have further stated that till date there has been no order of adjudication and since August 2000, the matter was lying in a state of suspended animation when in March 2001 ah order of detention dated 16.11.2000 was served upon the younger son of the petitioner No. 1 which was challenged by him before the Mumbai High Court, vide w.P. No. 987 of 2001 and the order of detention was quashed, vide order dated 6.11.2000. Similarly, the order of detentfon was also served on an employee of the petitioners and that was also quashed by the Mumbai High Court on 19.10.2001 in W.P. No. 227 of 2001. However, the petitioners have stated that no such order of detention has been served either upon the petitioner No. 1 or the petitioner No. 2. 3. The petitioners have stated that on 4.4.2002 some police-officers came to their residence when they were not present and showed some newspaper clippings to their servants with the impugned orders of detention issued in the names of the petitioners and published in Times of India, Patna edition on 16.2.2001. 3. The petitioners have stated that on 4.4.2002 some police-officers came to their residence when they were not present and showed some newspaper clippings to their servants with the impugned orders of detention issued in the names of the petitioners and published in Times of India, Patna edition on 16.2.2001. According to petitioners, the orders of detention are de hors the provisions of the Act, actuated by malice, vague, have been passed for a wrong purpose and on extraneous and irrelevant grounds. 4. The learned counsel for the petitioner has argued that there has been an unexplained delay of approximately a little over five months from the date of seizure to the date of passing of the order of detention, i.e. from 2.6.2000 to 16.11.2000. He has also argued that in view of the fact that till date execution has not taken place, therefore, the delay is continuing and no attempt has been made by the respondents for execution of the detention order. 5. His third argument is that the procedure adopted should have been that only after a recommendation was made for detention by a proper authority under the Act, the same should have been placed before a Screening Committee which should have taken a decision. Thereafter, the decision of preventive detention of the Committee is placed before the Joint Secretary, COFEPOSA, who merely acts in an almost ministerial act of formally signing and issuing the order of detention. According to the petitioners, the aforementioned procedure has not been followed. 6. We are not inclined to enter into these aspects especially because of the fact that the entire case Is still at a pre- execution stage. 7. In the case of Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., reported in 1992 Supp (1) SCC 496, and upon reading the same with special reference to paragraph 30 thereof, it is relevant to note that so far as detention orders are concerned, the Honble Supreme Court has held that if a detenu is permitted to challenge an order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Their Lordships have further held that it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. But interference at pre-ex- ecution stage is very limited unless, the, courts are satisfied that (i) the impugned order is not passed under the Act under which it is purported to have been passed; or (ii) that it is said to be executed against a wrong person; or (iii) that it is passed for a wrong purpose; or (iv) that it is passed on vague, extraneous and irrelevant grounds; and (v) that the authority which passed it . had no authority to do so. 8. Perhaps, it was to verify as to whether the case of the petitioners fell under the aforesaid parameters laid down by the Apex Court that this Court, vide its order dated 26.4.2002, recorded the undertaking given by Mr. P.K. Prasad, learned Sr. S.C.C.G. that he would produce the original records in a sealed cover for the perusal of this Court only. 9. The original record produced by Shri P.K. Prasad has very carefully been perused by us. More particularly, we have gone through the grounds of detention. The grounds of detention are very elaborate and contain extensive and comprehensive details about various material facts and- material particulars. On consideration of the grounds of detention and on, perusal of the original record produced by Mr. Prasad in the Court, we have no hesitation in holding that the case of the petitioners does not come within any one of the 5 parameters propounded by Supreme Court in Alka Subhash Gadlas case. Actually, Mr. Sarkar, learned counsel, appearing for the petitioners had limited his contention only with respect to two of, the 5 parameters, namely, that the impugned order was passed for a wrong purpose and/or that it was based on vague, extraneous and irrelevant grounds. He had not touched upon any of the other three parameters enumerated in Alka Subhash Gadias case. In so far as the aforesaid two parameters are concerned, on perusal of the grounds of detention and the record produced before us, we are satisfied that neither the detention order was passed for any wrong purpose nor was it based on vague, extraneous or irrelevant ground. In so far as the aforesaid two parameters are concerned, on perusal of the grounds of detention and the record produced before us, we are satisfied that neither the detention order was passed for any wrong purpose nor was it based on vague, extraneous or irrelevant ground. These observations, however, are being made by us only for the limited purpose of holding that this writ application at this pre-execution stage is not maintainable and that we, for the aforesaid reasons, do not feel inclined to entertain the writ application at pre-execution stage. These observationst however, should not be construed as any expression of opinion by us, if and when the detention order is challenged by the petitioners at any appropriate stage, before any appropriate forum in appropriate proceedings. 10. Since Mr. Prasad, the learned Central Government Standing Counsel had raised the question, with respect to the lack of territorial jurisdiction, as far as this Court is concerned, we may deal with that aspect as well. The petitioners invoked the territorial jurisdiction of this Court only on the premise that the petitioners live in- and belong to Ranchi. We are not very sure whether the factual assertions of the petitioners about their living in and belonging to Ranchi are correct or not. There is strong doubt about this factual assertion of the petitioners. The learned counsel for the petitioners drew our attention to the counter affidavit of the respondent No. 2 and submitted that Ah- nexure C, which is a letter No. 1293/GS issued from the office of the Senior Superin tendent of Police, Ranchi on 22.4.2002 establishes that this Court has the necessary jurisdiction to interfere. 11. We do not accept the aforesaid contention and we must express our strong disapproval in the manner in which the authorities of the police including the office of the DGP and the Senior Superintendent of Police have attempted to twist the issues by giving a wrong picture to the Deputy Secretary, Government of India, Ministry of Finance, Department of Revenue, COFEJPOSA Section in relation to a request received from that office by the Director General of Police, Jharkhand, Ranchi. 12. It appears that on 20.4.2002, the DGP Hqrs., Ranchi wrote a letter to the Senior Superintendent of Police in relation to the inquiry conducted pursuant to the filing of this case. 12. It appears that on 20.4.2002, the DGP Hqrs., Ranchi wrote a letter to the Senior Superintendent of Police in relation to the inquiry conducted pursuant to the filing of this case. That letter is Annexure B to the counter affidavit and in Hindi it is, mentioned at internal page 2 thereof that "Janch se yeth tathya bhit prakash mey aaya hai ki Chandra Deo Narayan Singh ewam Aditya Singh Prayah Bombay Sthit apne makan mey hee rahte hain aur vahan vada kadu hee aate hain. Bataya gaya ki Bombay mey, sambhwatah juhu. Elake mey Chandra Deo Narayan Singh ne apne ek kaji bada makan bana rakha hat Agai Bagal ke kuch logon ne gopantya roop se yah bhee jankari di hai ki kaji kam samay mey hee Chandra Deo Narayan Singh ne kafi badi sampati Bombay mein arjit kar lee hai jo yahan unke parichiton ke beech ek ascharya ewam charcha ka vishay raha hai". (Quoted Verbatim but underlining supplied). 13. Instead of giving the exact translated version of the aforementioned remarks/ report, the Senior Superintendent of Police while writing to the aforementioned Deputy Secretary to the Government of India on 22.4,2002 wrongly, incorrectly and contrary to the report stated as follows : "In course of inquiry it is come to the notice that generally both the petitioners are residing at Bombay and they used to come to Ranchi often and on. The people residing near the said locality informed that they are surprised to see that in a very period, Chandra Deo Narayan Singh has earned a lot in Bombay." (Quoted verbatim but underlining supplied). 14. The SSPs letter in English conveys a totally different picture because it says that both the petitioners used to come to Ranchi often and on while the report in Hindi refers to their visit as Yada Kada". The words "Yada Kada" does not mean either "often and on" or frequently. The word "often" in English means,--"frequently" or "many times" or "at sort intervals" and in Hindi it means "Akshar" or "Prayah". The word Yada Kada" means "occasional" or "at sporadic intervals". It does not mean "frequent" or "at short intervals" because if it were to mean so, then it would not have been said in Hindi that both the petitioners remained in Bombay for almost all the times. (Prayah Mumbai sthit Apne makan mein hee rahte hein). 15. The word Yada Kada" means "occasional" or "at sporadic intervals". It does not mean "frequent" or "at short intervals" because if it were to mean so, then it would not have been said in Hindi that both the petitioners remained in Bombay for almost all the times. (Prayah Mumbai sthit Apne makan mein hee rahte hein). 15. How and why is it that Senior Superintendent of Police, Ranchi, sent the letter giving a totally different picture from the report of the DGP is not known. After having gone through the original records, we feel that in such a serious matter the Senior Superintendent of Police, Ranchi should have been more careful and should not have given a wrong picture to the Central Government. 16. We, accordingly, direct the Director General of Police, Jharkhand, to personally look into the matter and find out whether the Central Government was, faithfully and truly, given the exact and accurate information with respect to the petitioners in order to enable the Central Government to file proper counter affidavit in this Court while dealing with the factual assertions of the petitioners regarding their residence in Ranchi. We are saying so because the Central Government in all fairness took the help of the State Police in ascertaining the factual aspect relating to the residence of the petitioners and, therefore, it was expected of the State Police to have rendered fullest co- operation to the Central Government and to have furnished and provided to the Central Government, the factual position with hundred per cent accuracy, faith and sincerity. If the Director General of Police finds that this was not done, we leave it to him to take whatever administrative/disciplinary action that he may deem, proper against erring officials of his Force. Based on the aforesaid decision, therefore, and finding that the writ application is not maintainable on any ground, we dismiss the same but without any order as to costs. We reiterate that the dismissal of this petition shall not be construed by anyone as any expression of opinion by this Court with respect to the merits or the legality of the detention orders passed against the petitioners, if and when these constitute the subject-matter of any challenge before any forum. The observations made in this judgment were confined to the issues involved in this case and should, thus, be viewed in that perspective only. 17. The observations made in this judgment were confined to the issues involved in this case and should, thus, be viewed in that perspective only. 17. Copy of this judgment shall be sent to the Director General, Jharkhand Police, Ranchi, for his information and due compliance in accordance with the directions contained herein.