Delhi High Court
Ajay Kumar Goel vs Union Of India And Ors. on 2 August, 1992
Equivalent citations: 1993CRILJ2460, 1992(3)CRIMES263, 48(1992)DLT246, 1992(24)DRJ183
JUDGMENT Mohd. Sharnim, J.
(1) The petitioner through the present writ petition challenges the legality and the validity of the detention order dated August 29, 1991 passed under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ' the Cofeposa Act') with a view to preventing him from smuggling into India contraband goods.
(2) Brief facts of the present petition are as under: that the petitioner is a citizen of India and is a resident of 20/5, Rana Pratap Bagh, Delhi. The officers of the Directorate of Revenue Intelligence were keeping a close watch on the activities of the petitioner on account of suspicion and as such apprehended him on August 8, 1991 while he was driving a Maruti Car on the aforesaid date. On search of the said car 190 gold biscuits of foreign markings were recovered from underneath of the seat of the driver. The petitioner on being questioned failed to produce any evidence for the lawful possession of the above said gold biscuits. Consequently, they were seized under Section 110 of the Customs Act, 1962. The petitioner was arrested under Section 104 of the Customs Act and was produced before the court. He was remanded lo judicial custody for the period ending August 29.1991. The impugned order of detention was served on the petitioner on August 29,1991. The said order is illegal, invalid and is liable to be quashed, inter alia, on the following grounds.
(3) The petitioner is a matriculate. He has studied through a Hindi Medium School. He, as such, understands only Hindi language. He cannot read and write any other language. The detaining authority curiously enough without taking into consideration the above fact supplied all the documents, including the grounds of detention only in English language and in no other language. It is thus virtually tantamount to non-supply of the material and the documents relied upon by the detaining authority. It is a clear violation of Article 22 of the Constitution of India. ' It makes the above detention order illegal and void. The petitioner vide his representation dated September 6,1991 apprised the detaining authority of the above said fact and requested them to supply to him all the documents relied upon by them in Hindi language, but to no avail. Thus, the detention order is liable to be set aside on this ground also.
(4) The petitioner was already in jail when Ihe detention order dated August 29,1991 was served upon him as he has been remanded to judicial custody by Ihe Chief Metropolitan Magistrate for the period ending August 31.1991. Hence, there was no likelihood of his being released on bail. In view of the above there was no compelling necessity to detain the petitioner preventively because he was effectively prevented from indulging in any activity sought to be curbed by passing the impugned order of detention. The detention order is thus illegal and invalid.
(4) The petitioner was tortured and forced to make a voluntary statement by the officers of Dri on August 8,1991 while he was taken to the office of the Directorate of Revenue Intelligence, New Delhi. The petitioner retracted the said involuntary statement vide his letter dated August 8,1991. The petitioner through his letter alluded to above sent through jail to the learned Acmm, Delhi informed him that nothing incriminating was recovered from his possession and he was compelled and impelled to make an involuntary statement. He was neither allowed to ring up his family members nor even allowed to consult his lawyer. This retraction was a very material and vital document yet the same was not placed before the detaining authority which could have influenced their mind one way or the other. It thus rendered the detention order void ab initio.
(5) The petitioner has not been supplied with the proposed grounds of detention and the reports of the screening committee which were put up before the detaining authority. The said documents were relied upon by the detaining authority while passing the impugned order of detention and the same have not been supplied to the petitioner. It thus rendered the impugned detention order illegal and invalid. It has therefore, been prayed that the detention order, adverted to above, be quashed and the petitioner be set at liberty hence.
(6) The respondent filed a counter-affidavit to the show cause notice issued by the Court. However, none appeared for and on behalf of the respondent to press the said affidavit.
(7) Learned counsel for the petitioner Mr. Bagai has contended with great zeal and fervour that the petitioner knows only Hindi language. He is not in a position to read and write English language. Learned counsel for the petitioner Mr. Bagai has thus assailed the legality and the validity of the detention order dated August 29,1991, inter alia, on the following grounds: that the petitioner made a representation to the Joint Secretary, Government of india. Ministry of Finance, Department of Revenue through the Superintendent, Central Jail, Tihar on September 6, 1991. He, through the said representation (Annexure 'E'), brought to the notice of the detaining authority that he was not acquainted with the English language. He knew only Hindi as he has studied up to Xth class through a Hindi medium School. Hence, he be supplied with all the documents relied upon and acted upon by the detaining authority in Hindi language. The said representation of the petitioner was rejected vide order dated September 20, 1991. The learned counsel has thus contended that since the petitioner did not know English language consequently the supply of documents in English language to the petitioner is no supply in the eyes of law. It thus can be presumed that the petitioner was not supplied with any document whatsoever. Hence, the impugned detention order is void ab initio and is liable to be set aside on this ground alone.
(8) There is absolutely nothing to show to the contrary. The petitioner has very categorically stated in his representation dated September 6, 1991 that he was forced to write by the authorities that he knew and understood English language whereas it was not so. It is now a well-settled principle of law that if the petitioner is not supplied with copies of all the documents which are relied upon and taken into consideration while passing the detention order, the detention order would be vitiated and would become illegal and invalid. I am supported in my above view by the observations of a Division Bench of this Court in Jasbir Singh v. Union of India, 1988(1) The Delhi Lawyer 203, "In P. Moidu Haji and another v. Union of India and others, reported in 1985 Cr. L. J. 1430, a Division Bench, of which one of us (Talwar J.) was a member, it was held that " It is well settled now that failure to furnish copies of documents to the detenu on which reliance has been placed by the detaining authority vitiates the detention. This Court in a number of cases has further held that the copies of documents which have been referred in the grounds of detention but not relied upon by the detaining authority have to be supplied to the detenu if he seeks copies of the same. On such a request being made by the detenu, it is not for the detaining authority to conclude that the copies of documents sought for were not relevant even for the defense of the detenu. It is for the detenu to consider as to how he can show his innocence from those documents....."
(9) It has next been urged for and on behalf of the petitioner was forced to make a statement under Section 108 of the Customs Act. The said statement was involuntary and the petitioner retracted the same vide his letter dated August 20,1991 (Annexure 'F'). The petitioner has in this connection placed on record (vide Annexure "G') a certificate issued from the Superintendent, Central Jail No. 3. which goes to show that the said letter was forwarded to the Acmm on August 20, 1991. The said retraction, according to the learned counsel for the petitioner was not placed before the detaining authority. It has been held time and again that all the materials for and against the detenu must be placed before the detaining authority at the time of the passing of the detention order and must be taken into consideration. A retracted statement, there is no gain-saying the fact, is a very important and material piece of document and as such, should have been placed before the detaining authority. Curiously enough the said retracted statement was never taken into consideration by the detaining authority. Instead the alleged voluntary statement dated August 8.1991 recorded under Section 108 of the Customs Act was taken into consideration. I feel the non-consideration of such an important and material document rendered absolutely illegal and invalid the impugned detention order. I am supported in my above view by the observations of their Lordships of the Supreme Court as reported in Ayya alias Ayub v. State of U.P. . It was observed...."What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non- application of mind if a piece of evidence which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality."
(10) The above view was reiterated earlier also by their Lordships of the Supreme Court as reported in Asha devi v. K. Shivraj and another, Air 1979 Sc 447,.... "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order." It was further observed in the said authority (vide para 7).... "Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal."
(11) The learned counsel for the petitioner has then led me through a very recent judgment dated February 23, 1990 in Criminal Writ Petition No-602 of 1989,. Mohd. Towfeek. Mohd. Mulaffar v. The Additional Secretary to Government of Tamil Nadu & Another, !t was observed.... " It is, therefore, clear for the above observations that the detaining authority ought to have been alive to the factum of retraction......If after being alive to this fact the detaining authority would still have reached the conclusion that it was voluntary that would have been a different matter with which this Court would not have interfered. But since the detaining authority had failed to apply its mind to the fact that the confessional statement of 17th September, 1989 was retracted on the very next day, the detention order stands vitiated."
(12) In view of the above I am of the view that the impugned detention order dated August 29, 1991 is illegal and invalid. In fact, it is void ab initio.
(13) The petitioner in view of the above, is entitled to succeed. The petition is allowed. The order dated August 29, 1991 passed by the detaining authority is hereby quashed. The petitioner be set at liberty at once in case he is not wanted or required to be detained in any other case.