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2007 DIGILAW 977 (DEL)

BHAJAN SINGH v. UNION OF INDIA

2007-05-10

BADAR DURREZ AHMED

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BADAR DURREZ AHMED, J. ( 1 ) THIS petition had been filed on behalf of Bhajan Singh and Others, who are relatives of one Tarlok Singh, who was detained under the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "cofeposa") on 23. 2. 1998. The petitioners are aggrieved by a notice issued on 8. 3. 1984 under Section 6 (1) of Smugglers and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "safema". Mr Harjinder Singh submits that although the detention period is over and in fact the detention order had already been revoked, the question of validity of the detention order of Tarlok Singh is in issue because if it is held to be invalid, then no proceedings under SAFEMA could be taken against the petitioner. ( 2 ) THE brief facts are that on 12. 5. 1977 the said Tarlok Singh was arrested in view of the recovery of gold from one Ganga Ram. On 1. 6. 1977 the said Tarlok Singh was granted bail. Thereafter, on 23. 2. 1978 the said Tarlok singh was detained under the COFEPOSA Act and a detention order was served upon him. Along with the detention order the grounds of detention was also given. However, no other documents were given to the detenu (Tarlok Singh ). The said detenu made a representation before the Advisory Board. But the same was not accepted and the detention was upheld. The said Tarlok Singh, being aggrieved by the detention, filed a petition under Article 32 of the Constitution of India before the Supreme Court on 21. 8. 1978. Subsequently, this petition was withdrawn by the said Tarlok Singh on the assurance given by the respondents that the detention order was being revoked. The detention order was revoked on 19. 9. 1978 by the Delhi Administration. Six years later, i. e. on 8. 3. 1984 a notice under Section 6 (1) of SAFEMA was served upon the petitioners in respect of the detention of the said Tarlok Singh. The petitioners filed this writ petition on 6. 5. 1984. On 17. 5. 1984, Rule DB was issued limited to the question of vires of SAFEMA. The petitioners, being aggrieved by the limited rule being issued, approached the Supreme Court which, by an order dated 18. 1. The petitioners filed this writ petition on 6. 5. 1984. On 17. 5. 1984, Rule DB was issued limited to the question of vires of SAFEMA. The petitioners, being aggrieved by the limited rule being issued, approached the Supreme Court which, by an order dated 18. 1. 1993, directed that the petitioner may also challenge the detention order itself. Thereafter, the matter came up before the Division Bench on 14. 3. 2005 when it was stated by the learned counsel appearing for the petitioners that the challenge to the vires of SAFEMA was not being pressed as the Supreme Court already upheld the validity of SAFEMA. Therefore, the petition was limited to the question of validity of the detention order. In these circumstances, the division Bench directed that the matter be placed before a Single Bench. ( 3 ) MR Harjinder Singh, the learned senior counsel appearing on behalf of the petitioners submits that he challenges the detention order on three points. The first point taken by him is that the documents relied upon in the grounds of detention were not supplied with the grounds. The documents which were relied upon and not supplied, have been referred to in paragraph 5 of the writ petition. He submits that, in fact, not a single document had been given to the detenu Tarlok Singh so as to enable him to make an effective representation. ( 4 ) THE second point urged by Mr Harjinder Singh was that the show cause notice issued to Tarlok Singh under the Customs Act, 1962 and the reply given by the said Tarlok Singh were not placed before the detaining authority and, therefore, this was also a case of non-application of mind on the part of the detaining authority. The third point urged by Mr Harjinder Singh was that the purported confessional statement made by the said Tarlok Singh had been retracted by him. However, the retraction was not placed before the detaining authority and, therefore, the detaining authority did not have sufficient material before it to have made up his mind for detaining Tarlok Singh. He submits that for all these reasons, the detention order was invalid and was liable to be set aside. However, the retraction was not placed before the detaining authority and, therefore, the detaining authority did not have sufficient material before it to have made up his mind for detaining Tarlok Singh. He submits that for all these reasons, the detention order was invalid and was liable to be set aside. In support of his contentions Mr Harjinder Singh relied upon the judgment of the Supreme Court in S. Gurdip Singh v. Union of India and others: AIR 1981 SC 362 (Paragraph 2) and upon a Division Bench decision of this court in Ranu Bhandari v. Union of India and Others: 2006 (3) JCC 1501 (Paragraph 39 ). ( 5 ) MS Ahlawat appears on behalf of the Government of NCT of Delhi and submitted that she was unable to locate the detention file but has been able to examine the file which contains the proceedings leading up to the revocation order. She submitted that the revocation order was passed on the basis of advice of the counsel appearing before the Supreme Court on the ground that there was delay in issuance of the detention order and that the customs department, which had initiated the process, had subsequently given a proposal for withdrawal of the detention. She also submitted that the revocation order was passed subsequent to the Lieutenant Governor approving the same. ( 6 ) MS Barkha Babbar, who appeared on behalf of the respondent Nos. 1 and 3, submitted that the role of the respondent Nos. 1 and 3 would only arise once the validity of the detention order is determined. In case the detention order is upheld, the proceedings under SAFEMA would continue and would be lawful. However, if the detention order is set aside in view of Section 2 (2) (b) (iv) of safema, the proceedings under the said Act, cannot be continued. ( 7 ) THE core question, therefore, is as to whether the detention order was valid or not. Before I take up that issue, it would be necessary to point out that the scope of provisions of Section 2 (2) (b) of the said Act were considered by the Supreme Court in the case of Union of India and Others v. Mohanlal likumal Punjabi and Others: (2004) 3 SCC 628 . In that case also there was a revocation order passed after a detention order had been issued. In that case also there was a revocation order passed after a detention order had been issued. The detenu thereafter had approached the Court for setting aside the proceedings under safema on the ground of the revocation order. The Supreme Court considered the provisions of Section 2 (2) (b) of the said Act in depth and concluded that although there was a revocation order, since that revocation was done by the central Government and was unrelated to the report of the Advisory Body, it would not fall within the type of revocation orders which are referred to in the said provision. The Supreme Court, however, considered the fact that even though the revocation order did not fall within the type of revocation orders mentioned in 2 (2) (b) of the said Act, the order of detention itself could be challenged in a subsequent writ petition even though an earlier writ petition had been disposed of as having become infructuous. In this context, the supreme Court held as under:- "16. That brings us to the residual question as to whether the order of detention could be challenged subsequent to the disposal of the earlier writ petition on the ground that it had become infructuous. According to learned counsel for the appellants, position has been settled beyond doubt that it is impermissible in view of what has been stated in Attorney General Case1. This submission deserves no serious consideration, being one made in disregard of the view taken already by this Court. We find that the effect of the said decision was considered in the two decisions relied upon by learned counsel for respondents 1 and 2. The view taken in Amritlal Chandmal Jain case2 and karimaben K. Bagad case3 does not call for any further or fresh look or consideration " the same being not only just and reasonable but quite in conformity with the basic tenets of rule of law but commends for our respectful acceptance, as well. " "17. In both these cases, it was held that the subsequent writ petition is maintainable and it should rightly be so having regard to the consequential action taken at any rate under the SAFEMA. " "17. In both these cases, it was held that the subsequent writ petition is maintainable and it should rightly be so having regard to the consequential action taken at any rate under the SAFEMA. Otherwise it would amount to the government concerned being allowed/enabled by their action to disable and denude the person aggrieved from questioning the very applicability of the SAFEMA to him or his properties dehors his other rights to challenge the same otherwise on merits as well. In any event, this aspect as to the legality and validity of the order of detention does not appear to have been considered and decided on merits by the High Court. We, therefore, remit the matter back to the High court for fresh adjudication on merits as to the legality and validity of the orders of detention, for the purpose of applying the provisions of the SAFEMA against the respondents or the properties concerned. " ( 8 ) APART from the observations of the Supreme Court in the aforesaid decision, the question of validity of the detention order has been kept open in view of the orders passed by the Division Bench which had placed the matter for hearing before a Single Bench on account of the fact that the question of vires would no longer exist and only the question of validity remained to be considered. It is in these circumstances that the validity of the detention order is to be considered. ( 9 ) THE main point taken by Mr Harjinder Singh is that the grounds of detention were not accompanied by the documents on which reliance was placed and this in itself was sufficient to invalidate the detention order. It is in these circumstances that the validity of the detention order is to be considered. ( 9 ) THE main point taken by Mr Harjinder Singh is that the grounds of detention were not accompanied by the documents on which reliance was placed and this in itself was sufficient to invalidate the detention order. The Supreme court in the case of S. Gurdeep Singh v. Union of India and Others : AIR 1981 SC 362 , after referring to earlier decisions in the case of Icchu Devi Choraria v. Union of India: AIR 1980 SC 1983 and Smt. Shalini Soni v. Union of India: (1984)4 SCC 544 made the following observations:- "in both these cases, this Court has taken the view that on a proper construction of Article 22 (5) of the Constitution, the service of the grounds of detention on the detenu can be completed only if they are accompanied by the documents or materials on which the order of detention is based; for then alone will the detenu be able to make an effective representation. In other words, if the documents which form the basis of the orders of detention are not served on the detenu along with the grounds of detention, in the eye of law there will be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. " ( 10 ) THERE is no material on record to show that the documents, that were relied upon, were served on the detenu along with the grounds of detention and ms Ahlawat is unable to controvert this fact because the detention file is not available. This being the case the petitioner's contention would have to be accepted that the grounds were not accompanied by the documents on which the detention was based. In view of the aforesaid observations of the Supreme Court in S. Gurdeep Singh (supra), in such an eventuality, the detention order would be void ab initio, the reason being that the detenu would not have had a reasonable opportunity of making a representation against the same. That being the case, I am of the view that the detention order is bad. It is set aside as being void ab initio. In view of the detention order being invalidated, the proceedings under SAFEMA cannot continue. Accordingly, the impugned notice dated 8/9. 03. That being the case, I am of the view that the detention order is bad. It is set aside as being void ab initio. In view of the detention order being invalidated, the proceedings under SAFEMA cannot continue. Accordingly, the impugned notice dated 8/9. 03. 1984 (Annexure E collectively) issued under Section 6 (1) of SAFEMA is also set aside. This writ petition stands disposed of.