Patna High Court
Trijugi Nath Agarwal vs State Of Bihar on 9 May, 1988
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT S.N. Jha, J.
1. By this application under Articles 226 and 227 of the Constitution of India, the petitioner has challenged his detention order dated 29.7.1984 passed under Sub-section (1) (ii) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short 'the COFEPOSA Act') as contained in Annexure-1 appended to this appliction and has prayed for issuance of a writ of habeas corpus for his release.
2. The facts relevant for disposal of this application, in short, are that on receipt of secret information Customs Preventive Party, Patna reached Patna Junction railway station in the night of 8th/9th February, 1984 and at about 00.30 hours apprehended two persons while they were coming out of 2nd class booking counter after purchasing tickets for Allahabad. The apprehended persons disclosed their identity as one Chandra Shekhar Choudhary son of late Sukhdeo Choudhary of Mohalla Saraiya Ganj in the district of Muzaffarpur and the other as Prabhu Prasad son of Shri Jhakhar Sah of village Jamundhar, P.O. Oraiyan in the district of East Champaran. In course of checking, smuggled Chinese solid gold pieces were recovered from special cavities in the heels of the slippers of both the afore-mentioned apprehended persons and from the special cavities in the brief-case of the said Chandra Shekhar Choudhary. As it was very odd time (00.30 hours) and the place of detention was railway station, the party did not think it safe for detail search and as such the apprehended persons alongwith their belongings were brought to the Central Revenue Building, Patna where thorough search was made in presence of two independent witnesses. On detail search, in all 16 pieces of smuggled Chinese primary gold weighing 1498.5 grams valued at Rs. 2,67,730/- were recovered from their possession. No paper in support of illicit importation of foreign gold into India could be produced by the afore-mentioned persons. Hence the recovered gold was seized after observing all necessary formalities. The aforesaid apprehended persons after interrogation were produced before the Chief Judicial Magistrate, Patna who remanded them to jail custody. Subsequently, they were released on bail.
3. Both the afore-mentioned apprehended persons in their statements dated 9.2.1984 confessed their guilt and stated that they reached Patna junction from Muzaf-farpur in the evening of 8th February, 1984 and they were to proceed for Allahabad by Assam Mail but were intercepted by the Customs officials as soon as they came out after purchasing tickets from the booking counter. In their statements, both of them stated that they were carrying the recovered gold from the petitioner of Chatta Bazar, Muzaf-farpur to one Sri Anil Kumar of Pandariya, Allahabad. They also disclosed in their statements that they were employees of the petitioner who has one licenced gold/silver shop under the name and style of M/s. Sanjay Kumar Vivek Kumar Agarwal situate at Chat-ta Bazar, Muzaffarpur. According to their statements, the financier and owner of the seized gold was the petitioner who indulges in such illicit business after smuggling foreign gold from Nepal.
4. The aforesaid Chandra Shekhar Choudhary in his further interrogatory statement on 31.3.1984 also disclosed that in August, 1983 he had sold some silver belonging to this petitioner at the hands of Surendra Trading Company, Delhi for Rs. 90,000/- and the bank draft was granted by the said Surendra Trading Company in the name of the firm of the petitioner which was deposited by Chandra Shekhar Choudhary in Bank of India, Saraiya Ganj, Muzaffarpur on 4.8.1983 on the direction of this petitioner. Chandra Shekhar Choudhary after putting his signature on the back of the said cheque, obtained the money and handed over the amount to the petitioner in the aforesaid shop. The correctness of this statement of Chandra Shekhar Choudhary was fully established during the course of investigation which I will deal later on. He has further stated that in November, 1983 he visited Delhi with 70 Kgs. silver for selling them to Sansar Babu of Chandni Chowk, Delhi and the sale proceeds thereof were collected a week later by the said Prab-hu Prasad, an employee of this petitioner. He further stated that on 12.12.1983 again he was on his way to Delhi alongwith one Jagannath Prasad with 70 Kgs. of silver from the same aforesaid shop, but the consignment was seized at Muzaffarpur.
5. The aforesaid Prabhu Prasad stated in his interrogatory and supplementary statement both dated 9.2.1984 that he is in the employment of the petitioner since August, 1983 on a monthly salary of Rs. 250/- and when he is sent outside for such type of mission, he is paid fooding charge in extra. According to his statement, on 9.1.1984 he carried 3 pieces of gold from the said shop of the petitioner and sold the same to one Sri Surendra Agarwal of Allahabad and the sale proceeds amounting to Rs. 90,000/- was handed over by him in cash to the petitioner. He further stated that again on 23.1.1984 he went to Delhi to sell 65 Kgs. silver given to him by the petitioner.
6. On the basis of the aforesaid statements and in connection with the aforesaid case, a raid was conducted in the house of the petitioner on 9.2.1984 and 15.2.1984 but no incriminating article was recovered. The petitioner was also interrogated on 19.3.1984 by the Assistant Collector of Customs (Preventive), Muzaffarpur who denied his complicity in the smuggling of gold seized on 8th/9th February, 1984 and also denied that the aforesaid apprehended persons were his employees.
7. Thereafter in course of investigation the statement of Smt. Maya Devi wife of aforesaid Chandra Shekhar Choudhary and the statement of Jhakhar Sah father of Prabhu Prasad was recorded on 31.5.1984 which established without doubt the aforesaid two apprehended persons were the employees of the petitioner. The photo of the petitioner was also recognised by the aforesaid Smt. Maya Devi and she stated that the petitioner used to come to their house on the occasion of festival and his wife was also known to them. She further stated that when her husband was acquitted in a case of silver smuggling, the petitioner's wife had sent "Prasad" in a tiffin box on which Sheetal Prasad Krishna Murari, Mirzapur was engraved and which she had not been able to return as yet. The said tiffin box was also taken over by the Customs officials for inquiry and on inquiry it was revealed that the owner of M/s. Sheetal Prasad Krishna Murari, Mirzapur was Sri Krishna Murari Agarwal, who is the uncle of this petitioner.
8. One Ranjit KumarSah, a restaurant owner of Saraiya Ganj, Muzaffarpur was also interrogated who also stated on 31.5.1984 that Chandra Shekhar Chouhary is an employee of the petitioner.
9. In the aforesaid circumstances, the detaining authorities were fully satisfied that the petitioner smuggles gold from Nepal and sells it illegally through his men. Therefore, in exercise of the power conferred under Sub-sections (i) and (ii) of Section 3 of the COFEPOSA Act, respondent No. 2 Deputy Secretary, Home (Special) Department, Government of Bihar, passed the detention order of the petitioner which has been challenged in this application.
10. Mr. Braj Kishore Prasad, learned counsel, appearing on behalf of the petitioner has assailed the impugned order of detention on the ground that the detaining authority was totally ignorant of the fact and all the materials were not placed before him. Therefore, there was no proper application of mind in passing the detention order. As such, the order of detention is illegal and fit to be quashed. It was further submitted that there was delay of 7 1/2 months in passing the detention order because the incident took place in the night of 8th/9th February, 1984 and the detention order was passed on 29.9.1984. Therefore, the delay of 71/2 months will also render the detention order illegal. According to him, no explanation for inordinate delay in passing the detention order has been given on behalf of the State. It was further submitted that the detention order was passed on 29.9.1984 but the petitioner was arrested after three years i.e. 21.11.1987 without any consideration of the fact whether it was necessary to detain the petitioner after expiry of more than three years.
11. Before dealing with these points, I may refer here the counter-affidavits filed on behalf of the State as well as on behalf of the Union of India through the Collector of Customs, Indo-Ncpal Border, Central Revenue Building, Patna.
12. The State Government in its counter-affidavit has stated that the detention order and the grounds of detention were issued on 29.9.1984 against the petitioner. The grounds of detention is Annexure-2 appended to. this application. In the counter-affidavit, it has been stated that the house of the petitioner was searched and interrogation was made by the Customs Department in view of the statements made by' the afore-mentioned two apprehended persons. In para 17 of the counter-affidavit it has been stated that the petitioner was absconding and evading his detention. Therefore, the detention order could not be served earlier. The State Government was making every effort to trace him out. Since the petitioner was concealing himself to avoid the service of detention order, he made himself liable to proceedings under Sections 82,83, 84 and 85 of the Code of Criminal Procedure (for short the Code) and the State Government reported the fact to the Chief Judicial Magistrate, Muzaffarpur for necessary action. The State Government also issued gazette notification under Section 7(l)(b) vide No.144 dated 23.1.1985 directing the petitioner to appear before the Chief Judicial Magistrate, Muzaffarpur within 30 days from the date of publication of the said notification failing which the petitioner shall be liable for punishment and after a great effort, the petitioner was traced out.
13. In the counter affidavit filed on behalf of the Union of India, it has been stated that the grounds for detention itself clearly shows that the petitioner was supplied with all the relevant documents relied upon for his detention under the COFEPOSA Act with a request to make a representation to the Government, if so desired. Since the petitioner was an absconder, he could not be arrested in the instant case before 21.11.1987 and as such it can not be said that the detention of the petitioner is illegal and invalid.
14. It was further stated that the detaining authority has fully applied his mind on the facts and circumstances of this case and after having been fully satisfied that the detention of the petitioner in the instant case was justified, passed the impugned order against the petitioner. In reply to para 8 of the writ application, it has been stated in the counter-affidavit that in pursuance of the anticipatory bail order dated 23.2.1984, the petitioner executed bail bonds on 8.2.1984, but the detention order under COFEPOSA Act was passed much thereafter on 29.9.1984 and as such the statement made in the said para is not at all relevant for the purpose of determining the point at issue. It has also been stated that the detention order has been passed without application of mind is in-correct because on perusal of the grounds of detention, the involvement of the petitioner in the smuggling activities has been fully established and having been satisfied with the activities of the petitioner, the detaining authority passed the impugned order.
15. In support of his first contention, the learned counsel has relied upon a decision in the case of Sita Ram Somani v. State of Rajasthan and Ors., A.I.R. 1986 S.C. 1072 that the detenue is entitled to be released on the ground of non-application of mind to the relevant materials. In the aforesaid case, an order of detention was passed against the detenue under the COFEPOSA during the pendency of prosecution under the Act against him and another co-accused for illegal possession of foreign gold and foreign exchange. The documents revealing that they were granted bail and they had retracted their confession were not placed before the detaining authority. It was held that since the relevant material was not placed before the detaining authority, and the same was not considered, thus there was non-application of mind by the authority to the relevant material and, therefore, the detention was illegal. Mr. Prasad on the basis of the said decision vehemently argued that it is true that no one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the petitioner. But, as certain vital facts were not brought to the notice of the detaining authority, and, therefore, those facts were not taken into consideration and as such the impugned order is liable to be quashed. According to the learned counsel, the petitioner was granted anticipatory bail by this Court vide order dated 23.2.1984 in Cr. Misc. No. 1801/1984 and thereafter he surrendered in the court of Chief Judicial Magistrate, Patna and executed bail bonds on 8.3.1984 which was accepted by the Court and these facts were not brought before the detaining authority and not considered by him before passing the detention order. The facts of the aforesaid case is quite distinguishable with the facts of the instant case. In the case of (Sita Ram Somani v. The State of Rajasthan and Ors. (supra), the detenue along with one Om Prakash were arrested and produced before the Addl. Chief Judicial Magistrate on 2.1.1985. Bail was refused by the Magistrate but thereafter on application made by the two accused persons, the High Court of Rajasthan granted bail to both of them subject to certain conditions. One of the conditions was that the two accused should not leave India without permission by the learned Sessions Judge. The passport of the accused had already been seized by the Customs Department and the accused were at large from 19.1.1985 till 4.6.1985 when they were arrested under the-previsions of the COFEPOSA Act. In the aforesaid case, the detenue Sita Ram Somani was an accused in a case and he alongwith others were ar-rested and enlarged on bail by the High Court on certain conditions. These facts were not brought to the notice of the detaining authority. Therefore, Their Lordships held that there has been non-application of mind in passing-the detention order, because the relevant facts which would have weighed the satisfaction of the detaining authority one way or the other were not placed before him but in the instant case, the petitioner was not an accused in any case by that time and he was never arrested or kept in jail. He suo motu filed an application for anticipatory bail which was granted to him vide order dated 23.2.1984 and thereafter the petitioner surrendered in the court executed bail bonds on 8.3.1984 which was accepted by the Court as indicated above. It appears from the counter-affidavit filed on behalf of the State that the petitioner was absconding and evading his detention. There is nothing on the record to show that the petitioner ever appeared in the Court in any case after his release on anticipatory bail. It was submitted on behalf of the State that the State Government was making every effort to trace him out since he was concealing himself to avoid the service of detention order and as such made himself liable to certain proceedings under Sections 82,83,84 and 85 of the Code and then the matter was reported to the Chief Judicial Magistrate, Muzaffarpur vide letter No. 171 dated 24.1.1985 for necessary action. In that view of the facts, in my opinion the case of Sita Ram Somani v. The State of Rajashtan and Ors. (supra) is quite distinguishable and will not help the petitioner.
16. Mr. Prasad has also relied upon a decision in the case of Ram Chandra Mitruka v. The State of Bihar and Anr., 1986 B.B.C.J. 639: 1986 PUR 942. In the aforesaid case S.B. Sanyal, J. has quashed the order of the petitioner of the said case on a finding that the said case was fully covered by the decision in the case of Sita Ram Somani v. The State of Rajasthan and Ors. (supra), but, as I have already held that the aforesaid Somani's case is quite distinguishable from the facts of this case. Therefore, this case will also not help the petitioner.
17. Mr. Prasad has also relied upon a decision in the case of Anant Sakharam Rant v. State of Maharashtra and Ors. A.I.R. 1987 S.C. 137. In the aforesaid case, the petitioner was detained pursuant to an order of detention passed under Section 3(2) of the National Security Act, 1980. In that case one contention was strongly pressed by the petitioner's counsel that the detaining authority was not aware at the time of detention order that the detenue had moved for bail in the three pending cases and that he was enlarged on bail on 13.1.1986,14.1.1986 and 1.5.1.1986. Their Lordships after going through the detention order observed that there was absolutely no mention in the order about the fact that the petitioner was under-trial prisoner and that he was arrested in connection with three cases and his application for bail were pending and that he was released on three successive days in three cases. Therefore, this indicates a total absence of application of mind on the part of detaining authority and on this score alone, the writ application was allowed. But, as I have already indicated above that the petitioner was not an under-trial prisoner in any of the cases, therefore, the petitioner cannot take the help of this case in the instant case as well.
18. I may point out here that the granting of anticipatory bail and the execution of the bail bonds by the petitioner was not at all relevant for the purpose of determining the point at issue on the face of overwhelming materials available against the petitioner. During the course of interrogation, the afore-mentioned two apprehended persons made categorical statements that they were employees of the petitioner who indulges in such activities since long. Of course, the petitioner denied any complicity with the crime and he also denied that the afore-mentioned apprehended persons were his employees but the wife of said Chandra Shekhar Choudhary and the father of Prabhu Prasad in this statements have established these facts that the aforesaid two apprehended persons were the employees of the petitioner. The photo of the petitioner was also recognized by the wife of Chandra Shekhar Choudhary and she has also stated that the wife of the petitioner also sent "Prasad" in a tiffin box on which the name of Sheetal Prasad Krishna Murari, Mirzapur was engraved and during the course of investigation, it came to light that owner of the said M/s. Sheetal Prasad Krishna Murari was the uncle of this petitioner. The statements of one Ranjit Kumar Sah, an owner of the restaurant of Saraiya Ganj, Muzaffar-pur, who has no concern at all with the petitioner, has also stated that the said Chandra Shekhar Choudhary was an employee of the petitioner. In my opinion, there were ample materials before the detaining authority to be satisfied about the necessity of passing the impugned order.
19. Secondly it was argued that there has been a gap of 7 1/2 months in passing the detention order from the date of incident which has not been properly explained. Therefore, the impugned order must be struck down. In support of his contention, Mr. Prasad has relied upon a decision in the case of Sk. Serajul v. State of West Bengal, A.I.R. 1975 S.C.1517. In the said case, the petitioner had challenged his detention order passed under Section 3 of the Maintenance of Internal Security Act, 1971. It was based on the subjective satisfaction of the District Magistrate where it was felt necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. It was argued that the order of detention was passed after 7 months of the last prejudicial activity and no satisfactory explanation for delay has been furnished. In the aforesaid case, explanation was forth-coming from the affidavit filed on behalf of the Government of West Bengal as to why the order of detention was made as late as August 24,1972 when the last incident occurred on January 15, 1972 and, therefore, the detention order was quashed. But in the instant case, satisfactory explanation has been given in the counter affidavit filed on behalf of the State. In the instant case, the two persons were apprehended in the night of 8th/9th Feb. 1984 at about 00.30 hours at Patna Junction Railway Station and they were brought to the Revenue Building and in course of checking, smuggled Chinese gold pieces were recovered. The apprehended persons were interrogated and their statements were recorded on 9.2.1984 who confessed their guilt. They were further interrogated on 31.3.1984. It has been stated in the counter-affidavit that on the basis of statements and report, the house of the petitioner was searched and interrogation was made. In the counter-affidavit, it has also been stated that the statements of Smt. Maya Devi wife of Chandra Shekhar Choudhary and the statement of Jhakhar Sah, the father of Prabhu Prasad was also recorded on 31.5.1984 and thereafter the petitioner was absconding and evading his detention. It was submitted on behalf of the State that there has been no delay in passing the order because since the date of apprehension of two aforesaid persons on 9.2.1984, the customs officials were making investigation and they had to go from one town to another to verify the genuineness of the statements made by the aforesaid two apprehended persons. In the instant case, on perusal of the entire record, it is clear that the passage of time from the date of apprehension of the aforesaid two persons and the making of the order of detention in respect of the petitioner was not on account of any laches on the part of the agencies concerned but was the result of a full and detailed consideration of the facts revealed through investigation and interrogation of a large number of persons who were someway connected with the activities in question. Therefore, the delay of 7 I2 months Cannot be termed as inordinate delay in passing the impugned order of detention.
20. It is, no doubt, true that where a long period has elapsed between the date of incident and the date of order of detention, an inference can be drawn legitimately that there is no nexus between the incident and the order of detention and the order may be liable to be struck down as invalid but there is no hard and fast rule as to what is the length of time which could be recorded sufficient to snap the nexus between the order and the detention. In the instant case, in order to verify the genuineness of the statements of the two aforesaid persons, the customs officials had to go to Muzaffarpur, Allahabad and Ors. towns. Therefore, it cannot be said that there has been long delay in passing the order of detention and where satisfactory explanation has been given, in my view, it would not invalidate the order of detention. I am of the view that here the lapse of time between the date of incident and the date of order of detention has been sufficiently explained by the detaining authority. Hence, in my opinion, the delay of 7 1/2 months will not vitiate the detention order.
21. On this point, the learned counsel appearing on behalf of the State has relied upon a decision in the case of Smt. K. Aruna Kumari v. Govt. of Andhra Pradesh and Ors., A.I.R. 1988 S.C. 227. In the aforesaid case, the detenue, a railway contractor indulged in clandestine business of diversion of levy cement. He was found to be committing the offence of transferring the levy cement into non-levy cement bags for its diversion to works not intended. The Inspector of Police, Vigilance Cell made a surprised visit in presence of the witnesses to the site of private building under construction and found the allegations to be correct and the detenue was detained under Section 3 of the Prevention of Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980. One of the point straneously urged on behalf of the petitioner that in view of the long delay of about 5 months in passing of the impugned order from the alleged date of incident, the same was fit to be quashed. Their Lordships after considering the facts and circumstances of the case held that the delay of 5 months in passing of the detention order was satisfactorily explained. The delay cannot by itself vitiate the decision to detain a person. In this connection, reliance can also be placed upon a decision in the case of Smt. Hemlata Kantilal Sah v. State of Maharastra and Anr., A.I.R. 1982 S.C. 8 where Their Lordships have held that the 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 and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. I have already indicated above that the delay has been properly explained. On the facts of this case, it can be held that the delay has been satisfactorily explained by the authority in its affidavit and it has not vitiated the detention. Therefore, this point urged on behalf of the petitioner is rejected.
22. Now turning to the last submission made on behalf of the petitioner that the order of detention which was made on 29.9.1984 i.e. more than three years before its execution on 21.11.1987 must be considered to have lapsed its force and cannot be executed without a fresh application of mind by the detaining authority. It is, no doubt, true that the petitioner was arrested after three years and the order could not be executed immediately because the petitioner was absconding and could not be apprehended despite of proclamation. In the counter-affidavit, filed on behalf of the State, it has been stated on oath that since the petitioner was evading detention and the Government was trying hard to trace him out and ultimately he could be detained on 21.11.1987 and forwarded to Special Central Jail, Bhagalpur the same day. In para 17 of the counter-affidavit filed on behalf of the State, it has been stated that the petitioner was absconding and evading his detention and the order of detention could not be served earlier. Since the petitioner was concealing himself to avoid the service of detention order, he made himself liable to proceeding under Sections 82, 83, 84 and 85 of the Code. The State Government also reported the fact to the Chief Judicial Magistrate, Muzaffarpur for necessary action. The State Government also issued notification under Section 7(1)(b) of the COFEPOSA Act directing the petitioner to appear before the Chief Judicial Magistrate, Muzaffarpur within 30 days from the date of publication of the notice failing which he shall be liable for punishment and after a great effort he was traced out. In these circumstances, it cannot be held that the order of detention which was executed after three years, has lost its force. It has been held in the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu and Anr. (1979) I.S.C. Cases 465 that the purpose of detention under the COFEPOSA Act is not punitive but preventive. There must be a "live and proximate link" so that if there is a long and unexplained delay between the order of detention and the arrest of the detenue, the order of detention may be struck down unless the grounds indicate a fresh application of mind by the detaining authority to the new situation and changed circumstances. But where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the detenue in evading arrest, there is warrant to consider that the link is not snapped. On the contrary, it could be strengthened and that was what precisely happened in the instant case.
23. In the aforesaid case, the detenue was found to be absconding and action was taken pursuant to Section 7 of COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was also exhibited in Cinema hall. A reward was also announced for his apprehension. Despite all these facts, he could not be arrested until he surrendered in the Court. In my view, the instant case is fully covered by the decision in the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu and Anr. (supra) and I have no hesitation in over-ruling the submission of Mr. Prasad based on the delay in the execution of the order of detention. The affidavit filed on behalf of the State shows that the petitioner was absconding and evading his arrest despite of the fact that he was on anticipatory bail.
24. Taking into consideration all these facts and circumstances of this case, I do not find any merit in this application for quashing the impugned order of detention. This application is accordingly dismissed.
N.P. Singh, J.
25. I agree.