Delhi High Court
Parmod Kumar Gola vs Union Of India And Others on 2 February, 1987
ORDER
1. This order shall dispose of the following writ petitions :
1. Parmod Kumar Gola v. Union of India & others (Criminal Writ No. 147 of 1986).
2. Dharam Pal Gola v. Union of India & others (Criminal Writ No. 157 of 1986).
2. The petitioner Dharam Pal Gola in Crl. W. 157 of 1986 is the father of Pramod Kumar Gola, the petitioner in other Writ Petition No. 147 of 1986. Both these petitions are identical and even the facts alleged in the grounds of detention against both of them as also the impugned orders of detention both dated 31-3-1986 are identical.
3. During the month of October 1985 the Officers of the Enforcement Directorate, Delhi Zone, New Delhi received information that both the petitioners and their associates relatives had been engaged in illegal sale and purchase of foreign exchange, on a very large scale and that one of their associates, namely Mahesh Gupta was apprehended by the Enforcement Officers Bombay in a case during the last week of September, 1985. In pursuance of this information the Officers of Enforcement Directorate, Delhi conducted simultaneous searches on 3-10-1985 at the following premises :-
(i) Residential premises of Dharam Pal Gola, 4598/12-B, Darya Ganj, New Delhi.
(ii) Residential premises of Jagdish Prasad Aggarwal, 4598/7, 11, Darya Ganj, New Delhi.
(iii) Residential premises of D. D. Chauhan, Uphar Cottage, Gali Hakim Bauli, behind Shakti Agencies, Daryaganj, Delhi.
(iv) M/s. D. P. Auto Electrical & Engineering Works, 3-Ansari Market, Darya Ganj, Delhi.
4. As a result of these searches one Gold Biscuit of foreign origin and Indian currency totalling Rs. 2,53,500/- were recovered besides some documents. After recording the statements of both the petitioners and their relatives and others it was revealed that both the petitioners had been dealing in illegal sale and purchase of foreign exchange on a large scale and consequently the impugned orders of detention were passed against both of them on 31-3-1986 by Shri M. L. Wadhawan, Additional Secretary to the Government of India, especially empowered in this behalf under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) after recording his subjective satisfaction that such an order was necessary with a view to preventing them from acting in any manner prejudicial to the augmentation of foreign exchange. In pursuance to the detention orders the petitioners were detained on 9-4-1986 in the Central Jail, Tihar, New Delhi.
5. Besides the grounds taken in the writ petitions, the petitioners filed additional grounds also for the quashing of the orders of detention and the same were controverter by the respondents by means of counter-affidavit and additional-affidavit deposed to by Shri S. K. Chowdhry, Under Secretary to the Govt. of India, New Delhi in both the writ petitions and identical replies were given in both these petitions by the respondents in the counter-affidavit and additional-affidavit.
6. A number of contentions were raised by the learned counsel for the petitioners and the same are identical for both the petitions. The first contention raised was that the right of the petitioners to make effective representations to the detaining authority, the Central Government and the Advisory Board had been taken away because documents and information asked for had not been supplied and their representations to the detaining authority and the Central Government were rejected on 14-5-1986. The meeting of the Advisory Board was held on 27-5-1986. Two representations dated 16-4-1986 (Annexure 'J') and 23-4-1986 (Annexure 'L') were made by the petitioners to the Additional Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. The representation of 16-4-1986 does not bear this date or any other date but it was admitted by the learned counsel for both the parties that this representation was made on 16-4-1986. It is in this representation of 16-4-1986 that the petitioner demanded documents/information and as a matter of fact no representation was made against the orders of detention as such. In the second representation dated 23-4-1986 made against the order of detention prayer was made for passing orders revoking the detention orders and in para 9 thereof it was specifically mentioned that a separate application requesting for certain relevant and vital information and documents etc. had been made and the petitioners claimed liberty of supplement this representation on receipt of those documents and the information if the need so arose. Admittedly both these representations dated 16-4-1986 and 23-4-1986 were rejected on the same day, i.e. 14-5-1986 vide separate communications which are Annexure 'K' and Annexure 'P-1' respectively. In Annexure 'K' while rejecting the representation dated 16-4-1986 the position regarding documents/information required was made clear and can be set out as under :-
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Documents/information demanded in Reply dated 14-5-1986 (Annexure K) representation dated 16-4-86 (Annex. J)
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3(i) Date of the intimation of the Not necessary for making an detention proposal and its effective representation receipt in the Central Government; Directorate of Enforcement asked to supply to petitioners 3(ii) Copies of search copies of the documents. (Received warrants relating to all by the petitioner on 29-4-1986.) searches effected in connection with alleged seizures;
3(iii) Copies of the Enclosed along with Annexure 'K' statements of various dated 14-5-1986 but actually persons recorded by the received by petitioners on Customs authorities in 19-5-1986. respect of the alleged seizures. These, inter alia, include my father's/my statement recorded before Shri O. P. Chopra, Superintendent, Customs (Preventive), New Delhi;
3(iv) Copies of statements or No such statements recorded and record of inquiries made with hence no question of the supply S/Shri Om Prakash and Hari Raj reasons not mentioned for not Gupta, to whom foreign currency recording those statements. to the tune of Rs. 4 lakhs Dollars and 1 lakh Dollars respectively is said to have been sold, and M. S. Arora, Jetha Nand, Hari Om and Amar whose names find mention in the grounds of detention. In case neither any inquiries were made nor any statements were recorded, the reasons therefore may kindly be intimated;
3(v) Documents, material Information asked for available circumstances, etc. in the grounds of detention. leading to the inference as drawn in para 28 of the grounds of detention that the name Rajinder Aggarwal -
"....... appears to be a fictitious name and it was you and your father Dharam Pal Gola who were having dealing with Mahesh Gupta of Bombay and not with any person named Rajinder Aggarwal."
(4) If the following Documents relied upon already placed before the supplied to the petitioners along detaining authority :- with grounds of detention.
4(i) Representation dated the 19th/21st October 1985 filed in the Court of ld. Addl. Chief Metropolitan Magistrate, New Delhi.
4(ii) My father Shri Dharam Pal Gola's/my representation dated 21-1-86 to the ld. Superintendent, Customs (Prev), New Delhi.
4(iii) My father Sh. Dharam Pal Gola's/my anticipatory bail application dated the 14-2-86 filed in the Court of the Ld. Addl. Sessions Judge, New Delhi.
4(iv) Orders dated 15th February, 1986 and 20th February, 1986 of the Court of learned Addl. Sessions Judge, New Delhi.
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7. From the above it would appear that the copies of the search warrants had been made available to the petitioners on 29-4-1986 before the rejection of their two representations dated 16-4-1986 and 23-4-1986 where the documents required in para 3(iii) were received by them on 19-5-1986 along with the rejection letters both dated 14-5-1986 whereby their representations has been rejected. The grounds of detention are dated 31-3-1986 and they were served immediately on the petitioners and they sought the documents much later on 16-4-1986 and even in the second representation dated 23-4-1986, as also pointed out above, reserved their right to supplement that representation on receipt of the information/documents demanded, if the need so arose. There could be no difficulty in the petitioners' making a still further comprehensive representation, if they so desired to the detaining authority and the Central Government after receipt of the aforesaid documents and the information from the detaining authority. Regarding the information sought in para 4 of Annexure 'J' whether certain documents have been placed or not before the detaining authority, the reply that the documents relied upon had been supplied to the petitioners along with the grounds of detention necessarily implies that whatever documents were relied upon in the grounds of detention and supplied to the petitioners were there before the detaining authority for its perusal and even perused.
8. Copies of statements demanded in para 3(iii) (Annexure 'J') could not be supplied as no such statements were recorded. The giving of any reason for not recording those statements looks redundant and the omission to give the same to the petitioners cannot be relied upon by them for the reason that the grounds of detention had not relied upon any such statements. Material not relied upon in the grounds of detention cannot be demanded by the detenu from the detaining authority and the detaining authority is not bound to supply the same. In Mst. L. M. S. Ummu Saleema v. B. B. Gujaral, it has been held that "every failure to furnish copy of a document to which reference is made in the grounds of detention under S. 3(1) of the Act is not an infringement of Art. 22(5), fatal to the order of detention, and it is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Art. 22(5)." So when no statement was recorded nor relied upon in the grounds of detention, the reasons for such omission cannot be asked for by the detenus nor is the detaining authority under any obligation to furnish the same to them.
9. The demand for material or circumstances or documents etc. leading to the inference as drawn in para 28 of the grounds of detention that the name of Rajinder Aggarwal appeared to be fictitious name and that it was the petitioners who were having dealings with Mahesh Gupta of Bombay and not with any other person named Rajinder Aggarwal made in para 3(v) of Annexure 'J' was replied rightly that the same was available in the grounds of detention. The perusal of the grounds of detention shows that there was evidence before the detaining authority that Mahesh Gupta of Bombay used to send the petitioners foreign currency from Bombay which the petitioners used to sell to different persons in Delhi, after keeping a premium of 20 to 50 paise per dollar. When Mahesh Gupta was examined by the Officer of the Enforcement Directorate, Bombay, he stated that he arranged to send the foreign exchange in question as directed by one Rajinder Aggarwal of Delhi and he was to get some commission from Rajinder Aggarwal and that the foreign exchange was purchased by Rajinder Aggarwal himself while his (Mahesh Gupta's) job was restricted to sending the same through his servant Jagdish. No person with the name of Rajinder Aggarwal could be located at Delhi as no specific address of this person was given by Mahesh Gupta and it was under these circumstances that the detaining authority formed the opinion that Rajinder Aggarwal appeared to be a fictitious name and that it was petitioners who were having dealings with Mahesh Gupta of Bombay and not with any person named Rajinder Aggarwal. So, whatever material was available with the detaining authority, as aforesaid, finds mention in the grounds of detention, and if there was no other material with the detaining authority for reaching that conclusion, there was no question of the supply of the same to the petitioners. All this also demolishes another contention of the learned counsel for the petitioners that the orders of detention were vitiated for non-application of mind in respect of this particular matter.
10. The information demanded in para 3(i) of Annexure 'J' is in respect of the date of initiation of the detention proposal and its receipt with the Central Government. This material finds no reliance in the grounds of detention and, thus, could not be asked for by the petitioners from the detaining authority for the purpose of making an effective representation against the order of detention.
11. The Advisory Board met on 27-5-1986. The documents subject-matter of para 3(ii) and (iii) of Annexure 'J' were admittedly supplied by the detaining authority to the petitioners on 19-5-1986 prior to the meeting of the Advisory Board and the same could be made use of by the petitioners before that forum.
12. For the abovementioned reasons it cannot be said that the petitioners are prevented from making an effective representation against the detention orders as guaranteed under Art. 22(5) of the Constitution of India.
13. It was then contended that there was a delay of about six months (3-10-1985 to 31-3-1986) in the passing of the detention orders from the date of the alleged incident and this delay vitiated the detention orders as the same had not been satisfactorily explained and further that there was no explanation whatever for the periods from 3-10-85 to 13-1-86 (31/3 months) and 1-2-86 to 31-3-86 (2 months). It was also pointed out that on account of the aforesaid delay of six months there was left no proximity between the alleged prejudicial activity of the petitioners and the passing of the detention orders against them and that the satisfaction of the detaining authority in that regard was not genuine and that the detention was purely punitive. It was further contended that notwithstanding whether the delay aforesaid was satisfactorily explained, the preventive purpose for which the orders of detention were passed was nevertheless frustrated. The additional affidavit deposed to by S. K. Choudhary, Under Secretary, Department of Revenue, Ministry of Finance, Government of India, New Delhi and filed by the respondents gives the explanation in its para 3 and it would be desirable to set out the same and is reproduced below :-
"That there is absolutely no undue delay in passing of the detention order. The time taken is due to investigation and examination of the case and preparing of the photo-copies and translation of documents etc. It is submitted that after completing the investigation, proposal was sent on 14-1-86 by the Zonal Office of the Directorate of Enforcement to the Hqs. of the Directorate, which in turn sent the same to the Dept. of Revenue on 21-1-1986. The said proposal was considered by the screening committee on 31-1-1986. Thereafter, the Photostatting work of the documents, as also the translation and the cyclostyling work was undertaken. Also some documents were got obtained from Bombay. After finishing all this work, the matter was placed before the detaining authority who passed the detaining order on 31-3-86. It may be submitted that copies of hundreds of documents were got prepared besides undertaking translation of several documents. In the circumstances, there is absolutely no undue delay in passing of the detention order.
Sd/-
Deponent."
14. The perusal of the aforesaid explanation shows that the respondents have given the explanation regarding the explanation for all the three stages, viz. (i) investigation, (ii) the process of the proposal including its consideration by the screening committee, and (iii) passing of the detention order. The case appears to be quite a huge one involving much of investigation at Delhi as well as at Bombay and a number of witnesses. After the consideration of the proposal by the screening committee on 31-1-86 till the passing of the detention orders on 31-3-86 much work in respect of the finalisation of the Photostatting, translation and cyclostyling work of a number of documents was also to be done. The aforesaid explanation talks of the preparation of copies of hundreds of documents besides translation of several documents. Thus, the entire delay appears to have been satisfactorily explained.
15. The contention of there being no proximity between alleged prejudicial activities of the petitioners and the date of the orders of detention as also the preventive purpose of the detention orders having been frustrated on account of delay aforesaid, does not commend itself for the reason that the allegations of sale and purchase of foreign exchange levelled against the petitioners are, from their very nature, continuing ones and not limited or restricted to any particular period and, thus, the delay could not snap the tie between the prejudicial activities of the petitioners and the orders of detention.
16. It was then contended on behalf of the petitioners that there was non-application of mind on the part of the detaining authority inasmuch as, although the detaining authority was alive to the fact that one of the petitioners namely D. P. Gola had given detailed account of the seized currency to the Enforcement Officer, it
(i) did not enquire into whether the Enforcement Officer had verified the accounts, if so,
(ii) what was the result, and
(iii) the Enforcement Officer had not conducted the verification, what was the reason.
17. It was also contended that all relevant material ought to have been taken into account by the detaining authority before passing the order of detention. In the counter-affidavit it is stated that this ground is non-existent and it is further pointed out therein that the detaining authority definitely applied its mind while dealing with the letter dated 21st January, 1986 from D. P. Gola and that the accounts produced by him as legal accounts of the seized Indian Currency, on a bare reading appeared to be concocted and there were no reasons to accept the same, whereas in a statement dated 3rd October, 1985 D. P. Gola had admitted the seized Indian Currency to be part of the sale proceeds of foreign exchange which statement further appeared to be authentic than the manner in which the Indian Currency was concealed, was considered. It is further pointed out in this affidavit that these accounts had been sent by Shri D. P. Gola to the Enforcement Directorate as late as 21st January, 1986 whereas the above-mentioned statement had been recorded much earlier on 3rd October, 1985. This explanation in the counter-affidavit looks convincing and the ground in the writ petition bereft of force.
18. It was then contended by the learned counsel for the petitioners that there was non-application of mind inasmuch as the material relied upon in the grounds of detention was conjectural and contradictory inter se and thus technically vague and furthermore the prejudicial material which affected the satisfaction of the detaining authority in passing the orders of detention was not communicated or disclosed in the grounds of detention and thus the detenus were deprived of their right to rebut the same and to avail of the opportunity of an effective representation/hearing before the Advisory Board. The perusal of the grounds of detention negatives the contention regarding non-application of mind on the part of the detaining authority. The material relied upon in the grounds of detention is not conjectural or contradictory inter se so as to affect materially the subjective satisfaction of the detaining authority. The contention on behalf of the petitioners was again in respect of the accounts submitted by the petitioner D. P. Gola but this point has already been dealt with above. It was pointed out by the learned counsel for the respondents that the Advisory Board had also examined these accounts in great details and that the hearing before the Advisory Board was extended/adjourned to the second day only because the detenus wanted to justify these accounts which actually they could not. There, thus, appears no force in these grounds.
19. Then contention was raised against the orders of detention as having been motivated by mala fides on the part of the Enforcement Directorate and the Customs (Preventive) by asserting that till about January, 1986 some of these officers were constantly harassing the petitioners and demanding large sums of money and threatening them with dire consequences including their detention under the COFEPOSA but the petitioners successfully resisted to succumb to their pressure, and after trying their best to extract large sums of money over a couple of months, they made proposal for the detention and this fact would be borne out from the fact that the detention was ordered after about six months of the alleged incident. Counter-affidavit deposed to by Shri S. K. Chaudhary, Under Secretary, Ministry of Finance, Government of India, New Delhi, and filed by the respondents rebuts all these allegations as totally wrong and denied as motivated and an afterthought. The grounds of delay in passing the detention order has already been discussed and the delay has not been found to be unjustified. However, no mala fides have been alleged against the detaining authority and consequently the further contention of the petitioners that when mala fides are alleged, the counter-affidavit must be by detaining authority himself, is not warranted. The detenus have failed to show/prove the mala fides as alleged.
20. The next contention of the learned counsel for the petitioners was that the basis of the grounds of detention was different from that of the detention orders. The detention orders used the following words :
"........ with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange ......."
21. The grounds of detention used the following words :
"....... with a view to preventing you from indulging in activities prejudicial to the augmentation of country's foreign exchange resources ......"
22. There appears hardly any difference much less material difference between the two expressions used in the orders of detention and in the grounds of detention vis-a-vis the petitioner, and the contention that one is wider than the other, looks idle.
23. It was then contended that there was long and undue delay in the consideration of the representations of the petitioners by the respondents and that vitiated the detention orders. There has not been any undue delay in the consideration of the representations which were three each submitted by both the petitioners. Both the detaining authority as also the Sponsoring Authority acted promptly while considering the disposal of the representations. Whatever time was taken, was for collecting the required material from other departments and also in obtaining the comments of the Sponsoring Authority. One representation was made on 16th April, 1986 and the other on 23rd April, 1986 and the same were disposed of on 14th May, 1986. Para No. 1 of the Additional Affidavit filed by the respondents gives the complete explanation from day-to-day as the same were dealt with on day-to-day basis and one does not find that the consideration of these representations suffered from callousness or inaction. This ground has no force.
24. The last contention urged on behalf of the petitioners was the withholding of the relevant material favorable to the detenus. This contention was controverter by the learned counsel for the respondents. The question of supply of various documents and information sought by the petitioners from the respondents has already been dealt with in this judgment and there appears no force in this ground.
25. No other grounds was urged and in view of the above discussion, there appears no merit in these writ petitions and so the same are dismissed.
26. Petitions dismissed.