Punjab-Haryana High Court
Joit Kumar Jain vs State Of Punjab And Others on 27 March, 2014
Criminal Writ Petition No. 248 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Writ Petition No. 248 of 2014
DATE OF DECISION : March 27, 2014
Joit Kumar Jain ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
1) Whether the judgment should be reported in the Digest ?. Yes
Present Mr. Gaurav Kathuria, Advocate for the petitioner.
Mr. Gaurav Dhir, DAG, Haryana.
Mr. R.S. Rai, Senior Advocate
with Ms. Ashima Mor, Advocate
and Mr. Sandeep Wadhawan, Advocate
for respondent no. 3.
Mr. Sunish Bindlish, Advocate
for the applicant-respondent no.4.
***
M.JEYAPAUL, J.
1. The petitioner Joit Kumar Jain who is a resident of Panchkula, Haryana and who was detained at Central Jail, Ambala pursuant to the impugned order of detention bearing No. PSA-1212/CR-13/SPL-3(A) dated 8.4.2013 passed against him under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) is seeking quashing of the said detention order for being Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 2 violative of his fundamental rights guaranteed under Part III of the Constitution of India. The main ground of challenge is non placement by Sponsoring Authority of some very vital documents before the Detaining Authority for her consideration which resulted in non application of mind on the vital documents and vitiation of subjective satisfaction and consequently rendered the detention order illegal, null and void. Neither the fact of non placement has been specifically denied by the respondents, nor any any records produced to show to the contrary.
2. The brief facts of the case are as follows:-
a) The investigation was commenced on 17.4.2012 by Director of Revenue intelligence (DRI) with seizure of huge quantity of memory card concealed in the consignments imported by the petitioner in the name of four different entities, namely, i) M/s Cenzer Industries; ii) M/s Rishab Industries; iii) M/s J&J Watch Electro Mfg. Private Ltd. and iv) M/s Sunray Exports Trading. The petitioner was arrested and released on bail on 18.4.2012. During the course of investigation, the seized goods were provisionally released by securing revenue.
b) The investigation revealed that the petitioner was a habitual offender, as there were some smuggling cases booked against him in the past. A proposal for the preventive detention of the petitioner was thus moved by the Sponsoring Authority, DRI. The investigation culminated in issuance of a show cause notice dated 24.9.2012 proposing demand of differential duty of `1,39,66,178/- and penal action against the petitioner under the provisions of Customs Act, 1962.
c) The application for settlement of case alleged in the said show cause notice was filed on 27.9.2012 before the Settlement Commission. Once the said application was admitted for settlement, the petitioner filed Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 3 W.P. (Crl.) No. 146/2012 and urged that any further consideration of the proposal of preventive detention shall be subject to obtaining recommendation from the Settlement Commission.
d) The above Writ Petition was disposed of by an order dated 12.10.2012 and the Hon'ble Supreme Court directed that before passing any order of preventive detention against the petitioner under the COFEPOSA Act, the comments of the Settlement Commission be obtained. The Hon'ble Supreme Court, thus, found some merit in the limited prayer of the petitioner.
e) Thereafter on 15.1.2013 the petitioner for seeking a favorable recommendation to the Detaining Authoritiy in terms of the said order dated 12.10.2012 and also for seeking immunities from fine, penalty and prosecution under the Act, tendered detailed written submissions during the course of hearing granted by Settlement Commission. Various precedents and statutory provisions were also relied upon to justify that no cause for preventive detention was made out, despite such allegations and it was sought to be justified as to why no detention order was warranted against him despite allegations of being repeated offender.
f) Moreover, the officer of Sponsoring Authority categorically submitted before the Settlement Commission that the department was not pressing for prosecution of the petitioner. The Settlement Commission recorded in para 2 of the Record of Proceedings of the hearing held on 15.1.2013, the specific request of the petitioner for consideration of these written submissions. The said Record of Proceedings also shows categorical submissions of the Sponsoring Authority in para 3.2 thereof that it was not pressing for prosecution, despite the allegation that repeated offences were committed by the petitioner. Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 4
g) The instant petition alleges non placement, non consideration and non advertance to these two documents namely Written Submissions and the Record of Proceedings of hearing dated 15.1.2013, although the impugned detention order was issued subsequently on 8.4.2013.
h) After issuance of the detention order on 8.4.2013, vide order dated 17.5.2013, the case was finally settled by the Settlement Commission and conditional immunities from fine, penalty and prosecution were granted to the petitioner. It is not in dispute that the said order of final settlement has been accepted by the department and is not under challenge.
i) The petitioner had earlier unsuccessfully challenged the same detention order before the Bombay High Court and the Hon'ble Supreme Court without surrendering to the same on various grounds. The concluding paragraphs of the judgment of Bombay High Court merits reproduction:-
"19. Therefore we see no merit in the challenge to the order of preventive detention at pre execution stage.
20. Accordingly we pass the following order:-
i) Petition is rejected. Rule is discharged.
ii) However, we may observe that the findings which we have recorded in the judgment are in the context of examining the challenge to the order of detention at pre execution stage.
After the execution of the order, it is obvious that the respective detenu will be entitled to challenge the said order on all permissible grounds and all contentions in that behalf are expressly kept open."
With dismissal of SLP there against the judgment of Bombay High Court Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 5 had become final so far as the challenge at pre execution stage was concerned. However, all grounds available for the detenu were expressly kept open for consideration after the execution of the order.
j) The petitioner had thereafter taken a rental residential premises in Panchkula, Haryana which according to him has proximity with his factory at Baddi in Himachal Pardesh (para 5 of the Grounds of Detention specifically refers to this factory situated at Baddi, Himachal Pradesh).
k) With an apprehension that the impugned detention order would be served upon him at this residential premises in Panchkula, falling within the territorial jurisdiction of this court, he preferred the instant petition, although with the aforesaid main grounds of challenge which were not urged in the earlier round of litigation, but without surrendering to the detention order.
3. Vide order dated 17.2.2014 I had outrightly rejected the prayer of the petitioner seeking interference with the impugned detention order without surrendering to it.
4. However, considering the judgment of Constitution Bench of the Hon'ble Supreme Court in A.K. Roy versus Union of India and another (1982)1 SCC 271, it was found that there was no impediment in directing detention of the petitioner near a place where he claimed to be residing. In A.K. Roy, the Constitution Bench held as follows:-
"74. ... ... Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 6 to no greater extent and in no greater measure that is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. ..........Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention."
5. In view of the above dictum of the Hon'ble Constitution Bench read with Section 4 of the COFEPOSA Act, 1974 which provides that the detention order can be executed anywhere in India, coupled with the fact that no prejudice was being caused to the preventive purpose of detention order, vide the said order dated 17.2.2014 I also directed the petitioner to first surrender on 3.3.2014 before the police authorities in Panchkula, where he himself claimed to be residing. In the interest of justice, I directed the listing of the petition on 5.3.2014 for consideration on post execution basis, subject to the petitioner so surrendering to the detention order.
6. Accordingly, on being so compelled by this court, the petitioner surrendered to the impugned detention order and the representatives of the respondent detaining authority promptly served upon the petitioner the impugned detention order along with the grounds of detention and the Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 7 relied upon documents in the State of Haryana. The petitioner was thus larged at Central Jail, Ambala within the jurisdiction of this court. The discretion exercised by this court vide order dated 17.2.2014 for compelling the petitioner to surrender to the detention order in the State of Haryana by rejecting his prayer for consideration of the petition without surrendering to the detention order was not assailed even by the respondents.
7. On 5.3.2014 the petitioner vide CRM-W-69 of 2014 inter-alia placed on record the detention order, the grounds of detention and the list of documents submitted before the Detaining Authority, all of which were served upon him while taking him in preventive custody in Haryana. He also placed on record the certificate dated 3.3.2014 issued by the Deputy Commissioner of Police, Panchkula, evidencing his surrender to the detention order in Panchkula and further detention in Central Jail in Ambala. In this application a communication issued by the Home Department, State of Maharashtra, was also placed on record to show that communication of rejection of his pre detention representation was received by post at the petitioner's residence in Panchkula.
8. Since the petitioner had shown bona-fides by surrendering to custody as directed, his petition was taken up for consideration as a post execution petition as already indicated vide order dated 17.2.2014. The petitioner could have chosen to file a fresh petition from Central Jail, Ambala in this court after service of the detention order and grounds of detention in Haryana. However, it was earlier argued that if the detention order was executed, the instant petition might be treated as post execution petition and considered accordingly. In Narsingh Das Tapadia versus Goverdhan Das Patani 2000 (7) SCC 183, the Hon'ble Supreme Court Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 8 found that a complaint in the court, if found to be premature, can await maturity and need not to be dismissed merely for its early presentation. It was observed therein as follows:-
"Mere presentation of the complaint in the court cannot be held to mean that its congnizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed."
Applying the same principle, even if I outrightly rejected the challenge at pre execution stage and directed the petitioner to surrender, the petition was required to be considered after surrender of the petitioner as a post detention petition. No right was conferred upon the Detaining Authority to absolve herself from the obligation to satisfy this Court regarding the validity of detention order issued by her.
9. The learned Senior counsel appearing for the petitioner demonstrated prima facie case on various grounds mainly the non placement, non consideration and non advertance to the two vital documents namely detailed written submissions dated 15.1.2013 filed by the petitioner during the course of personal hearing before the Settlement Commission and the record of personal hearing held on 15.1.2013 reflecting the contentions of both sides that although there were allegations of the petitioner being a repeated offender, the Sponsoring Authority was not pressing for the prosecution of the petitioner. He also pointed out that the petitioner had paid the entire dues relating to the case which led to the Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 9 issuance of detention order and the case was finally settled despite issuance of the detention order with grant of immunity from prosecution. It was also pointed out that this immunity from prosecution was liable to be withdrawn if obtained by misrepresentation and that an indemnity bond was also accepted by the Settlement Commission to ensure that the petitioner would not indulge in any prejudicial activity after settlement lest the immunities granted would be liable to be withdrawn. He thus pleaded that effective preventive measures were taken in final settlement of the case.
10. Although notice was served upon the Detaining Authority and it had deputed its representative for the purpose of service of detention order and grounds upon the petitioner in State of Haryana, however, it did not initially show any interest to even enter appearance and file counter affidavit to oppose the consideration of the petition on post execution basis. Though such supine indifference and casualness are not expected in the matters of preventive detention, however, in the interest of justice, I granted one more opportunity to the Detaining Authority to appear and file a counter affidavit by next date of hearing. Mr. Sunish Bindish, Advocate entered appearance for the Sponsoring Authority which was not originally a party respondent and on his request Sponsoring Authority was permitted to file impleadment application as well as written reply to the petition.
11. After carefully perusing the grounds of detention and the list of documents and after hearing the arguments it was seen that (i) there was no reference in the grounds and in the said list to the two vital documents which were claimed by the petitioner as not placed before the Detaining Authority and consequently not considered by the Detaining Authority (ii) there was no averment in the grounds regarding the vital aspect of Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 10 possibility of prosecution and recourse to ordinary punitive law of the land and (iii) it was not in dispute that the case was settled on payment of entire dues and immunities from prosecution was granted. Therefore, after considering excellent prima facie merits in the grounds of challenge raised in by the petitioner vide order dated 5.3.2014, interim bail was granted subject to strict conditions in the light of the following precedents:-
a) Tahira Begum (1982)3 SCC 374
b) Alka Subhash Gadia 1992 Supp. (1) SCC 496.
c) Bharti Arora (order dated 29.8.2013 in WP (Crl.) 1221 of 2013 by the Division Bench of Delhi High Court.
And the matter was posted for final disposal on 12.3.2014 with a direction to the petitioner to remain present without fail in Court on the said day at 10.00 A.M.
12. On 12.3.2014 the petitioner personally appeared as directed by this Court. The learned Senior counsel appearing for the petitioner fairly agreed to implead the DRI as respondent no. 4 and the application for impleadment was allowed. The Detaining Authority as well the Sponsoring Authority filed their counter affidavits opposing the grant of any relief to the petitioner.
13. Although prima-facie opinion expressed by this Court while granting bail was also available to the respondents, neither the fact of non placement was specifically denied by the respondents in their affidavits nor was any record produced to show to the contrary. Neither the learned Senior counsel appearing for the Detaining Authority nor the learned counsel appearing for the Sponsoring Authority on being specifically asked Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 11 could make a positive statement that the two vital documents referred to above were actually placed by the Sponsoring Authority before the Detaining Authority and consequently considered by her before issuance of the detention order.
14. On behalf of the respondents it was argued that (i) merits of the detention order were earlier considered by the Bombay High Court and the petition was dismissed. Even SLP thereagainst was dismissed. It was not open to the petitioner to raise any of the grounds taken before this court for seeking quashing of the detention order. By relying upon Ram Kumar versus District Magistrate, Delhi 1966 Crl.LJ 153 (P&H) (F.B), the learned counsel for the Sponsoring Authority submitted that it has not been contended in the petition that there were any pressing circumstances due to which the fresh grounds raised in the criminal petition, if any, could not be urged during the course of the earlier proceedings; (ii) this court lacks territorial jurisdiction to deal with the prayer for quashing the order of detention issued in State of Maharashtra under Article 226 (2) of the Constitution of India, as no part of cause of action had arisen within the jurisdiction of this court; (iii) These two documents namely written submissions dated 15.1.2013 and the record of personal hearing made on 15.1.2013 before Settlement Commission were not relevant because comments of Settlement Commission and the admission order were placed before the Detaining Authority. The learned counsel appearing for the Sponsoring Authority relied upon Vinod K. Chawla versus Union of India and others AIR 2006 SC 2864, to suggest that law does not require that every document or material in possession of the Sponsoring Authority must necessarily be placed before the Detaining Authority and in every case where such document is not placed by the Sponsoring Authority Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 12 before the Detaining Authority, the formation of opinion and the subjective satisfaction of the Detaining Authority would not get vitiated. (iv) The petitioner was earlier arrested on 19.3.2013 for his involvement in seizure of mobile phones. The petitioner was also involved in two other cases booked against M/s Dharamendra Enterprises and M/s Amry Trading Company. He was thus a habitual offender. Each of these cases can be considered as separate ground for issuance of detention order and thus neither the fact of not pressing for prosecution, nor the non placement of the said two documents could effect the validity of detention order.
15. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that in view of the above stand taken by the respondents without even disputing the fact of non placement and non consideration of the said documents, the following issues are to be determined:-
(i) Whether there exists any bar in considering the grounds of challenge urged by the petitioner after execution of the detention order, in the light of dismissal of his earlier petition by Bombay High Court at pre detention stage.
(ii) Whether no part of cause of action has arisen in the jurisdiction of this court to consider the challenge to the impugned detention order.
(iii) Whether the respondents are right in claiming that the two documents namely written submissions dated 15.1.2013 and the record of personal hearing made on 15.1.2013 before Settlement Commission were such irrelevant documents which had no bearing on the issue of preventive detention and non placement and non consideration there of was Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 13 inconsequential.
(iv) Whether respondents are correct in claiming that ascertaining the factual position regarding recourse to ordinary punitive law of land is wholly irrelevant having no bearing whatsoever on the issue of preventive detention.
(v) Whether requisite care had been taken by the Detaining and Sponsoring Authorities in the matter of issuance of the impugned preventive detention order to curtail the liberty of the petitioner without trial.
(vi) Whether the allegation of being repeated offender disentitles the petitioner to raise the contentions of non placement of vital documents or of non consideration of the aspect of prosecution in the matter.
16. I do not find merit in the stand taken by the respondentson any of the above issues. The Bombay High Court had not only expressly kept open all the issues to be raised and decided on merits after execution of the detention order, but had also categorically observed that the findings which they had recorded in the said judgment were in the context of examining the challenge to the detention order at pre execution stage. Since the detention order stands executed as of now, there cannot therefore exist any bar in considering the merits of the grounds of challenge urged by the petitioner even if some were earlier raised in unsuccessful pre detention challenge. The consideration of the grounds urged is only after execution of the detention order. Even otherwise the main ground of non-placement and non-consideration of the said two documents was not raised by the petitioner before the Bombay High Court and thus, there was no reference to these two documents in the entire Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 14 judgment. The respondents fail to support their contention with any binding precedent where the Courts have refused to consider the challenge of a detenu in a Habeas Corpus Petition after execution of the detention order, merely because some of the grounds were earlier raised without success in any pre execution challenge. The decision of Full Bench in Ram Kumar's case (supra) cited by the learned counsel appearing for the Sponsoring Authority is also not relevant in the present factual scenario. This Court cannot permit the authorities to take shelter of such technical pleas in the matter of a Writ of Habeas Corpus in a preventive detention matter.
17. In Ummu Sabeena versus State of Kerala and others (2011)10 SCC 781, the Hon'ble Supreme Court held that in dealing with Writs of Habeas Corpus, mere technical objections raised by the Detaining Authority concerning pleadings of the detenu cannot be entertained. It observed thus:-
"13. ... ... But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the Habeas Corpus petition is concerned, we are constrained to observe that in dealing with writs of Habeas Corpus, such technical objections cannot be entertained by this court."
18. On the second issue concerning territorial jurisdiction, it is seen that the petitioner has a residence in the State of Haryana. The Detaining Authority had deputed its representative for the purpose of service of detention order and grounds upon the petitioner in State of Haryana and thereupon the detention order and grounds were served upon him in the State of Haryana, albeit after the orders of this Court. The Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 15 petitioner was detainied in preventive detention custody at Central Jail, Ambala in Haryana. He has also received the rejection of his pre detention representation in Haryana. Therefore, merely because the respondents have doubts on the bona-fides of the petitioner in taking a residential premises within the jurisdiction of this court although it has proximity to his factory at Baddi, it cannot be held that no part of cause of action has arisen within the jurisdiction of this Court to consider the challenge to the detention order even after its execution in Haryana. No precedent was shown by the respondents where jurisdiction was held as lacking despite such part of cause of action that has arisen within the jurisdiction of the High Court. There are catena of decisions rendered by various High Courts substantiating that these facts constitute part of cause of action that has arisen in the territorial jurisdiction of this Court.
In Umed Mal Versus Union of India and others 1998 CriLJ 3465, the Full Bench of the Rajasthan High Court held as follows:-
"Applying the above tests, we cannot escape the conclusion that factual detention of a person at a particular place would supply cause of action for challenging the detention. ......If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have to reject the narrow construction put on the concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Article 226(2) of the Constitution.
In Ramchand Santumal Bhatia versus Tarun Roy and others 1988 CriLJ 641, the Division Bench of the Bombay High Court held Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 16 as follows:-
"......To sum up, Ulhasnagar being the place where the detenu was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this court....."
In Nazima Begum versus Joint Secretary, Department of Revenue, Ministry of Finance, Govt. of India, New Delhi and another 1993 CRI LJ, the Division Bench of the Madras High Court held as follows:-
"...In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got jurisdiction. Even the order of rejection was served on the detenu at Calcutta and only a copy of the rejection order was served on by the petitioner (wife of the detenu) at Madras...."
In B. Shareefa Ummer versus Joint Secretary to the Govt. of India, 1998 CriLJ 185, the Division Bench of the Kerala High Court held as follows:-
".....So far as the present case is concerned, the order of detention was served on the detenue in Kerala. He wa arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts which form part of the cause of action. Hence, we hold that this court has got jurisdiction and hence, the Original Petition is maintainable in this court".
In Kamala Sarkar versus State of Bihar and others 2002 Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 17 CriLJ 1414, the Division Bench of the Calcutta High Court observed as follows:-
"In P. Subramani v. State of Karnataka reported in 1990 CriLJ 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating-'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petition is concerned and, therefore, a considerable part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction upon this court.
Yer again in Smt. Manjulaben v. C.T.A. Pillay reported in 1976 CriLJ 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this court." So taking into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to deprivation of liberty of the detenu having taken place within the territorial jurisdiction of the said Court, a part of cause of action was Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 18 held to have arisen within the said jurisdiction.
Having regard to the fact that in the instant case the detenu is still detained ini Siliguri Special Jail which is within the jurisdiction of this Court and in the event the said detention is held to be illegal, a writ of habeas corpus may have to be issued; pursuant whereto, the detenue may be released, we are of the opinion, that a part of the cause of action has arisen within the jurisdiction of this court and as such the writ application is maintainable."
The Division Bench of Andhra Pradesh High Court in Smt. Reena Ranka versus Union of India 1991 CRI LJ 3195 has held as follows:-
"....and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of valuable right under Article 21 of the Constitution of India. This court has, therefore, undoubted jurisdiction to entertain the Writ Petition as part of cause of action arose at Hyderabad."
This Court in D.N. Anand versus Union of India, Ministry of Finance 1993 (2) R.C.R. (Criminal) 104 considered the petition challenging the order of detention issued in Delhi and held that it was maintainable as one of the residential addressees of the detenu, although disputed by the Detaining Authority, was within the jurisdiction of this court. It has observed as follows:-
"....The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 19 petitioner within the jurisdiction of this court...."
This Court in S.P. Goyal versus Union of India 2003 (1) R.C.R. (Criminal) 83 after considering the decision in D.N. Anand's case held as follows:-
".......The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition."
In view of the above consistent views taken by various High Courts including this Court, I find no merit in the objection of the respondents. The learned Senior counsel appearing for the Detaining Authority relied upon an unreported decision dated 11.10.2012 of the Allahabad High Court in CRM-WP-No. 14978 of 2012 dated 11.10.2012 wherein the said High Court refused to entertain a petition despite there being residence of the petitioner in its jurisdiction. It is seen from the said judgment that firstly the service of detention order was not effected in that case within the jurisdiction of the High Court and secondly, it was a second petition filed on the same facts against the bar under Rule 7 of the Allahabad High Court Rules, 1952. Thus the said judgment is not applicable in the facts of the instant case. Therefore, the objection regarding territorial jurisdiction of this court is rejected.
19. Moreover, when this court out rightly rejected the prayer to set aside the detention order at pre execution stage and directed the petitioner Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 20 to surrender, the petitioner could have preferred a fresh petition or could have sought consideration of the same petition but after his surrender. Since the petitioner had chosen the later option, this Court was obliged to consider the merits of the petition as a post detention petition but only after surrender of the petitioner. If the petition had not matured initially, this court can await its maturity for consideration thereof. No right was conferred upon the Detaining Authority to absolve herself from the obligation to satisfy this court regarding the validity of detention order issued by her. This principle also flows out from the decision of the Hon'ble Supreme Court in Narsingh Dass Tapadia's case (supra).
20. I do not find any merit in the contention of the respondents that the two documents namely written submissions dated 15.1.2013 and the record of personal hearing dated 15.1.2013 before the Settlement Commission were irrelevant documents having no bearing on the issue of preventive detention.
21. The learned Senior Counsel appearing for the petitioner has interalia placed specific reliance for the purpose of showing relevance on the following vital averments made in the written submissions dated 15.1.2013:-
"8. ... ... In the present case, a clear case for recommending non issuance of the order of preventive detention of the applicant is made out for the following reasons:-
v) Most significantly, perhaps the revenue, in its report filed before this Hon'ble Commission in the present case, has not opposed the prayer, of the applicant, for immunity, from prosecution and higher fine and penalty are sought to be imposed. Thus it is evident that in view of the approach of the applicant for settlement of the case at once, the Revenue Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 21 is not proposing recourse to ordinary course of law i.e. Criminal Prosecution, despite allegation of his being repeated offender. In Rekha, (2011) 5 SCC 244 and Munagala Yadamma, (2012) 2 SCC 386, the Hon'ble Supreme Court has held that preventive detention is not a substitute for prosecution, and further observed to the effect that where prosecution is possible, there is no justification to resort to preventive detention. In the present case, the fact that the Revenue did not oppose the applicant's prayer for immunity from prosecution, goes to indicate that the Revenue has no intention to seek criminal prosecution of the applicant.
That being so, applying the principles laid down in Rekha (supra) and Munagala Yadamma (supra) any resort or recourse to preventive detention would be entirely unjustified. vi) it may also be relevant to point out that in Subhash Popoatlal Dave, (2012) 7 SCC 533, resort to preventive detention instead of taking resort to ordinary law of the land was considered as a good ground to challenge detention order even at the pre-execution stage.
9. For the above reasons, it is respectfully prayed that this Hon'ble Commission may please settle the entire case and may please grant immunities from fine and penalty and conditional immunities from prosecution under the Act. Further, it may recommend to the detaining authority that now there isn't any necessity for slapping an order of preventive detention on the applicant in the present facts and circumstances in the instant case."
The said document inter-alia shows that despite allegations of being repeated offender, the Sponsoring Authority in its report filed before the Settlement Commission has not opposed the prayer of the petitioner for grant of immunity from prosecution. The reason given by the petitioner so as to seek recommendation against issuance of detention order cannot be Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 22 considered as irrelevant. The relevancy of the above document, therefore, is unquestionable.
22. It is seen that though this stand was taken by the petitioner before the Settlement Commission, the officer of Sponsoring Authority candidly informed the Settlement Commission that the department was not pressing for prosecution, which fact is recorded in the record of personal hearing dated 15.1.2013. It was recorded by the Settlement Commission on 15.1.2013 as follows:-
"The learned Advocate further stated that the applicant has made full and true disclosure of his additional duty liability, therefore a lenient view may be taken while imposing the fine and penalty on the applicant as well as on the co-applicants. He requested for grant of immunity from prosecution to the applicant as well as to the co-applicants. He also requested that the written submissions filed by him during the course of hearing may be considered by the Hon'ble Bench before finally passing the settlement order.
3.1 Confirming the correctness of the duty demand in the Show Cause Notice and its acceptance by the applicant, the Representative submitted that same should be adjusted from the deposit of `1.50 Crores made by the applicant.
3.2 The ld. Representative of the Respondent Commissioner reiterated the submissions contained in the report of the ADG, DRI and submitted that looking to the repeated offences committed by the applicant, the stringent redemption fine in lieu of confiscation and penalty may be imposed on the applicant as well as the co-applicants. However, the ld. Representative submitted that he is not pressing for prosecution.
4. A copy of these proceedings may be provided to both the Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 23 parties for their record."
Therefore, the record of proceedings before the settlement Commission was also very relevant for the purpose of considering the question of issuance of detention order.
23. I find sufficient merit in the ground of non placement, non consideration and non advertance to these two vital documents. Had the record of personal hearing been placed before the Detaining Authority, she could have asked for the written submissions which were referred therein. However, neither the record of proceedings nor the written submissions were placed before the Detaining Authority. There is merit in the submission of the learned Senior Counsel for the petitioner that since these vital documents do not find any reference in the entire grounds of detention or in the list of documents, it is apparent that the Detaining Authority was not alive to the contents of these documents containing relevant facts and submissions for the purpose of arriving at subjective satisfaction for issuance of any order of preventive detention. The Hon'ble Supreme Court in W.P. (Crl.) No. 602 of 1989 Mohd. Towfeek Mulaffar versus Additional Secretary to Government of Tamil Nadu dated 23.2.1990 was pleased to quash the order of detention on the point that the grounds of detention did not disclose that the Detaining Authority was alive to the relevant fact situation in that case recording a retraction of statement which if considered might have influenced the mind of Detaining Authority one way or the other. Similarly in the instant case the respondents could not show from the grounds of detention any reference to any of these two vital documents.
24. Although the grounds of detention show that the petitioner was a repeated offender, I find that the prosecution of the petitioner was not Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 24 pressed before settlement commission and the Detaining Authority was not alive of this vital fact having a bearing on requisite subjective satisfaction. Apart from the above, in support of this ground the learned Senior counsel for the petitioner has rightly relied upon the following judgments:-
(i)In V.C. Mohan Vs. Union of India and ors. (2002) 3 SCC 451 the Hon'ble Supreme Court recognised that the proceedings before the settlement commission would have a definite impact in the matter of preventive detention having a bearing on the issue and non placement of record concerning thereto was held as serious lapse on the part of Sponsoring Authority. It was observed therein as follows:-
"We would like to record, however, another more important feature at this juncture :On an applicant before the Settlement Commission under Section 127-B of the Customs Act filed by the detenu on 8.2.2001 the Settlement Commission on 15.2.2001 after hearing the applicants and the Department, was pleased to admit the applications of the detenu and passed an order directing the detenu to make payment of additional duty of Rs. 11,65,803/- within 30 days from the date of receipt of the order. Apart therefrom, the Commission further observed that the Commission shall have the exclusive jurisdiction on the case of the detenue, in terms of S. 127-F(2) of the Customs Act, 1962 to exercise the powers and perform the functions of any officer of customs, to the exclusion of all other officers of customs and it is on this score that Mr. Mani contended and if we may so so, rightly, that both the application and the order of the Settlement Commission, Southern Bench, Chennai dated 15.2.2001 ought to have been placed before the Detaining Authority-The records however depict otherwise: Neither the applicant nor the order passed thereon did see the light of the day before the Detaining Authority. There is no manner of doubt Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 25 that the documents mentioned above are not only important but of definite impact in the matter of detention and having a bearing on to the issue. Under the circumstances, there thus stands a bounden obligation to place the same before the Detaining Authority for fair play and justice. The Sponsoring Authority conveniently kept it to itself a very relevant mater4ial which could have titled the scale before the Detaining Authority. Needless to record that the sponsoring authority was able to place the letter from the Special Public Prosecutor regarding the condition of bail relaxation of the detenue dated 28.2.2001, but failed to place the orders of the Settlement Commission dated 8.2.2001 and 15.2.2001. Is it a lapse uninteded or a deliberate failure? The learned senior advocate appearing for the respondents however hadn't had any answer to the same. The factum of non-placement of relevant documents, in our view, has had a serious effect and definite inroad to petitioner's liberty without application of mind. Non- placement of the order of payment of additional duty of Rs. 11,56,803/- within 30 days from the receipt of the order of the Commission has not only transgressed the right of the petitioner but in our view speaks a volume about the conduct of the officials rendering the proceeding before the Detaining Authority vitiated and thus turned out to be illegal."
(ii) In Ayya alias Ayyub Vs. State of U.P. (1989) 1 SCC 374 it has been held as follows:-
"27. It is equally unnecessary to decide whether the telegram dispatched by Mirazuddin was at 12.30 midnight on February 18,1988 or as suggested by the respondents at 12.30 afternoon on February 19, 1988. It is extremely probable that it was sent not at 12.30 midnight as claimed by the petitioner, only at 12.30 after noon on February 19, 1988 as suggested by Shri Yogeshwa Prasad. But it cannot be disputed that such a Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 26 telegram was sent. This telegram asserts, for whatever it was worth, that petitioner was taken into custody at 8.00 P.M. On February 18, 1988. The contention of Shri Garg is that the non-consideration of this telegram, which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention of non-application of mind. The detaining authority in its affidavit says:-
"Deponent is not in a position to say about the facts of the telegram. It might have been given in pesh-bandi."
28. 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 non binding had not been considered 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.
(iii) In Union of India Vs. Ranu Bhandari (2008) 17 SCC 348 it has been held as followed by the Hon'ble Supreme Court:-
"32. We are inclined to agree with the submissions made on behalf of the respondent that, notwithstanding the nature of the allegations made, he was entitled to the assurance that at the time when the detention order was passed all the materials, both for and against him, had been placed for the consideration of the detaining authority and had been considered by it before the detention order was passed, having particular Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 27 regard to the orders passed by the Settlement Commission appointed under the provisions of the Customs Act, 1962, which absolved the detenu from all criminal prosecution.
33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention."
25. I find that all these precedents clearly lays down that it is essential to place on record relevant documents before the Detaining Authority for being considered before arriving at subjective satisfaction for issuance of detention order or else the detention order would be vitiated. There is no doubt that these two documents originated from the Settlement Commission are very much vital. In any event, any advertence should have been reflected from the grounds of detention. On a perusal of the grounds of detention, I noticed that it is possible to presume that each of these two documents would have contributed to the final subjective satisfaction one way or the other. What would have been the position, if the Detaining Authority was apprised of each of these two documents is not for me to make retrospective judgment at this distance of time. The above vital documents which have a direct bearing on the subjective satisfaction of the Detaining Authority in issuing the detention order do not find any mention in the grounds of detention or in the list of documents which were placed before the Detaining Authority. I, therefore, find no bones in holding that the said vital documents were not placed before the Detaining Authority for her consideration before arriving at subjective satisfaction. Thus reliance of Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 28 the respondents on the decision of the Hon'ble Supreme Court in Vinod K. Chawla (supra) is misplaced, as in that case the document concerned was held to have no bearing on the formation of subjective satisfaction. Since material and vital documents which could influence the mind of the Detaining Authority one way or the other on the question whether or not to issue the detention order were not placed before the Detaining Authority and were not considered by it, the subjective satisfaction was vitiated rendering the detention order illegal..
26. In the instant case, the Detaining Authority has miserably failed to advert to in the grounds of detention the factual position regarding recourse to ordinary punitive law of the land. She was not aware that the Sponsoring Authority was not even pressing for the prosecution of the petitioner despite he being a repeated offender. The Detaining Authority is also obliged to enquire about the status of the prosecution proceedings, if any, and, if there is none, about the stand of the Sponsoring Authority concerning initiation of prosecution. Heavy reliance was placed by the respondents on para 54 of the grounds of detention which reads as under:-
"I have also considered the comments of Settlement Commission as per the direction given by Hon'ble Supreme Court of India in Criminal Writ Petition NO. 146/2012. The Settlement Commission deals with the settlement of cases relating to levy, assessment and collection of customs/central excise duty and service tax. The COFEPOSA Act, 1974 deals with the law relating to preventive detention. Such preventive detention action is independent of any adjudication/prosecution proceedings initiated under the relevant provisions of the Customs Act, 1962."
I am not impressed by this argument of the respondents. I find that the said Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 29 averment in the grounds of detention gives erroneous picture as if the prosecution proceedings are initiated under the relevant provisions of the Customs Act, 1962 and preventive action is independent of that. No prosecution proceedings, however, has been initiated. In the instant case various offences allegedly committed by the petitioner are referred, however, the requisite satisfaction on this vital aspect concerning his prosecution in each of these cases is not reflected from the grounds of detention. The Detaining Authority was thus not alive to the actual fact as to whether prosecution proceedings were initiated or were likely to be initiated against the petitioner in each offence alleged against him. Reliance placed by the petitioner on Soma Nath Kundu versus Union of India and others 1987 (32) E.L.T. 657 (Delhi) and Sri Ram Goel versus Union of India, 1984 Criminal Law Journal 1048, is therefore apt and the detention order is vitiated on the vice of non-application of mind on this very vital aspect. In Ashutosh Lahiry versus State of Delhi AIR 1953 Supreme Court 451 (six judges Bench), it was observed thus:-
"..........there could be not better proof of malafides on the part of the executive authorities than a use of extraordinary provisions contained in the Act for purposes for which ordinary law is quite sufficient....."
Therefore, it was necessary for the Detaining Authority to record its satisfaction regarding the actual status of proceedings if any under ordinary criminal law and then to arrive at a satisfaction as to why the same was not sufficient before resorting to preventive detention.
27. The Sponsoring Authority as well as the Detaining Authority had failed to take requisite care that was required to sustain the preventive detention order to curtail liberty of the petitioner without trial. I am unable to Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 30 ignore that in the instant case despite allegations of being repeated offender, there was no opposition by the Sponsoring Authority to the prayer for grant of immunity from prosecution either before issuance of the detention order or after issuance thereof. Non placement and non consideration of the vital documents which could have revealed this vital aspect shows absolute casualness and vitiate the impugned detention order. It is settled law that the Settlement Authority cannot withhold vital documents from the Detaining Authority.
28. Moreover, the indemnity bond was also submitted by the petitioner before settlement commission whereby he undertook not to indulge in prejudicial smuggling activities but to maintain good behaviour and abide by the Customs Act, 1962 and allied acts, otherwise the final settlement would be void and the immunity granted therein, would be withdrawn. The entire dues stand paid and immunity has been granted in the case. The past activities would not constitute live-link, more so when knowledge of those past activities did not deter the Sponsoring Authority from not pressing for the prosecution even in the seizure case which led to issuance of the impugned detention. In fact in the matter of Pawan Bhartiya versus Union of India (2003) 11 SCC 479, the Hon'ble Supreme Court recognized that even the Central Government had taken decision to revoke the detention order against others in that case considering the factum of payment of entire dues as sufficient deterrent and preventive measures.
29. It was also urged on behalf of the Detaining Authority by relying upon Sunil Fulchand Shah versus Union of India (2008) 3 SCC 409 and State of Bihar versus Rambalak Singh, AIR (1966) S.C. 1441 that High Court cannot grant bail in the matter of preventive detention. Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 31 However, a perusal of both the judgments shows a consistent view that the High Court has ample power to grant temporarily release of the detenu on bail in a preventive detention matter, which however, can be exercised in exceptional circumstances.
30. While setting aside the impugned detention order, I find it necessary to quote the following extract from the judgment of Constitution Bench in Kamlesh Kumar Ishwardas Patel versus Union of India 1995 (4) SCC 51:-
"At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti- national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interferences with the orders of detention made against them. We are not unmindful of the harmful consequencies of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards, The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court. "Their rigour cannot be modulated on the basis of the nature of the Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document Criminal Writ Petition No. 248 of 2014 32 activities of a particular person. We would, in the context, reiterate what was said earlier by this Court while rejecting a similar submission.
"May be that the detenue is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues.
50. We have, therefore, no hesitation in rejecting this contention."
31. In the result, the prayer for quashing of the impugned detention order No. PSA-1212/CR-13/SPL-3(A) dated 8.4.2013 executed upon the petitioner Joit Kumar Jain is allowed and the said impugned detention order against the petitioner is quashed and set aside. The petitioner is thus set at liberty and released forthwith from the custody of this court.
(M. JEYAPAUL) JUDGE March 27, 2014 p.singh Singh Parvinder 2014.03.28 10:36 I attest to the accuracy and integrity of this document