Delhi High Court
Dinabandhu Mondal vs Union Of India And Others on 29 July, 1989
Equivalent citations: [1989]65COMPCAS39(DELHI)
JUDGMENT
M.K. Chawla J.
1. The Officer-in-charge of Police Station, Habra, had definite information that some contraband articles were being carried in an Ambassador Car No WBJ 8475 from Hakimpur (a place in India on Indo- Bangladesh border) to Calcutta. Immediately, thereafter, he along with two sub-inspectors and other officers kept a watch on the Baanipur-Asrafabad Road. At about 13.15 hours on February 27, 1986, the police officers noticed the said car coming from the direction of Hakimpur. The officer- in-charge signalled to the said car to stop. The driver tried to speed away the vehicle with the passengers but it was intercepted immediately by the police vehicle. At that time, there were four occupants in the car No WBJ 8475, namely, S/Shri Dinabandhu Mondal, Prosenjit Mondal, Monoranjan Ghosh and Bholanath Karmakar, the driver. The search of the vehicle resulted in the recovery of primary gold of foreign origin with number 9999, in 19 pieces of 10 tolas each and one piece of 10 tolas with number 9990 kept concealed in a black coloured bag made of cotton and placed in the specially designed cavity on the body of the said car below the dashboard. A personal search of the occupants was also taken and articles besides currency notes of various denominations were taken into possession. In the meantime, the Customs Officers reached there and the Officer-in- charge, Habra Police Station, handed over twenty pieces of gold biscuits along with other recovered articles to them. In turn, the Customs Officers of the preventive unit seized the Ambassador car under section 110 of the Customs Act, and on reasonable belief that the twenty pieces of primary gold and two wrist watches, all of foreign origin, were illicitly imported into India took them into possession. All the four occupants of the car were arrested then and there.
2. In his statement under section 108 of the Customs Act, Shri Dinabandhu Mondal claimed the ownership of all the twenty pieces of gold biscuits of foreign origin and, inter alia, stated that he had started smuggling foreign gold since December, 1985, and from then he had brought at least 107 pieces of gold biscuits. On February 26, 1986, a man, namely, Fazlul Haque, came to him and handed over 20 pieces of gold biscuits and the petitioners in turn gave him Rs 1,00,000 in Indian currency. Then the 20 pieces of gold biscuits were kept in the secret cavity of his father's car No WBJ 8475. On March 27, 1986, he, along with his younger brother, Prosenjit Mondal left his place, Hakimpur, and at that time he did not know anything about the gold. On the way, Shri Monoranjan Ghosh, a person known to him before boarded the said car. Further, on the way, at Khaspur, his driver, Shri Bholanath Karmaker, boarded the car and started driving. However, at Baanipur Chowmatha, a signal was given by the police officers to stop. He, however, directed the driver to speed away but the car was later on intercepted and the search yielded in the recovery of the gold. He further stated that he smuggled those 20 pieces of gold biscuits of foreign origin from Bangladesh and, therefore, could not produce any lucid document. The other occupants almost narrated the same sequence which resulted in the recovery of the 20 pieces of gold, but they denied their involvement in the smuggling. In the course of the follow-up action, the residential premises of the accused persons were immediately searched but neither any valuable documents nor any incriminating material came to their possession.
3. On the basis of the facts and material which came to light, Shri M L Wadhawan, Additional Secretary to the Government of India, had no hesitation in holding that Shri Dinabandhu Mondal, the present petitioner, has been smuggling goods and engaging in transporting and concealing smuggled goods. Even though adjudication and prosecution proceedings under the Customs Act, 1962 are likely to be initiated, he is satisfied that the petitioner should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing him from smuggling goods and engaging himself in transporting and concealing smuggled goods. The said order was passed on June 24, 1986. This very order of detention which was served on the petitioner on October 22, 1986, is under challenge in the present writ petition. His prayer is for the issuance of a writ of habeas corpus or any other appropriate writ, order or direction under article 226 of the Constitution of India, to quash the detention, set aside the impugned order of detention and order his release forthwith.
4. The first and the foremost contention of learned counsel for the petitioner is that there is a complete non-application of mind by the detaining authority as it had not taken into consideration the bail applications and the conditional order of release of the petitioner by the High Court at Calcutta. Even though this fact has come into existence much prior to the order of detention, it did not find mention nor was it taken note of in the impugned order. According to learned counsel, a reasonable restriction has been placed on the detenu by the order on his bail application, which sufficiently prevented him from indulging in smuggling activities sought to be prevented by the impugned order. Had this fact been placed before the detaining authority, there was every likelihood of a change of mind. This ground by itself is fatal to the order of detention. The stand of the respondents is that it does not stand to reason that the detaining authority should take note of the fact that the person is on bail, as the intention of the impugned order is to restrict the movement of the person in order to prevent him from engaging in smuggling activities.
5. This stand, to my mind, is of no avail to the respondents. In order to elaborate this point and examine its consequences, one has to keep in mind a few relevant dates. The alleged incident is dated February 27, 1986. On the same day, the petitioner along with other persons was arrested and sent to judicial lock-up. On March 3, 1986, the present petitioner moved an application for his release on bail before the SDJM, Barasat. This application was rejected. He moved the second application on March 15, 1986, which on consideration met the same fate. The petitioner's third attempt for release on bail before the same court did not yield any positive result. After contest, this application was also rejected on March 29, 1986. His prayer before the Sessions Judge, 24 Parganas at Alipur, did not succeed. The order of release on bail reads as under :
"Let the two accused-petitioners be released on bail of rupees ten thousand with two sureties of Rs 5,000 each, one of whom should be local, to the satisfaction of the Sub-Divisional Judicial Magistrate, Barasat, on condition that they shall meet the I.O. on every Monday and Friday, for a period of four weeks from the date of their release."
6. In compliance with this order, the petitioner came out of prison on the same day.
7. During his detention, the petitioner has been served with a showcase notice on February 28, 1986. The detention order, as stated earlier, was passed on June 24, 1986. It was ultimately served on the petitioner on October 22, 1986. Since then, he is in jail.
8. The grounds of detention do not mention the fact of the filing of three bail applications before the SDJM, Barasat, another before the Sessions Judge, 24 Parganas, Alipur, and the last in the series before the High Court at Calcutta. The impugned order also does not mention or take note of the fate of these bail applications. Certainly, these most material documents, which had a direct bearing on the subjective satisfaction of the detaining authority, and should have been taken note of. Had these facts been placed before the detaining authority he might have come to a different conclusion.
9. It is true that at the time when the order is to be passed, it is for the detaining authority to consider as to what are the relevant circumstances and then to form his opinion thereon. But once an order of detention is challenged in a court the court then certainly has the jurisdiction to go into the question and to decide as to whether all the relevant circumstances have been considered by the detaining authority or not. In the present case, admittedly, the most material documents which have not been considered by the detaining authority are the bail applications and the orders passed thereon. Absence of consideration of these documents, to my mind, amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid. If the detaining authority had considering these documents, one cannot state with definiteness which way the subjective satisfaction of the detaining authority would have reacted. The conditional bail order of the High Court could have persuaded the detaining authority to desist from passing the order of detention since the restriction on the freedom of movement was sufficient to prevent him from indulging in smuggling activities. On this aspect, the Supreme Court in the latest decision reported as Anant Sakharam Raut v State of Maharashtra, , has settled the matter thus (p.138) :
"We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on January 11, 1986, January 14, 1986, and January 15, 1986. We have gone through the detention order carefully, There is absolutely no mention in the orders about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of the detaining authority while passing the order of detention."
10. The above said authority fairly and squarely applies to the facts of the present case and on that score alone I have no hesitative to hold that there was a complete non-application of mind on the part of the detaining authority to the relevant facts and circumstances which existed at the time of the passing of the order. This fact by itself is enough to vitiate the order of detention.
11. The next submission of learned counsel for the petitioner is that there is a long delay in the passing of the order of detention and also its execution on the petitioner. According to him, there is a delay of about four months in making up of his mind by the detaining authority in passing the order of detention and a further delay of four months in the service of the said order of detention on the petitioners. The respondents have denied that there is any undue delay in the passing of the detention order. Their case in the counter is stated thus :
"that the incident took place on February 17, 1986, the investigation continued thereafter, and statements were recorded in March, 1986. Thereafter, the cases were processed at various stages in Calcutta and in Delhi. There were translations to be made of various documents in Bengali and the order came to be passed on June 24, 1986. There is, therefore, no undue and unexplained delay in passing the order."
12. Their further stand is that this order could not be executed immediately as the detenu could not be traced. In that behalf, action under section 7(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was taken on September 15, 1986. Finally, the petitioner was detained on October 22, 1986. Therefore, the delay in execution of the detention order has been caused by the petitioner himself.
13. The question that requires going into at this stage is as to whether the explanation furnished by the respondents is satisfactory, bona fide and acceptable or not. In the case of Smt Hemlata Kaantilal Shah v State of Maharashtra , the court has laid down that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases, delay may be unavoidable. What is required by law is that the delay must be satisfactorily explained by the detaining authority.
14. It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention, and the order of detention may be liable to be struck down, as invalid, though there can be no hard and fast rule as to what is the length of time which should be regarded as sufficient to snap the nexus between the incident and the order of detention.
15. With this background, the explanation can be examined, Prima facie on the face of it, the explanation, if it can be called so, is devoid of any substance. It is not shown as to how much time was consumed in the investigation, and its completion, particularly, when most of the documents and statements have already come into existence at the time of the arrest of the petitioner and/or immediately thereafter on the search of the premises. It is not stated as to how many witnesses were examined and if so on what dates. It is also not made clear as to how bulky and in what numbers the documents were required to be translated in Bengali and to whom this job was entrusted. The affidavit of the person concerned should have been placed on record explaining the number of days it consumed in getting the documents translated in Bengali. In fact, there is no explanation in the eye of law and this delay of four months is quite fatal to the order of detention.
16. A delay of two and a half months was held to be fatal in the judgment of our own High Court in Bhupinder Singh v Union of India [1985] DLT 493. The Division Bench on this aspect concluded thus :
"As noticed earlier, in the return, there is no explanation about the delay in the official record from December 14, 1984, to February 28, 1985. We find ourselves unable to agree with counsel for the respondents that in the file, there is an explanation, much less a satisfactory explanation. In our opinion, the gap between December 14, 1984, to February 28, 1985, reveals a complete disregard of the requirement of urgently dealing with cases involving preventive detention. The official record is silent as to who was handling it between the said two dates. We cannot accept the arguments of Mr. Bagai that this period of two and half months was utilised for preparing the draft grounds. We consequently hold that the delay in this case remains unexplained."
17. Useful reliance can also be placed on the judgments in Sk Abdul Munnaf v State of W B , Laxman Khatik v State of W B , , Rabindra Kumar Ghosel v State of W B, , and Md Sahabuddin v District Magistrate . Applying the said ratio to the facts of the case in hand, I have no hesitation to hold that the detaining authority has not acted swiftly in matter and that there was no proximity between the prejudicial activity and the detention order. There is no worthwhile explanation for the delayed action. On this ground alone, the petition must succeed.
18. Then again there is a delay of near about four months in the execution of the order of detention on the petitioner. It is urged that the order could not be served on the detenu as he was not traceable. Here also the respondents have lost sight of the material fact that the release of the petitioner on bail was a conditional one. He was required to report/meet the Investigating Officer on every Monday and Friday for a period of one month from the date of his release which in this case is April 18, 1986. Thereafter, the case of the petitioner is that he has been attending the Court of the Magistrate regularly on every date of hearing. To this there is no denial. It is not explained as to how the detenu could not be traced when he has been attending the court and meeting the investigating officers as directed by the court. It is not explained as to which officer was deputed to serve the order of detention and how many times he made attempts to locate the petitioner. It is not their case that the petitioner has shifted his residence to another place or that any point of time, he came to know of the order of detention and tried to avoid its service. Even if it be presumed for the sake of argument that recourse to the provision under section 7(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was taken on September 15, 1986, for which there was no necessity, even then thereafter there is a long delay of 38 days for which no valid explanation is forthcoming.
19. The facts reveal that a very casual approach was given to an important order of detention and its due execution on the detenu. Prima facie, the explanation as disclosed in the counter-affidavit is not convincing. It reveals a complete disregard of the urgency it deserved, while dealing with a case of preventive detention. This circumstance by itself is enough to quash the order of detention.
20. Even though learned counsel for the petitioner has raised other points, to my mind there is no need to go into the same as on both the counts, the petition is liable to succeed.
21. As a result of the above discussion. I accept the petition and quash the order of detention. The petitioner be released forthwith unless required to be detained under any other orders of a competent court or authority.