Delhi High Court
Issac Babu vs Union Of India And Another on 18 October, 1989
Equivalent citations: 1991CRILJ152, 1980(18)DRJ177
JUDGMENT Santosh Duggal, J.
1. The petitioner in this writ petition, filed under Art. 226 of the Constitution of India, seeking issuance of a writ of habeas corpus or any other writ, order or direction, was detained on 23rd May, 1988, in execution of detention order passed on 7th October 1987 under the provisions of Sections 3(i)(iii) and 3(i)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act'), on the allegation that he had assisted one T. A. Sirajudeen @ Siraj in coming into possession of 60 gold biscuits, transporting and selling part of the said gold biscuits, for which the detenu had received remuneration from said Sirajudeen @ Siraj and having been associated with the said Sirajudeen @ Siraj in the matter of transportation, carriage and disposal of the smuggled gold.
2. The brief facts in so far as these are relevant to the disposal of the present writ petition and as gathered from the grounds of detention are that a search of the house of T. A. Sirajudeen @ Siraj was carried on 30th November, 1986 by Superintendent, Central Excise and 11 gold biscuits were recovered buried in the floor of the house which was dug up at the instance of said Sirajudeen @ Siraj and gold of foreign markings was taken out. The statement given by him under Section 108 of the Customs Act revealed that the petitioner was his friend, and accompanied him from Delhi to Bombay for sale of the smuggled gold where both of them had stayed at Galaxy Lodge near Santa Cruz, and that they had been able to dispose of some of the gold biscuits carried by them and that in all they had taken 60 gold biscuits to Bombay and that the 11 recovered from his house were the remaining ones. Sirajudeen @ Siraj also revealed that the present petitioner Issac Babu was a friend of his brother T. A. Haneefa and got acquainted with him at Delhi and all three of them had taken out the 60 gold biscuits concealed in a cooking range brought by one Abdul Rahiman and that they had kept concealed those gold biscuits at a guest house at Nizamuddin, New Delhi and thereafter had gone to Bombay. The search on the premises, where Sirajudeen @ Siraj had been staying, was also carried out and amongst others, a visiting card of Hotel Galaxy, Santacruz (East) Bombay was recovered as also a rough road sketch containing detailed directions to reach Mullakkal Veedu of Issac, namely, the house of the present petitioner.
3. Pursuant to the statement of Sirajudeen @ Siraj search of the house of the present petitioner was carried out on 4th December 1986 when Indian currency of Rs. 43,500/- was recovered from the briefcase found in the house and also a note book containing certain accounts and visiting card of Hotel Galaxy, Bombay with number 301 noted on it. In the statement given by the petitioner under Section 108 of the Customs Act, he revealed that this money recovered from his house was balance of the amount of Rs. 75,000/- which had been given to him by T. A. Sirajudeen, as part of the sale proceeds of the gold biscuits, and that the account noted in the note book related to the amounts spent by him out of Rs. 75,000/-.
4. The detention order, subject matter of the present writ petition, was passed in face of the above facts, with a view to prevent the petitioner from indulging in transporting or concealing or keeping smuggled gold and also dealing with the same, in any other manner.
5. Mr. S. R. Setia, Advocate appearing for the petitioner, urged primarily three pleas in an attempt to show that the detention order was not validly passed and that in any case the continued detention stands vitiated because of the delay in execution of the detention order, inasmuch as it was served on the petitioner after period of 7 1/2 months.
6. Mr. Setia has placed utmost emphasis on the last mentioned plea because of the fact that the detention in case of a co-detent was quashed by the Supreme Court the reason of delay in execution of the detention order, which case is reported as Judgment Today 1989 (3) SC 444 : (1990 Cri LJ 578), (T. A. Abdul Rahman v. State of Kerala and others). Mr. Setia argued that the present case is still worse so far as the respondents are concerned because here the delay involved is 7 1/2 months.
7. I, however, find that this ground can be of no avail to the petitioner because the real question is not as to delay per se but as to whether the same stands explained in a given case or not. In the case of co-detent Abdul Rahman (supra), the Supreme Court held that in that case the delay had not been satisfactorily explained and it was only on that account that the detention was held to be vitiated. That case itself takes note of the fact, on the basis of certain decided cases, that what is required is that the delay must be explained satisfactorily by the detaining authority. (Ref. Hemlata Kantilal Shah v. State of Maharashtra, , and a very recent decision of the Supreme Court in the case of Yogendra Murari v. State of U.P. and others, , where the court had reiterated the view consistently taken earlier by observing as under :
"......... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay ........ It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not."
8. In the co-detent's case, the impugned order of detention was made on 7th October 1987 but the detenu had been arrested on 18th January 1988 in execution thereof and when it was found that there absolutely no explanation for that delay in the counter affidavit or otherwise, it was held in that context that :
".......... the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non-explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention."
9. Mr. G. Prakash, appearing for the State of Kerala, has on the other hand, succeeded in showing in the present case that there was no slackness or delay on the part of the concerned authority in an attempt to arrest the petitioner or serve the detention order on him. It has been shown from record that after the order was passed on 7th October 1987, it was forwarded to the Superintendent of Police, Alleppey, within whose jurisdiction the petitioner had residence on 9th October 1987 itself by the detaining authority. There is also on record a reply sent by the Superintendent of Police on 10th December 1987 that the person referred to in the order, namely, Issac Babu was absconding from his place and efforts were being made confidentially to trace him. This plea is very clearly taken in the counter affidavit filed on behalf of respondent No. 2, State of Kerala. It finds in para 9 of the said counter, in reply to the corresponding para of the writ petition, that even resort to provisions of Section 7(1)(b) of the COFEPOSA Act was taken by initiating proceedings on 20th January 1988 but in spite of that the detenu continued to abscond and it was only on 23rd May, 1988 that he could be arrested. The respondent had very clearly reserved its right to place the correspondence as well as the record before the Court at the time of hearing.
10. In view of the elaborate submissions made on behalf of the respondent in this regard and the reliance placed on the record while filing the counter, I allowed Mr. G. Prakash to produce the record for perusal of the Court and I feel satisfied that the Superintendent of Police by his letter dated 10th December 1987 confirmed that the detenu was absconding and that earnest efforts were being made confidentially to trace him. I also find noting on the file that immediately on receipt of this intimation from the Superintendent of Police on 10th December 1987 a proposal was mooted to the effect that notification under Section 7(1)(b) of the COFEPOSA Act be also issued requiring the said person to appear before the Superintendent of Police Alleppey and surrender before him for the purpose of execution of the detention order. This proposal was finalised and in pursuance thereof notification was issued on 20th January 1988. A copy thereof has also been placed on record. The delay in this case, therefore, is fully explained and it is not open to the petitioner to argue on the basis of the decision in the case of T. A. Abdul Rehman (supra) that his detention also stands vitiated, because of delay in execution of the detention order because in that case, as already noted, there was no explanation at all for the delay, and there was no plea that any resort to the provisions of Section 7(1)(b) of the Act was even considered, much less undertaken. I therefore negative this plea of the petitioner.
11. Mr. Setia then argued that the detention order itself is invalidated for the reason that the material which was relevant for the formation of the subjective satisfaction of the detaining authority was not placed before the said authority before passing of the detention order. Those documents, according to him, are application for bail and the order passed thereon. He read out from para 10 of the writ petition in which averment in this regard is contained to the effect that the application for bail and the order passed thereon as well as the application for modification of the order of passed thereon were not placed before the detaining authority. Learned counsel argued that it is stated further that in the said application for bail, the petitioner had denied all the allegations made against him and it was thus necessary that this was placed before the detaining authority before the detention order was passed and failure to do so would vitiate the detention order inasmuch as all the material which was relevant to the formation of the subjective satisfaction had not been placed before the concerned authority. This contention is reiterated in ground V of the petition also. He read out from the application for bail annexed with the writ petition as Annexure III and pleaded that even though there was no express retraction of the statement made by the petitioner under Section 108 of the Customs Act, but he has denied all his links with T. A. Sirajudeen @ Siraj or T. A. Abdul Rehman and that since the gravamen of the allegations against the detenu were that he in association with the said two persons had indulged in concealment, transportation, carriage or disposal of smuggled gold, once he had denied acquaintance with the said persons, it became a very material fact to be placed before the detaining authority and that in the absence of that it becomes certainly a case where the subjective satisfaction stands vitiated on account of want of consideration of all the relevant material.
12. Mr. Setia further argued that the order of bail imposing certain conditions on the petitioner was also relevant because thereby it was directed that the petitioner shall on every Monday and Friday appear before the Superintendent, Central Excise for the purpose of investigation, and that this fact was also very material for being brought to the notice of the concerned authority because it had a bearing on the question as to whether the detention was necessary or not.
13. Mr. G. Prakash on the other hand argued that on the facts and circumstances of this case, failure to place bail application or bail order before the detaining authority would be of no consequence and would in no manner vitiate the detention order. He pointed out that in the first instance the bail application did not contain retraction of the statement as such, and wherever there have been express retractions, these have been placed before the detaining authority, as the grounds of detention would show, namely, those of Haneefa and Sirajudeen. He further argued, placing reliance on the judgment of the Supreme Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, that even if retraction of a statement was not brought to the notice of detaining authority, but if there was otherwise sufficient, independent and corroborative material placed before the detaining authority, then mere failure on the part of the Sponsoring Authority to bring to the notice of the detaining authority retraction of the statement would not affect the validity of the detention order.
14. The learned counsel argued that in this case, the grounds of detention very clearly show that both from the house search of T. A. Sirajudeen @ Siraj, as well as the present petitioner, visiting cards of Hotel Galaxy, Santa Cruz, Bombay were recovered. He further pointed out that it is further mentioned in the grounds of detention that a rough road sketch was recovered from the house search of Sirajudeen @ Siraj indicating the location of the house of the present petitioner. The gist of these documents is very extensively given in the grounds of detention. According to Mr. G. Prakash this constituted independent and corroborative material to show connection of T. A. Sirajudeen with the present petitioner, and that his bare assertion in the bail application that he had no links with the said persons was of no consequence and that even if this bail application which contains only a veiled retraction of the statement was not placed before the detaining authority, the detention order would not be vitiated because there was enough independent material before the detaining authority to show the connection of Sirajudeen @ Siraj with the petitioner. The recovery of the money from the house of the petitioner, along with note book containing details of the expenditure about which all particulars were set out in the grounds of detention was also a material circumstance which corroborated the statement of T. A. Sirajudeen @ Siraj.
15. I have given my careful thought to the contentions respectively canvassed by both the counsel and I find great deal of force in what Mr. G. Prakash has argued. A perusal of the bail application (Annexure III to the writ petition) shows that it does not contain retraction of the statement given by the petitioner under Section 108 of the Customs Act. All that is pleaded is denial of any links between the petitioner and Sirajudeen @ Siraj or Abdul Rahman. Mr. G. Prakash is right in pointing out that there is enough independent evidence to establish those links, namely, recovery of the rough road sketch, from Sirajudeen's house, showing the way of petitioner's house in his native place, recovery of the cards of Hotel Galaxy, Santa Cruz, Bombay from both of them, indicative of their visit to or stay at the said Hotel, and also recovery of a note book along with Indian currency of Rupees 43,500/- containing full details, and for which the petitioner could not offer any explanation. The ratio of the judgment in the case of Prakash Chandra Mehta (supra) thus fully applies to the facts of the present case and the failure to place copy of the application of bail before the detaining authority would not vitiate the detention order.
16. For the reasons aforesaid the judgments cited by Mr. Setia, namely, that in the case of Anant Sakharam Raut v. State of Maharashtra and another, , can be of no avail to him because every case depends upon its facts and circumstances, and there is no indication in the judgment of that case that there was any other material before the detaining authority to arrive at the subjective satisfaction about the necessity of preventive detention. Similarly the facts in the case of Ayya Alias Ayub v. State of U.P. and another, , are also distinguishable.
17. I also find force in the arguments of Mr. G. Prakash that nothing turns on the failure to place the bail order containing certain conditions of attendance in the office of the Superintendent concerned. Twice a week or the modification order because the detention order in this case had been passed under the provisions of Ss. 3(i)(iii) and 3(i)(iv) of the Act with a view to prevent the petitioner from engaging in transportation or concealment or keeping smuggled gold or dealing in smuggled gold and in such a case the conditions of bail order, putting certain restrictions on the movements or containing certain directions are not relevant as held in the case of Haridas Amarchand Shah of Bombay v. K. L. Verma and others, . For the same reason the omission to place copy of the bail application or the bail order before the declaring authority before issuance of declaration under Section 9(1) of the Act is not such a factor which would vitiate the declaration.
18. I therefore find it to be a case where none of the contentions canvassed on behalf of the detenu carry any force, and there is no case made out to come to a conclusion that the detention order or the continued detention of the petitioner were liable to be set aside.
19. The writ petition is accordingly dismissed and the rule is discharged. No order as to costs.
20. Rule discharged.