Delhi High Court
Archana Chelawat vs Union Of India (Uoi) And Ors. on 7 September, 1989
Equivalent citations: 1990(26)ECR288(DELHI)
JUDGMENT H.C. Goel, J.
1. By this petition under Article 226 of the Constitution of India, Kumari Archana Chelawat, the petitioner, prays for quashing of the order of detention dated October 11, 1988 passed by Shri K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, in respect of the petitioner's brother, Shri Dharmendra Suganchand Chelawat. Shri Verma passed the order of detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 with a view to prevent said Dharmendra Suganchand Chelawat from engaging in the transportation and abetting in the interstate export of psychotropic substances. It is stated in the grounds of detention mat on September 21, 1988, a godown of one Siddharth Trotters Pvt. Ltd., Kothari Mansion, at 357, S.V.P. Road, Bombay, was searched. Fine card board cartons containing in all 2,51,000 mandrax tablets weighing 125.5 kgs. and valued at Rs. 7,53,000/- were seized from there. During the follow up investigations the officers of the Central Excise & Customs searched me premises of the detenu's father S. K. Chelawat at Indore (M.P.) which resulted in the recovery of 51 kgs. of mandrax tablets from a Maruti van parked in the house compound on September 22/23,1988 which was seized. 20,500 kgs. of mandrax tablets, 148.300 kgs. of methaqualone powder and 97.700 kgs. of white powder were recovered from the garage and 200 grams of brown tablets were recovered from the residence itself. In the search conducted on September 23, 1988 one telephone diary was seized from the shop premises of Crescent Pharmaceuticals, Indore and on September 24, 1988 machinery used for the manufacture of mandrax tablets was seized. The statement of Manoj Kumar Dayachand Jain was recorded by the Customs Authorities in which he stated that he had received mandrax tablets from said S.K. Chelawat of Indore. S.K. Chelawat in his statement recorded on September 23, 1988 stated that he had been manufacturing mandrax tablets at his factory at Indore, and that he was assisted in that by his son Dharmendra Suganchand Chelawat, the detenu. The detenu is also alleged to have stated before the concerned authorities on October 3, 1988 that he had been maintaining accounts regarding raw material received and supplied for mandrax tablets. He also transported such tablets in a Maruti van which was registered in his name. He also stated that he had suspicion that the tablets manufactured by his father were illegal and possibly narcotics.
2. Two grounds were urged by Mr. Ram Jethmalani, learned Senior Advocate to challenge the order of detention. It was submitted by Mr. Jethmalani that the detention order was passed on October 11,1988 while the detenu was in judicial custody and no application for being released on bail was filed. There is no mention in the grounds of detention that the detenu was likely to be released or that the detaining authority at all considered this matter. The order also does not refer to any fact or circumstance or material on the basis of which the subjective satisfaction of the detaining authority that the detenu was likely to indulge in the illegal activity from which he was sought to be prevented by making the order of detention against him, on his coming out of the jail, he being already in judicial custody. It was contended that all this went to show that this is a case of total non-application of mind by the detaining authority in passing the order of detention and as such, the order of detention deserves to be struck down.
3. Mr. Jethmalani formulated four propositions, which according to him, depict the correct law with regard to passing of an order of detention in respect of a person who is already in custody. They are as follows:
(i) The detaining authority has got the jurisdiction to pass an order of detention against a person in judicial custody.
(ii) If a person in judicial custody is sought to be detained, then the detaining authority must evaluate the probabilities of his being released on bail and the authority must record its satisfaction to that effect.
(iii) If the detaining authority has complied with the proposition No. (ii) above, it must then record in the order of detention that the detenu is likely to indulge in the activity which is likely to be prevented from being indulged in.
(iv) In addition to the above some reasonable material must also be disclosed in the grounds of detention to support the view as taken by the detaining authority as stated in the proposition No. (iii) above.
4. The contention of Mr. Ram Jethmalani is that propositions (ii) to (iv) above must be complied with for an order of detention to be free from the attack of being a mindless act. In support of his contention Mr. Ram Jethmalani referred to two judgments of the Supreme Court, namely, Shashi Aggarwal v. State of U.P. , and Abdul Razak v. S.N. Sinha, Commr. of Police , and the judgment of this Court in Jyotin Vyas v. Union of India and Ors. Delhi Lawyer 143.
5. Mr. G.S. Sharma in reply repudiated the arguments of Mr. Jethmalani. He relied on a recent decision of the Supreme Court in the case of Vijay Kumar v. Union of India , to support his contention that for making an order of detention against a person in custody all that is required is that the detaining authority must be aware of the person being in custody and that there should be material before the detaining authority on which it can reach its subjective satisfaction that the order of detention is still required to be passed against the person and beyond that there is no requirement as has been contended by Mr. Jethmalani.
6. After hearing the learned Counsel for the parties and going through the aforesaid judgments we find ourselves in agreement with the submission of Mr. G.S. Sharma, learned Counsel for the respondents. The detaining authority was fully aware that the detenu was in custody and stated so in the grounds of detention. There was also relevant matter before the detaining authority, as has been referred to by it, on which the authority could have its subjective satisfaction as stated above. Thus the order of detention could not be said to have been passed without due application of mind. In the case of Vijay Kumar (supra) which is a case of detention under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 the Supreme Court referred to the case law on the subject, including the case of Shashi Aggarwal (supra). It had been found by the Supreme Court that from the grounds of detention it could be seen that the detaining authority was fully aware of the fact of the arrest of the detenu at the time of the making of the order of detention. It was not even stated specifically in the grounds of detention that the person was in custody. The Supreme Court repelled the contention on behalf of the detenu that the fact of the detenu being in custody ought to have been specifically indicated in the grounds of detention and that not having been so indicated, the order of detention was passed without due application of mind. It was held that it was not necessary that in the order of detention awareness of the detaining authority of the person being in custody has to be indicated. It was enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention. The grounds of detention stated the incident of recovery of certain foreign marked gold biscuits from one Uttam Chand, codetenu. Uttam Chand had disclosed that goods. were given to him by Vijay Kumar, detenu. Uttam Chand had disclosed that Vijay Kumar in fact had given him 300 gold biscuits to be taken away from Uttam Chand by one Raj Kumar. This was the material relied on by the detaining authority in passing the order of detention against Vijay Kumar. It was held that there was material before the detaining authority for reaching its subjective satisfaction and that there being awareness on the part of the detaining authority of the fact that the detenu was already in detention, the order of detention passed under the circumstances was not open to attack of the same having been passed without due application of mind. The order of detention was upheld. The later part of the above-mentioned proposition No. (ii) and propositions No. (iii) & (iv) as formulated by Mr. Jethmalani were thus impliedly repelled by the Supreme Court in this judgment. In this case the Supreme Court also noticed that in the case of Uttam Chand, codetenu, the detaining authority was of the impression that the offence under Section 135 of the Customs Act under which Uttam Chand was arrested, was a bailable offence, when it was in fact a non-bailable offence. The Court observed that even this misapprehension on the part of the detaining authority which had a direct bearing on the question of the likelihood of Uttam Chand being released on bail also did not have any bearing on the question of passing of an order of detention, if the detaining authority was aware of the person sought to be detained being in custody. The Supreme Court finally laid down the law on the subject as below:
On a conspectus of the above decisions, we are of the view that when a detenu is already under detention for an offence, whether bailable or nonbailable, the detaining authority will take into his consideration the fact of detention of the detenu and, as laid down in Shashi Aggarwal's case (supra), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention namely, (1) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.
This judgment is thus a complete answer to the submission of Mr. Jethmalani on the point at issue.
7. Now regarding the judgments as referred to by Mr. Jethmalani, it may be stated straightaway that in none of those three judgments the propositions No. 3 and 4 and the latter part of proposition No. 2 as contended by him was laid down or approved. The case of Shashi Aggarwal (supra) is a case of detention under Section 3 of the National Security Act. The Supreme Court reiterated the legal preposition that the validity of an order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that a person against whom an order of preventive detention is being made is already under custody and yet for some reasons his preventive detention is necessary. The Court on an examination of the grounds of detention found that the grounds talked about the five offences allegedly committed by the detenu Aran Aggarwal. It was stated in the grounds of detention that they being ill acts of the detenu, communal riots broke out in Meerut City, and in that manner the detenu had committed such act which was against public law and order. The Supreme Court further found and observed that it was inaccurate to state that communal riots broke out due to the incident attributed to the detenu on May 19,1987. The Supreme Court thus held that the material as referred to by the detaining authority was not such on which the subjective satisfaction of the detaining authority could be reached for making the order of detention of the detenu, Arun Aggarwal. The Supreme Court then considered the question as to whether the order of detention could be justified solely on the ground that the detenu was trying to come out of jail and there was enough possibility of his being bailed out and he would then act prejudicial to the interest of the public order. In this context it was held that for making an order of detention against a person while he is in custody or jail there must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already in custody and still for compelling reasons his preventive detention is necessary. It was held that the mere fact that a person was in custody and there was enough possibility of his being bailed out and that he would then act prejudicial to the interest of the public order was not by itself sufficient to detain a person under the National Security Act. Having found the material as referred to in the order of detention being irrelevant to the question of maintenance of public order, as stated by us above, it was held that there was no material made apparent on the record that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of the public order, the detention order having been made merely on the ground that the detenu was trying to come out of the jail and that there was enough possibility of his being bailed out, the order could not be justified on that basis and was quashed.
8. In the case of Abdul Razak (supra) the orders of detention were passed against the detenu five times, one after the other, in a short span of March 24, 1985 to January 25, 1988. The orders were passed to keep the detenu in continued detention when in between orders of detention had become inoperative for one reason or the other. The detenu was released on March 14, 1988 when the Advisory Board refused to confirm the fifth order of detention. In the criminal case against the detenu that came up for hearing before the Supreme Court on July 18, 1988 an allegation was made that the detenu had absconded. The Supreme Court ordered on April 7, 1988 that the detenu should surrender within a week. In compliance to that order the detenu surrendered on April 13, 1988. Then on May, 23, 1988 the order of detention was passed for the sixth time against the detenu, which was the subject-matter of the writ petition. The Supreme Court found that the ground stated by the detaining authority in arriving at its subjective satisfaction was that the detenu if released on bail will indulge in acts prejudicial to the maintenance of public order and that therefore an order of his detention was imperative. The Supreme Court also found that the detenu had all along been in jail for a period of nearly three years prior to the passing of the impugned order of detention and was a free man only for a short duration i.e. during the period from March 14, 1988 to April 13, 1988 and that nothing was stated in the grounds of detention that the detenu had indulged in any prejudicial activity in that period. The Supreme Court further found that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the designated Court, which alone could hear the bail application against the detenu who was accused of the offence punishable under the Terrorist and Disruptive Activities (Prevention) Act, 1985, and, as such, the possibility of his coming out of jail was non-existent. It was on these facts and circumstances of the case that the impugned order of detention was quashed. It was held by the Supreme Court that in a case of a detenu in custody there must be awareness in the mind of the detaining authority that the detenu was in custody at the time of service of the order of detention on him and further that cogent relevant material and fresh facts had been disclosed which necessitated the making of an order of detention. As regards the judgment of a Division Bench of this Court in Jyotin Vyas v. Union of India (supra), it will suffice to say that that judgment has no bearing whatsoever on the said point at issue in the present writ petition. In conclusion we find no merit in the above contention of Mr. Jethmalani and reject the same.
9. The next ground of challenge to the order of detention as urged by Mr. Jethmalani is that the statement of Manoj Kumar Dayachand Jain @ Pappu was recorded at the time of the search of the godown of Siddharth Pvt. Ltd., but a copy of this first statement of Jain was not supplied to the detenu along with the grounds of detention and for that reason the detention of the detenu is invalid. In the corresponding paragraph 6 of the counter-affidavit of Shri S. N. Balkrishnan, Under Secretary to the Ministry of Finance, Government of India, filed on behalf of respondents No. 1 to 3 it is stated that it was denied that any statement of Manoj Kumar Dayachand Jain @ Pappu was recorded at the time of the search of the said godown. He further stated that after the search and seizure Jain's statement was recorded, a copy of which was placed at pages 46-49 of the documents as supplied to the detenu along with the order of detention. It was thus for the petitioner to show that the statement of Manoj Kumar Dayachand Jain alias Pappu was recorded at the time of the search and seizure from the said Company besides his statement recorded later on the same date i.e. 21.9.1988 and which was admittedly duly supplied to the detenu. To support the submission that a statement of Jain must have been recorded at the time of the search and seizure of the premises Mr. Jethmalani referred to paras 1, 3 and 4 of the grounds of detention. The relevant portions of para 1, para 3 and para 4 read as below:
(i) While the search was in progress one person namely Manoj Kumar Dayachand Jain alias Pappu, entered the said premises and enquired about the parcels to be received by him from Indore. This person was identified as the owner of the parcels by one of the directors of Siddharth Trotters Pvt. Ltd. who was present there. On being questioned, the said person admitted the ownership of the aforesaid parcels, mentioning that they contained mandrax tablets and gave his details to the DRI officers.
(ii) On 21.9.1988 the residential premises of the said Manoj Kumar Dayachand Jain at Room No. 138, 1st Floor, 52 Amarwadi, Bombay-4 were searched under a panchnama under the NDPS Act, 1985. However, nothing incriminating was found there.
(iii) Shri Manoj Kumar Dayachand Jain in his statement dated 21.9.1988, recorded under Section 67 of the NDPS Act, 1985 had inter alia admitted that he is a resident of 138, 1st Floor, 52 Amarwadi, C.P. Tank, Bombay-4.
We fail to section as to how the narration of the above facts in the grounds of detention go to show or indicate in the slightest that the statement of Manoj Kumar Dayachand Jain alias Pappu was recorded at the time when the search and seizure was made at the godown of Siddharth Trotters Pvt. Ltd. The grounds of detention state about the recording of the statement of said Jain once on 21.9.1988 after the search of the said godown had been conducted and again on 28.9.1988. Copies of those statements were admittedly duly furnished to the detenu. There is thus no merit in this contention of Mr. Jethmalani.
10. It was also submitted by Mr. Jethmalani that in case no statement of Jain was recorded at the time of the search of the godown, it was not disclosed in the grounds of detention as to how the detaining authority came to know that Manoj Kumar Dayachand Jain had come to the godown and about his alleged admission that he was the owner of the parcels containing Mandrax tablets. It was contended that that showed the detention order was passed mechanically without due application of mind. This submission has been made by Mr. Jethmalani under some misapprehension or he omitted to read the whole of the grounds of detention. In para 5 of the grounds of detention the authority clearly stated that Sh. Manoj Kumar son of Babulal Jain, in his statement under Section 67 of the NDPS Act, among others, had stated about the arrival of Manoj Kumar Dayachand Jain at the godown and about his alleged admission of his ownership of the parcel. Then in para 7 there is again mention of a similar statement of one Shri Narendar B. Jain, one of the directors of Siddharth Trotters Pvt. Ltd., Bombay. No other point was urged. In conclusion we find no merit in the writ petition. The same is accordingly dismissed.