In the High Court of Punjab and Haryana at Chandigarh ….. Criminal Writ Petition No.792 of 2007 ….. Date of decision :10.9.2007 Swaran Lata Jain …..Petitioner v. Union of India …..Respondent ….. Present: Mr. Vikram K. Chaudhri, Mr. Sant Pal Singh and Mr. Akshay Anand, Advocates for the petitioner. Mr. D.K. Bhatti, Advocate for the respondent. …… S.S. Saron, J. The petitioner by way of the present petition under Article 226 of the Constitution of India prays for issuance of a writ in the nature of Habeas Corpus and for setting aside the order of detention dated 8.3.1988 (Annexure-P.9) passed by the respondent under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (`Act' – for short) against her husband-detenu Joginder Pal Jain (hereinafter referred to as `the detenu'). The petitioner has submitted that the impugned order of detention dated 8.3.1988 (Annexure-P.9) has been executed after an inordinate delay on 16.7.2007 which is in violation of the fundamental rights on the detenu. The detention order inter alia records that the detaining authority is specifically empowered under Section 3(1) of the Act and was satisfied with respect to the detenu Joginder Pal Jain that with a view to prevent him from smuggling goods it is necessary that he be Cr. Writ Petition No.792/2007 [2] detained and kept in custody in District Jail, Faridkot. The husband of the petitioner, it is stated, is a mass popular leader of Moga. He remained Chairman of the Improvement Trust, Moga from 1994 to 2002 as well as the President of the Municipal Council, Moga. He contested the recently concluded Legislative Assembly Elections from the Moga Assembly constituency as a Congress candidate and defeated the candidate of the Shiromani Akali Dal. The detenu at present is a Member of the Legislative Assembly (MLA) from Moga constituency. On 29.1.1988, the detenu for boarding the Thai International Flight for Hong Kong had gone to the IGI Airport, New Delhi. He checked in with a card board carton as checked baggage and a brief case as hand baggage. There were other co-travellers including one Manohar Lal Grover who was also to travel to Hong Kong on the same flight. The said Manohar Lal Grover checked in with his baggage, which were a sea-green coloured suit case as checked baggage and a small hand bag as hand baggage. After checking in, the baggage of the said Manohar Lal Grover was searched by the Customs officials. In the course of search Indian and foreign currency was found, which was seized as it was being illegally exported without declaration Nothing incriminating is stated to have been found during search of the detenu. However, while the detenu was waiting for his turn the Customs Officer let off Manohar Lal Grover and the detenu was taken in custody. He was taken to the Customs office and detained there till 31.1.1988. It is alleged that the detenu was pressurized to write a statement that the sea-green coloured suit case and the foreign exchange belonged to him. Meanwhile, the residential and business premises of the detenu were Cr. Writ Petition No.792/2007 [3] searched for about 8 hours. The statements of the detenu and Manohar Lal Grover were recorded under Section 108 of the Customs Act, 1962 which it is alleged, were under coercion, duress and threat. The said Manohar Lal Grover was a clerk to the Deputy Commissioner, Faridkot. He has since died. On 30.1.1988, the detenu was produced before the Additional Chief Metropolitan Magistrate, New Delhi along with an application for grant of remand. It is stated that the detenu retracted from his statement obtained from him under duress. The copy of the application (Annexure-P.1) for judicial remand and the copy of the application (Annexure-P.2) whereby the detenu retracted from his statement recorded under Section 108 of the Customs Act, 1962 have been placed on record. The detenu was then remanded to judicial custody till 12.2.1988. The grounds which have been made the basis for passing of the detention order against the detenu are enumerated in the application (Annexure-P.1) for judicial remand and inter alia are that he was attempting to take Indian and foreign currency amounting to Rs.16,19,781.79 while he was going to Hong Kong. It has been alleged that the detenu had intentionally handed over the sea-green colour VIP suit case to his co-traveller and the currency was recovered from the sea-green colour suit-case. The detenu submitted an application (Annexure-P.3) for grant of bail before the learned Additional Chief Metropolitan Magistrate, New Delhi on 10.2.1988 in which he again retracted from his earlier confessional statement. The learned Additional Chief Metropolitan Magistrate, New Delhi vide order dated 1.3.1988 (Annexure-P.4) enlarged the petitioner on bail. However, it is alleged that to scuttle the release of the detenu on bail the impugned order of detention Cr. Writ Petition No.792/2007 [4] was passed on 8.3.1988 (Annexure-P.9). The detenu being apprehensive that his liberty would be affected, filed writ petition No.708 of 1988 before the Calcutta High Court so as to assail the detention order dated 8.3.1988 (Annexure-P.9) at the pre-execution stage. It is submitted that the detenu was carrying on his pharmaceutical business at Calcutta as well and was apprehending the execution of the order there. Therefore, the writ petition was filed in the Calcutta High Court. In terms of order dated 16.3.1988 (Annexure-P.5), the Hon'ble Calcutta High Court was pleased to issue notice to the respondents therein besides interim relief was granted whereby the respondents were restrained from giving effect to the detention order till 4.4.1988. In the meantime, the detenu was to serve a copy of the petition upon the respondents. In default of effecting the service, the interim order, it was observed, shall stand vacated. Liberty was also given to the respondents to apply for vacating the interim order upon notice to the detenu. The Area Custom Officer IGI Airport, New Delhi on 8.4.1988 filed a complaint under Sections 132 and 135(1)(a) of the Customs Act before the learned Additional Chief Metropolitan Magistrate New Delhi against the detenu. The detenu was summoned to face trial in the said case. The detenu was ultimately acquitted in the said case vide order dated 29.9.2006 (Annexure-P.7). It was held that the prosecution/complainant had failed to prove the charge against the accused beyond reasonable doubt and by giving benefit of doubt to the detenu he was acquitted. The writ petition filed by the detenu before the Hon'ble Calcutta High Court remained pending. It is submitted that the Sponsoring Authority as well as the detaining authority had not filed any reply to the aforesaid writ petition. In any case, vide order Cr. Writ Petition No.792/2007 [5] dated 27.2.2001 (Annexure-P.6) the writ petition was dismissed in default as no one appeared for either of the parties. It was also ordered that the interim order, if any, is vacated and rule, if any, is discharged. It is submitted that now after a lapse of 18 years from the passing of the detention order on 8.3.1988 (Annexure-P.9), the detenu on 16.7.2007 has been taken in custody by Paramdeep Singh Sandhu, Superintendent of Police (Headquarters), Moga. He was apprehended from Chandigarh. Copy of the DDR No.31 dated 16.7.2007 (Annexure-P.8) recorded in this regard at Police Station Sector 3, Chandigarh has been placed on record. The detenu has been taken to District Jail, Faridkot and detained there. In the intervening night of 16/17.7.2007, the detenu was served with the order of detention as well as the grounds of detention. It is submitted that the detention order has been tampered with by the S.P. (Headquarters), Moga by scoring out the words `Central Jail, Amritsar' and substituting them with `District Jail, Faridkot'. The said order of detention is assailed by way of the present petition on the grounds that there is an inordinate delay in the execution of the detention order, non-consideration of the relevant material by the detaining authority, the relied upon documents in support of the detention order were not supplied parri passu with the detention order and the fact of acquittal in the criminal case was not taken into account by the detaining authority. On notice, a counter-affidavit has been filed by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi. The brief facts of the case have been recounted. It is stated that at the time of boarding the Thai Airways Flight to Hong Kong on 29.1.1988 the detenu gave his name as Mohan Lal son of Shri Ram Lal. He Cr. Writ Petition No.792/2007 [6] was travelling on Thai Airways passenger ticket along with his friend Manohar Lal Grover. On being asked by the Air Customs Officer the detenu brought his checked baggage comprising one card board carton bearing Thai Airways baggage and one sea-green colour VIP suit case bearing Thai Airways baggage bag which he produced on the customs counter along with his black colour brief case `Dunson' which was his hand baggage. His co-traveller Manohar Lal Grover had only one small zipper hand bag as hand baggage. Manohar Lal Grover disclosed that the person with whom he was travelling and who reported with him at the Customs counter by the name of Mohan Lal was actually Joginder Pal Jain son of Shri Panna Lal Jain (detenu) but in the said visit he was travelling by the name of Mohan Lal with a passport issued at Chandigarh on 11.8.1986 bearing his photograph and name as Mohan Lal. He had got made the said passport in a fake name from Chandigarh. In the presence of witnesses he identified his checked in baggage i.e. Card board carton and also his sea- green colour suit case. Besides, black colour brief case as the hand baggages. The detenu admitted the ownership of these baggage. He also admitted in the presence of witnesses that while at the airline checking counter he gave his sea-green colour VIP suit case to his friend Manohar Lal Grover for getting it checked in, in his (Manohar Lal Grover's) name although it belonged to the detenu. Before checking the accompanied baggage it was inquired from the detenu whether he was keeping/carrying any contraband, restricted or prohibited items viz. Indian or foreign currency in his baggage or on his person. He replied in the negative and declared only the items of his personal use. In the presence of witnesses the Cr. Writ Petition No.792/2007 [7] baggage was checked by the Customs Officers and foreign currency in the shape of currency notes, travellers cheques, cheques, money orders, international money orders, global money orders, pay orders, demand drafts, passport orders etc. which in all were equivalent to Rs.16,12,317.89 were recovered. These were found concealed in sweet packets. His personal search resulted in recovery of Indian and foreign currency amounting to Rs.7,463.90. The detenu was found travelling in the name of Mohan Lal and he could not produce any evidence documentary or otherwise or any permission from the Reserve Bank of India showing the lawful export in respect of the recovered foreign and Indian currency. The same, therefore, was seized under Section 110 of the Customs Act on the reasonable belief that the same had been admitted to being exported out of India in violation of the restrictions imposed on the export thereof under the provisions of FERA, 1973 and Customs Act, 1962. These were liable for confiscation under the provisions of the Customs Act, 1962. In the voluntary statement dated 29.1.1988 the detenu inter alia stated that his actual name was Joginder Pal Jain but he was holding passport in the name of Mohan Lal which bears his photograph and was issued at Chandigarh on 11.8.1986. The detenu also admitted that Manohar Lal Grover was known to him for the last 15 years as he belonged to Moga and that he met him at the Airport on 28.1.1988 with one hand baggage. He was booked to go to Hong Kong by Thai Airways flight. Besides, Manohar Lal Grover had no concern whatsoever with the recovered currencies, travellers cheques, demand drafts, BPOs, GPOs etc. and these belonged to the detenu and purchased by him from the money which was lying with him as his savings for the last 20 Cr. Writ Petition No.792/2007 [8] years. Manohar Lal Grover in his voluntary statement dated 29.1.1988 inter alia stated that he and the detenu were to travel to Hong Kong and as a matter of fact it was already arranged that they would meet at Broadway Hotel and thereafter, at the entrance gate of the departure hall. Manohar Lal Grover also informed that the passenger's name with whom he was travelling and from whom foreign exchange had been recovered was Joginder Pal Jain (detenu) and not Mohan Lal. The detaining authority, it is submitted, after careful consideration of the material placed before it and relied upon by it came to its substantive satisfaction that the activities of the detenu amount to smuggling since his acts and omissions rendered the goods liable to be confiscation under Section 113 of the Customs Act. The detaining authority was further satisfied that the detenu needs to be detained under the Act with a view to preventing him from smuggling goods in future. Accordingly, the detention order dated 8.3.1988 was passed. It is accepted that the detenu has been detained on 16.7.2007 and lodged at District Jail, Faridkot. The detenu was granted parole by the Central Government for two days i.e. 18.7.2007 and 19.7.2007 to cast his vote for the Presidential elections. A reference has also been made to the Hon'ble Central Advisory Board, New Delhi on 7.8.2007 under Section 8(b) of the Act for their opinion as to whether sufficient cause does exist for the detention of the detenu. The meeting of the Hon'ble Central Advisory Board, it is submitted, is likely to be held shortly. It is also submitted that the detenu has a right to make a representation against the order of detention and since the husband of the petitioner has not availed the alternative remedy the present petition is premature. Even otherwise, the respondent Cr. Writ Petition No.792/2007 [9] has made a reference in respect of the detention order to the Advisory Board constituted under Article 22 (4) of the Constitution of India as provided under Section 8 of the Act. The Advisory Board is to submit its report within 11 weeks after hearing the detenu in person, if he desires to be heard. It is submitted that in case the Advisory Board opines that there is no sufficient cause for detention of the detenu, the government would revoke the detention order and the detenu would be released forthwith. Therefore, also it is submitted that the writ petition is premature. It is further submitted that there has been a major concealment of fact. The petitioner has suppressed the fact that on the same day i.e. 29.1.1988 when he was apprehended by the police at the IGI Airport, case FIR 22 of 1988 (Annexure R1) was registered against him in respect of the offences under Sections 419 and 417 IPC read with Section 12 of the Passport Act. In pursuance of the said FIR, the detenu was tried and he stands convicted vide order dated 7.1.1992 (Annexure-R.2) by the Court of Additional Chief Metropolitan Magistrate, New Delhi. It is, however, also submitted that though the said FIR is not a ground on the basis of which the detention order was passed, in any case, the same substantiates the fact that the detenu was keeping dual identity for travelling abroad. An objection has also been raised with regard to non-joinder of the Punjab State as a party which according to the respondent is a necessary party as the detention order was executed by it. Besides, it is submitted that the petition is liable to be dismissed as the detention order, the quashing of which is sought, was assailed by the petitioner by way of Writ Petition 708 of 1988 before the Calcutta High Court. The said writ petition admittedly stands dismissed Cr. Writ Petition No.792/2007 [10] vide order dated 27.1.2001 (Annexure P6). Therefore, the petitioner is estopped from challenging the same order before this Court. No review petition or appeal has been filed against the aforesaid order dated 27.2.2001 dismissing the earlier writ petition filed by the detenu. It is submitted that no fundamental right of the detenu has been violated. In fact, the detenu was involved in the illegal export of foreign currency/instruments amounting to Rs 16,19,781.79 out of the country. The detaining authority after careful consideration of the material placed before it, reached its subjective satisfaction that the activities indulged in by the detenu amounted to smuggling and, therefore, he was liable to be detained under the Act. It is also submitted that the detention order against the detenu was issued on 8.3.1988. However, its execution was stayed by the Hon’ble Calcutta High Court vide order dated 16.3.1988 (Annexure-P.5). The interim order passed by the Hon’ble Calcutta High Court staying the execution of the detention order was vacated vide order dated 27.2.2001. Thereafter, the detention order has been executed on 16.7.2007. Thus, the detention order remained unexecuted from 8.3.1988 to 16.3.1988 and from 27.2.2001 till 15.7.2007 i.e. for a total period of approximately 6-1/2 years and not 19 years as alleged by the petitioner. It is also submitted that the proceedings in Writ Petition 708 of 1988 before the Hon’ble Calcutta High Court were to be followed up by the office of the Commissioner of Customs (Airport Admn.), Kolkata. Due to frequent change of the customs staff at Calcutta and due to administrative reasons, the actual status of the case was not readily available. Later on, the matter was taken up with the Registrar, Calcutta High Court and the Branch Secretariat, Ministry of Law, Kolkata. Cr. Writ Petition No.792/2007 [11] Ultimately, the copy of the order dated 27.2.2001 regarding the dismissal of the writ petition and consequent vacation of the stay duly signed by the Assistant Registrar, Calcutta High Court was received by the Calcutta Customs on 10.7.2007. On receipt of the same, the Assistant Commissioner, Customs, IGI Airport, New Delhi vide letter dated 12.7.2007 sent a copy to the Additional Director General of Police (Intelligence) Punjab, Chandigarh for execution of the detention order and the detenu was detained on 16.7.2007. Therefore, it is submitted that immediately on receipt of the certified copy of the order of vacation of stay, the detention order was executed. A copy of the letter dated 11.7.2007 (Annexure-R.3) issued by the Commissioner of Customs (Airport and Admn.) Kolkata and letter dated 12.7.2007 (Annexure-R.4) issued by the Commissioner of Customs, IGI Airport New Delhi have been placed on record. As regards the acquittal of the petitioner by the learned Additional Chief Metropolitan Magistrate, New Delhi, vide order dated 29.9.2006 (Annexure-P.7), it is submitted that in the concluding para of the order, it has been observed that the prosecution/complainant had failed to prove the charge against the accused (detenu) beyond reasonable doubt and, therefore, benefit of doubt was given. Accordingly, an order of acquittal was passed. It was also observed that Manohar Lal Grover had expired during the proceedings and the other witnesses could not be found. The Customs Department has preferred an appeal before the Delhi High Court against the order dated 29.9.2006 acquitting the detenu. Therefore, it is submitted that the order of the learned Additional Chief Metropolitan Magistrate, New Delhi acquitting the detenu in the criminal proceedings, has not attained finality. The allegations of Cr. Writ Petition No.792/2007 [12] tampering with the detention order dated 8.3.1988 (Annexure P9) are denied. It is stated that it was for the welfare and convenience of the family that the detenu has been lodged at District Jail, Faridkot and there was no ulterior motive to tamper with the detention order by substituting the words “District Jail, Faridkot” in place of “Central Jail, Amritsar”. No prejudice has been caused to the detenu by such substitution. Rather, the same has been done considering the convenience of the family of the detenu in a most bona fide manner. It is also submitted that the order of detention and the grounds of detention were served on the detenu with the authentic signatures of the detaining authority. The grounds of detention are true and authentic. The non-availability of stamp of the detaining authority on each page of the grounds of detention does not take away the authenticity of these documents. As regards the allegations about the non-supply of relied upon documents along with the grounds of detention, it is submitted that the SSP Moga informed on the night intervening 16/17.7.2007 that the grounds of detention were served on the detenu along with the order of detention by the Deputy Jail Superintendent, Faridkot which were duly received by the detenu. However, the detenu refused to sign the receipt of the relied upon documents (152 pages) which were presented to him by the SP (HQ), Moga along with the grounds of detention. The detenu cited ill health and fatigue as the reason for not receiving and signing each page of the 152 pages of the relied upon documents. Thereafter, the SP (HQ) Moga and the Police party accompanying him, returned to Moga along with the set of relied upon documents. On the next day i.e. 18.7.2007, the detenu was released on parole for 2 days and he left for New Delhi to cast his vote for Cr. Writ Petition No.792/2007 [13] the Presidential election and was again lodged in Faridkot Jail on 20.7.2007. Thereafter, the relied upon documents were served by the SP (HQ) Moga on the return of the detenu from parole on 20.7.2007 when the detenu willingly signed the receipt on each page of the 152 pages of the relied upon documents, in the presence of the Jail authorities. Therefore, it is stated that the detenu himself is responsible for the non-receipt of the relied upon documents parri passu with the grounds of detention. Mr. Vikram K. Chaudhri, Advocate, learned counsel for the petitioner has submitted that the impugned order of detention dated 8.3.1988 (Annexure P9) is liable to be quashed for the reason that there is an inordinate and gross delay from the passing of the detention order on 8.3.1988 and its execution on 16.7.2007. Therefore, it is submitted that the live link between the order of detention and the actual detention is snapped. As such, the detention order is vitiated. It is also contended that the relevant and necessary material furnished by the sponsoring authority were not placed before the detaining authority and this led to non-consideration of the necessary material by the detaining authority on account of which the subjective satisfaction of the detaining authority stands impaired. It is further submitted that the application for judicial remand dated 30.1.1988 (Annexure P1), the application dated 30.1.1988 (Annexure-P.2) whereby the detenu retracted from his alleged statement under Section 108 of the Customs Act at the first available opportunity, the application dated 10.2.1988 (Annexure P3) before the Additional Chief Metropolitan Magistrate, New Delhi whereby the detenu again retracted from his statement and the order dated 1.3.1988 (Annexure P4) whereby the detenu was granted parole, were relevant and necessary material which were liable Cr. Writ Petition No.792/2007 [14] to be taken into consideration by the detaining authority and failure to do so vitiates the order of detention. It is further contended that the relied upon documents in support of the detention order were not supplied parri passu with the grounds of detention. The detenu was not supplied any list of the documents nor the relied upon documents. This serious lapse of non- supplying the relied upon documents after serving the grounds of detention renders the service of grounds of detention to be invalid and illegal. It is also contended that before the execution of the detention order on 16.7.2007, the detaining authority was liable to take into account the fact that the detenu had been acquitted by the