Delhi High Court
Manoj Kr. Dubey And Others vs Union Of India & Ors. on 23 December, 1999
Equivalent citations: 2000IIAD(DELHI)9, 2000CRILJ1857, 83(2000)DLT156, 2000(52)DRJ431, 2000(68)ECC41
ORDER S.K. Agarwal, J.
1. By these two writ petitions petitioners Manoj Kumar Dubey (Crl. W.No. 758/99) and Anuj Vohra (Crl.W.No. 759/99) have sought the quashing of their respective detention orders dated 8th June, 1999 and 28th May, 1999 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as Act) by the detaining authority (respondent No. 2), ordering their detention with a view to preventing them from smuggling goods.
2. Learned counsel for the petitioner stated that in both these petitions common questions of law and fact arise for consideration. Therefore, it is proposed to dispose of these two petitions by a common judgment.
3. Facts giving rise to these petitions briefly are : that, the petitioners were proceeding to board United Airlines Flight No. UA-002, scheduled to leave New Delhi for Hong Kong on 18th March, 1999 at 0135 hours, as its crew members; on specific intelligence they were intercepted and on being asked they denied that they were possessing any foreign currency; consequently their search was conducted in accordance with law. Search of Manoj Kumar Dubey revealed that a yellow colour paper envelope was concealed underneath two nylon belts wrapped around his abdomen and waist bend, which was found to contain assorted foreign currency equivalent to Rs. 99,49,375/- (Rupees ninety nine lacs forty nine thousand three hundred seventy five only). Three paper slips bearing details of foreign currency transactions were also recovered.
4. Search of Anuj Vohra revealed that a black coloured polythene bag beneath the back side of the waist bend of his trousers, which contained an envelope bearing the markings of 'Maurya Sheraton Executive Class', having US $ 20,900 equivalent to Indian Rs. 8,71,530/-. Subsequently at the lockup his search further revealed that beneath the soles of his both feet two packets were stuck with adhesive tapes in an ingenious manner which were found to contain foreign currency equivalent to Rs. 10,42,500/-.
5. The detaining authority taking into consideration the potentiality and propensity of the petitioners, to indulge in prejudicial activities passed the impugned orders under Section 3(1) of the Act, which were served on the petitioners along with the grounds of detention and relied upon documents. Petitioners sent to two separate representations on 2nd July, 1999 to Joint Secretary (COFEPOSA) through Superintendent, Jail, the same were rejected vide two separate memorandums dated 16th July, 1999. Further vide memorandum dated 20th July, 1999 petitioners were informed that their representations were also considered by Central Government and were rejected.
6. We have heard Mr. Harjinder Singh, learned counsel for the petitioners who has raised several contentions while attacking the impugned orders of detention. Mr. H.S. Phoolka, learned Sr. Advocate on behalf of Union of India and Mr. K.C. Mittal, learned counsel for Govt. of NCT of Delhi vehemently opposed all the contentions raised by the petitioner. We have also been taken through the record.
7. Firstly, it was argued that before the detaining authority there was no cogent material to show that there was an imminent possibility of the petitioners being released; that in the grounds of detention it was only stated that a possibility of their being released on bail, in near future cannot be ruled out, therefore, the detention order was liable to be quashed.
8. As per the settled law while deciding the legality of an order or preventive detention, passed by the detaining authority, observing "that there was likelihood of the petitioners being released on bail"; sufficiency of material on which such a satisfaction was arrived cannot be questioned. Perusal of the grounds of detention reveal that the detaining authority had considered contents of their bail applications filed before the Addl. Chief Metropolitan Magistrate, and before the Additional Sessions Judge as well as the orders passed thereon. On the basis of the said material, the detaining authority came to the conclusion that there was likelihood of the petitioners being released on bail and passed the impugned orders of detention.
9. Thus there was cogent material on which such a subjective satisfaction could be validly reached. The question whether the material was sufficient or not cannot be examined by this court. Supreme Court in a recent decision, in Ahmad Nassar Vs. The State of Tamil Nadu & Others , observed as under :-
"So before the detaining authority, there existed not only order dated 12.4.1999 rejecting his bail application but the contents of the bail application dated 1.4.1999. The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court once it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is to premise to hold that there was no likelihood of his heirs released on bail. The words "likely to be released" connote chances of being bailed out in case pending bail application or in case it is moved in future is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances, the type of crime to be dealt under the criminal law, including contents of the bail application, each and compositely all would constitute to be relevant material for arriving at the conclusion."
10. Therefore, challenge to the detention orders on this ground cannot succeed.
11. Next it was argued on behalf of the petitioner Manoj Kumar Dubey that before the Advisory Board a specific request was made for examination of his co-detenu Anuj Vohra as a witness, in order to rebut the allegations against him. The witness (co-detenu) was present but was not examined by the Advisory Board, as such his detention was in violation of Article 22(4) of the Constitution of India.
12. The arguments though attractive does not find support, even from the pleadings of the petitioners. Petitioner Manoj Kumar Dubey, in the writ petition has pleaded that the petitioner had appeared before the Advisory Board along with his counsel on 28th July, 1999; that his representation dated 26th July, 1999 which was also sent through uperintendent, Jail was also placed before the Advisory Board at the time of hearing; that in the said representation he had specifically requested that he would like to lead evidence at the time of hearing and would like to examine his witness in rebuttal of the allegations made against; that his co-detenu was not examined by the Advisory Board and thus there is a violation of Article 22(4) of the Constitution of India, making the detention illegal. Relevant para of writ petition reads as under :-
"12. The meeting of the Hon'ble Advisory Board had taken place on 28.7.99 at Delhi High Court. The petitioner had appeared along with his counsel on the said date of hearing and a representation dated 26.7.99 was also sent through the Supdt. of Jail, which was placed before the Hon'ble Advisory Board on the date of hearing. Copy of the said representation is annexed herewith and marked as Annexure `H'. The petitioner respectfully states that in the said representation he had specifically requested that he would like to lead evidence at the time of hearing and he would like to examine his witness in rebuttal of the allegations made in the grounds of detention. The petitioner respectfully submits that his co-detenu was not examined by the Hon'ble Advisory Board and as there is violation of Art. 22(4) of the Constitution of India making the detention illegal. The co-detenu Shri Anuj Vohra was a relevant and material witness to rebut the allegations made against him to show that the petitioner's statement was recorded under duress, maltreatment and use of third degree methods and that the alleged case which has been made against him was false, his statement was not recorded and as such the detention of the petitioner is in violation of Art. 22(5) of the Constitution of India making the detention illegal."
13. Bare reading of the above would show that there is no averment that at the time of hearing either the petitioner or his counsel, made any specific request to the Advisory Board and for examination of co-detenu Anuj Vohra as a witness. In the representation it was only stated that he would like to examine witnesses. There is nothing on record to show that the petitioner or his counsel moved any application or made any request in writing or otherwise for said purpose. During arguments to our query it was conceded that besides making averment aforementioned. In the representation no separate request was made to the Advisory Board to examine the co-detenu. In the absence of any positive averment or other material such an argument cannot be sustained and is liable to be rejected.
14. Next it was argued that grounds of detention in both the cases are verbatim reproduction of the dossier sent by the sponsoring authority; reproduction of the sanction and complaint and that the grounds are identical and stereotype, which reveal non-application of mind in passing the detention order. Reliance was placed on Jai Singh Vs. Union of India 1985 SC page 764.
15. In this case as noticed above both the petitioners were intercepted while proceeding to Board United Airlines as its crew members on the same date by the same flight. Search of both the petitioners was carried out and concealed foreign currency worth about 99.5 lacs was recovered from Manoj Kumar Dubey and about Rs. 19.0 lacs from Anuj Vohra by the investigating agency. Therefore, the sanction and the complaint are bound to be based on the same set of facts. It cannot be said to be a case of non-application of mind on the part of detaining authority. Decision in the case of Jai Singh (supra) relied upon by the learned counsel for the petitioners is not at all applicable to the facts of this case. In Jai Singh's case there was repetition word by word of the police dossier which is not the case here. This contention has also no merit and is rejected.
16. Next it was argued that there was complete non-application of mind in passing the detention order and there was suppression of material facts from the detaining authority, that the petitioners were suspended from service and the correspondence between the petitioners and the United Airlines was not placed before the detaining authority which vitiates the detention order. Reliance was placed on Rattan Singh Vs. State of Punjab AIR 1982 SC page 1.
17. It was not disputed that all relied upon documents were duly served upon the petitioners. Their request for supply of further documents was also considered and as the documents demanded were found to be for extraneous or irrelevant therefore, the same was declined. We find that there was neither any suppression of material fact from the detaining authority, nor it is a case of non-application of mind. The correspondence between the detenu and the United Airlines was not relevant to the prejudicial activities of the detenu and there was no question of placing such documents before the detaining authority. Supreme Court in Kusum Chandrakant Khaushe Vs. L. Hmlingliana , while rejecting similar contention held that omission or the failure on the part of the sponsoring authority, to place the order of suspension expressly cutting the movement of the detenu in the area of operation was held to be neither vital, nor material and non placing of the same before the detaining authority, was held to be causing no prejudice to the detenu. In this case also the petitioners have not stated as to how non-placing of the correspondence between the petitioner and the Airlines authorities have caused a prejudice to them. This contention has no merit and is liable to be rejected.
18. It was also argued that the petitioner had requested for information and documents vide representation dated 28th June, 1999 to the Joint Secretary and the same were not supplied. Reliance in this regard was placed on Madhu Khanna Vs. Administrator of Delhi .
19. In order to appreciate this contention relevant paragraph vide which grievance, of alleged suppression of the material facts from the detaining authority and alleged non-supply of documents was made is reproduced, which reads as under :-
10. I respectfully submit that there is suppression of material facts from the detaining authority. The following amongst other facts have been suppressed from the detaining authority :-
(a) All the correspondence with the United Airlines on the self same matter as referred to above have been suppressed.
(b) That foreign currency is not notified u/s. 123 of the Customs Act, 1962 nor specified under Chapter IV-A of the Customs Act has been suppressed.
(c) Affidavit filed by me and Shri Anuj Vohra in the Court of Addl. Sessions Judge whereby we requested for expeditious trial of the has also been suppressed.
(d) Flight manifest relating to the United Airlines dated 18.3.99.
(e) The agreement entered into between myself and United Airlines under the Flight Attendant Agreement and also of Anuj Vohra.
(f) The Court proceedings after 14.5.99.
(g) Gist of intelligence.
The above documents are very relevant and material, copies of the same may kindly be supplied to me to enable me to make an effective representation.
20. Much emphasis was laid regarding the non-placing of an affidavit purported to have been filed by the petitioners in the court of Addl. District and Sessions Judge, Delhi by whom applications for bail were heard. Reading of this affidavit itself would show that the same was submitted on behalf of the petitioners, only after the orders on the bail applications were reserved by the learned court. No copy of the same was served on the prosecution. As such it has to be inferred that the said affidavit was not within the knowledge of the sponsoring authority, and thus it could not have been placed before the detaining authority.
21. In our considered view the correspondence and the agreements between the petitioners and their employer United Airlines flight, and the other documents mentioned at Sr. No. (d), (f) and (g) were neither material nor relevant documents and non-placing of these documents before the detaining authority does not vitiate the detention orders. Otherwise also relevance of these documents was not shown during course of arguments. Non-supply of these documents to the petitioners thus cannot be said to have prejudiced their rights to make effective representations.
22. Lastly it was argued that the comments on the representations of petitioners were not called by the detaining authority and as such delay in consideration of their representation makes their detention violative of Article 22 of the Constitution of India.
23. Original record wherein the representations of the petitioners were dealt with was produced before us. The perusal of the same reveals that on 5th July, 1999 the representations of the petitioners were received; the same were brought to the notice of the Joint Secretary, (COFEPOSA) and as per his orders, comments of sponsoring authority on the representations were called.
24. As per record we find that the comments from the sponsoring authority were called under instructions from the "empowered officer". It cannot be said that the representations of the petitioners were dealt with in a routine manner or that there was no application of mind by the competent authority as to whether it was necessary to call for the comments of sponsoring authority. Observation made by Supreme Court in R. Paulsamy Vs. Union of India & Anr., are fully complied with in this case.
25. For the a foregoing reasons we do not find any merit, in any of the contentions raised by the petitioners. Both the writ petitions are dismissed. No order as to costs.