Case: Smt. Poonam Lata Vs. M.L. Wadhawan &amp; Anr

Petitioners husband, Shital Kumar, was detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance. Department of Revenue, dated February 28, 1986, made in exercise of powers vested under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA). The petitioner made an application to this Court under Article 32 in Writ Petn. (Cri.) No. 292 of 1986 challenging that order of detention. In the earlier writ application, on 15th May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the following terms (at p. 1385) :-detenu is released on parole until further orders on the condition that he will report to the Directorate of Revenue, New Delhi, every day and the Directorate will be at liberty to direct him to explain his conduct during this time ...... In the meantime the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole.On 3rd March, 1987, the writ petition was listed for hearing before the Bench consisting of both of us. In the writ petition, several contentions had been raised but Mr. Jethmalani, learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of parole, that is, from 15th May, 1986, till February 22, 1987, should not be added to the period of detention specified in the impugned order under section 3(1) of the COFEPOSA and the period of one year from the date of detention having expired on February 20, 1987, the impugned order has lapsed and the detenu became entitled to be freed from the impugned order of detention. That point was examined at length and by the judgment of this court delivered on 22nd April, 1987 in Poonam Lata v. M. L. Wadhawan, AIR 1987 SC 1383  the writ petition was dismissed by saying (Para 13)n the premises, it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention under sub-section (1) of Section 3 of the Act.In paragraph 14 of the judgment, it was further observed :-these reasons, the only contention advanced by Shri Jethmalani in course of the hearing, namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must fail. The writ petition is accordingly dismissed. There small be no order as to costs. We direct that the petitioner shall surrender to custody to undergo remaining period of detention. We give the detenu 10 days time to company with this direction failing which a non-bailable warrant for his arrest shall issue.2. This writ petition was thereafter filed on 27th of April, 1987. In paragraph 2 of the petition, with reference to the earlier writ petition, it was averred :-were advanced by the counsel for the petitioner only to the one point and it was clearly stated by the senior counsel, Shri Ram Jethmalani, who appeared in the hearing that he had a strong, almost unanswerable case on merits but he was very keen to have the question of exclusion of the parole period decided since it arises squarely in this case. It would have been a breach of professional duty on the part of the counsel not to raise those points against the validity of the detention order on which the court had prima facie issued notice. Shri Ram Jethmalani, senior counsel, did not give up the other points in the said writ petition. However, the Honble Court has dismissed the said writ petition on 22-4-1987. Though the Honble Court has rightly observed that the only point which was argued was on the question of the period of parole it was submitted that had the Honble Court indicated that the petitioners submission on this score did not find favour of the Honble Court, counsel would have proceeded to argue thee are surprised that in the writ petition which has been settled by Mr. Jethmalani, such allegations have been made. It is common experience that when those several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the hearing. The judgment indicated that only one point was argued. The averments in paragraph 2 of the present writ petition accepts that position. It, therefore, follows that Mr. Jethmalani made submissions confined to one contention - a contention which had not been raised in the earlier writ petition but arose out of the proceedings in court therein - relating to the effect of release on parole. The fact that Mr. Jethmalani raised only one submission having been accepted, it is a matter of no consequence as to whether giving up the other pleas raised in the writ petition amounted to breach of professional duty on the part of Mr. Jethmalani. The fact remains that only one contention had been raised. There is absolutely no basis for the allegation in paragraph 2 of the writ petition that if the Court had indicated to Mr. Jethmalani in course of arguments that the submission on this limited point did not find favour with the Court he would have proceeded to argue the other points. That certainly was an unusual expectation. It was open to Mr. Jethmalani to make full submission on all aspects arising in the writ petition. That having not been done, it was improper on the part of Mr. Jethmalani to raise such allegations in paragraph 2, as have been extracted above. We are surprised that Mr. Jethmalani who was aware of the proceedings in the Court and did not dispute the fact that he had confined his arguments to one point settled the writ petition as senior counsel with the allegations quoted above in paragraph 2 of the writ petition. This writ petition was fixed for final hearing on 31st of July, 1987, as suggested by Mr. Jethmalani, but at the hearing he did not appear and Mr. Garg, senior counsel, appeared for the petitioner. When we pointed out to Mr. Garg about the incorrectness of the averments and that the allegations contained in paragraph 2 are without foundation against the Bench hearing the matter, he pleaded ignorance and stated that it was for Mr. Jethmalani to answer. We do not want to say anything more but we think it appropriate to point out that Mr. Jethmalani on the earlier occasion had argued the writ petition in his own way and had raised only one contention which was dealt with by the judgment in the writ petition

Reasoning:
6. From the facts and circumstances emerging in this case it is clear that the detenu had been called by the Customs Authorities for investigation. A statement had been made by him under section 108 of the Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention came to be made the petitioner was in jail for at the most one day. Charge-sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th February, 19869. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed