SMT. POONAM LATA v.

M.L. WADHAWAN & ANR.

AUGUST 7, 1987

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[A.P. SEN AND RANGANATH MISRA, JJ.]

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Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: s. 3( 1)-Preventive detention-Order made when detenu in jail-Order whether vitiated.

c In criminal writ petition No. 292 of 1986, preferred by detenu's " wife on various grounds, the Vacation Judge ordered his release on parole till further orders. However, when the petition came up for hearing before the Division Bench on 3rd March, 1987 the counsel confined his submissions to one aspect only that arose out of the proceedings in Court i.e., that the period of parole should not be added to

~ D the period of detention. That plea was rejected and the petition dlsmis sed on 22nd April, 1987.

In the present writ petition filed thereafter on April 27, 1987 it was averred that the counsel did not give up the other points in the earlier writ petition, and had the Court indicated that the petitioner's E submission would not find favour with it he would have proceeded to argue the case. Further, two more points were raised: (1) that the

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detenu had been prejudiced in making an effective representation to the Board against his detention in the absence of the summons issued under

~ s. 108 of the Customs Act to him, which document had not been sup plied in spite of demand, and (2) that since the detenu was already in F custody at the time the order of detention was served the said order was liable to be quashed.

Dismissing the writ petition,

HELD: 1. It is common experience that when several contentions G are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time or the bearing. In the instant case, only one point was argued at the previous hearing. It was open to the counsel to make full submissions on all aspects arising in the writ pell lion. That having not been done it was Improper on his part to raise such allegations. [844A, D] H

POONAM LATA v. M.L. WADHAWAN 841

2.1 The detenu had been called by the Customs Authorities for A investigation on February 27, 1986. A statement had been made by him under s. 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 under s. 3(1) of the COFEPOSA Act for one year came to be made on 8

February 28, 1986 he was in jail at the most for one day. Chargesheet had not been submitted against him in the criminal case. [847FG]

2.2 Since there was no summons and the detenu had been orally directed to attend the omce by the authorities concerned, it could not be held that summons under s. 108 of the Customs Act was in existence.

C Once the summons was not in existence it could not be said that there was prejudice to the detenu on account of the authority's withholding the summons. [846D]

3.1 The fact that the detenu was already in detention did not take away the jurisdiction of the detaining authority in making an order of D 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. [851D]

3.2 1n the instant case, there was sufticient 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. The order of detention was, therefore, not vitiated. [851E]

F Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416; Ramesh war Shaw v. District Magistrate Burdwan, (1964] 4 SCR 921; Kartic Chandra Guha v. State of West Bengal, [1975] 3 SCC 490; Dr.

Ramakrishna Rawat v. District Magistrate, Jabalpur, (1975] 4 SCC 164

Vijay Kumar v. State of Jammu and Kashmir, i1982] 2 SCC 43; Merugu "1' Satyanarayana v. State of Andhra Pradesh, [1982] 3 SCC 301 and Suraj G Pal Sahu v. State of Maharashtra, (1986] 4SCC 378, referred to.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Cr!.) No. 408 of 1987.

(Under Article 32 of the Constitution of India).

A R.K. Garg and Ms. Rani Jethmalani (Not present) for the Petitioner.

Anil Dev Singh, Hemant Sharma and Ms. A. Subhashini for the Respondent. '

The Judgment of the Court \Vas delivered by

RANGANATH MISRA, J. Petitioner's 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 section 3( I) 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 Petition (Cr!.) No. 292 of 1986 challenging that order of detention. In the earlier writ application, on 15th of May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the following terms:-

"The 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 a, n 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 im- Y pugned 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:-

"In the premises, it must accordingly be held that the A period of parole has to be excluded in recokning the period of detention under sub-section ( 1) of section 3 of the Act."

In paragraph 14 of the judgment, it was further observed:-

"For these reasons, the only contention advanced by Shri .Tethmalani 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 (l) 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 shall 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 comply with this direction failing which a non-bailable warrant for his arrest shall issue."

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:-

"Arguments 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 F 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 Hon'ble Court has dismis- G sect the said writ petition on 22.4.1987. Though the Hon'ble 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 Hon 'ble Court indicated that the petitioner's submission on this score did not find favour of H the Hon'ble Court, counsel would have proceeded to argue the case."

A We 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 -.{ B accepts tha.t position. It, therefore, follows that Mr. Jethmalani made submissions confined to one contention-a corrtention which had not been raised in the earlier writ petition but arose out of the proceedings --r 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 - c 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.

J ethmalani in course of arguments that the submission on this limited point did not find favour with the Court he would have proceeded to D 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 E fact that he had confined his arguments to one point settled the writ petition as senior counsel with the allegations quoted above in para- -~ graph 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 incor- F rectness 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 G contention which was dealt with by the judgment in the writ petition.

Mr. Garg, learned. counsel for the petitioner has raised two points before us for consideration: (I) the detenu had been prejudiced in making an effectiw representation to the Board against his detention in the absence of the summons issued under section 108 of the H Customs Act to him. In spite of demand, that document had not been

supplied, and (2) the petitioner was already in custody at the time the A order of detention was served and since the detenu was already in custody, the order of detention is liable to be quashed. In Ground No. 4 of the writ petition, it has been alleged:-

"That the most material document under the circumstances turns out to be the summons which was served on the detenu being the summons referred to in the letter dated 21.3.1986, Annexure E above mentioned. The detenu by his advocate's letter of 12th April, 1986, has called upon the respondent No. I to supply him with a copy of the summons because he intends to use the said summons while presenting his case to the advisory board. True copy is annexed hereto and marked as Annexure F. The request contained in the said letter has not been complied with."

In paragraph 4(iv) of the counter affidavit, it has been stated:-

"In reply to para 4, it is submitted that the summons as required by the detenu's advocate in the letter dated 12.4. 1986 were not supplied as there were no written summons served on the petitioner. I say that after the completion of the search of the residential premises of the petitioner on 27.2.1986 the petitioner was taken by DR! officers. As the petitioner happened to be in the presence of the empowered officers of DR!, he was accordingly told that his presence was required for giving evidence and the petitioner accompanied the DR! officers on his free will.

No written summons were, therefore, served on the petitioner ........................................... "

Section 108( 1) of the Customs Act provides:-

"Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods."

No specific provision has been made for summons in the Customs Act and, therefore, the provisions of section 61 of the Code of Criminal Procedure will be applicable. That section provides:-

"Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court."

On 12th of April, 1986, counsel for the petitioner wrote a letter to the detaining authority wherein it was stated:-

" .......... I have to further request you to supply me with a copy of the summons said to have been served on client on or about 27th of February, 1986. The DR! has not yet supplied to my client the documents as stated in your above-mentioned rejection letter."

In view of the positive case of the respondents that there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, we think that it would not be proper to D hold that summons under section 108 of the Customs Act was in existence. Once the summons is not in existence, there is no foundation in the submission that there is prejudice to the detenu on account of the authority's withholding the summons. The first contention fails.

Admittedly the petitioner.was taken into custody around 2.00 E p.m. on 27 .2.1986, in course of investigation of the case. He was produced before the Judicial Magistrate and an order was made requiring him to be produced next day in the court. Paragraphs 7 and 8 of the grounds served on the petitioner run thus:-

" 7-1 have carefully gone through the facts and circumstances of the case, relevant documents and also the statements of various persons in the subject case. I have also seen and gone through the various applications moved in the court of the ACMM, New Delhi and orders passed thereon."

"8-In view of the facts mentioned hereinabove, I Y have no hesitation in arriving at the conclusion that you have been dealing in smuggled goods otherwise than engaging in transporting or concealing or keeping smuggled goods. Even though the investigations in the subject case is in progress, prosecution and adjudication proceedings under the Customs Act, 1962, are likely to be initiated

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against you, I am satisfied that you should be detained A under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods."

13 In paragraph 7 of the counter-affidavit, it has been stated:-

" ......... The petitioner, as already stated, was summoned after the search of his residental premises on 27.2. 1987 and his statement recorded by the competent officer of Dip. The petitioner was arrested at 2.00 p.m. on c 27 .2. 1986 and was produced at the residence of ACMM, New Delhi on 27.2. 1986 at about 8.00 p.m ........... ".

In paragraph 9 of the said affidavit, it is further alleged that:-

"Shri Shital Kumar was arrested at 1400 hrs. of D 27.2.1986 and produced before the ACMM around 2000 hrs. at his residence the same day. Shri Shital Kumar was then remanded to judicial custody till 28.2.1986 by the said magistrate."

The order of detention is dated 28.2. 1986. It was addressed to the E detenu at his residential address at Delhi and not to the jail authorities for service on the detenu.

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 F Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who ramanded 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 G remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th of February, 1986.

Now it has to be seen if on these facts the order of detention would become vitiated. Strong reliance was placed by Mr. Garg on a H

A two-Judge judgment of this Court in Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416. Paragraph 3 of the judgment indicates the facts as follows:-

"The petitioner/appellant was in detention when the petitioner/appellant was served with the orders of detention. There were criminal cases against the petitioner.

There was a murder case in respect of Crime No. 331 of

1985. Jn the said case, investigation was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all concerned with the murder. When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already surrendered in respect of the criminal charge against him. At the relevant time, the petitioner was under trial in the said criminal case."

On such facts, it was the contention of the petitioner therein that the

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D order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release

from detention was imminent and the order of detention was necessary for putting him back in jail. This Court therein pointed out:-

"The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu v. State of Maharashtra, ( 1986] 4 SCC 378 and Raj Kumar Singh v. State of Bihar, ( 1986] 4 SCC 407.

Judged on the basis of the said principles, there is no ground for interference with the order of detention as passed. It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the petitioner was taken into custody. From the affidavit of the District Magistrate, it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decisions and especially in the decisions in Rameshwar Shaw v. District Magistrate, Burdwan and Ramesh Yadav v. District Ma1:istrate, Etah.

A Constitution Bench of this Court in Rameshwar Shaw v. District Magistrate, Burdwan, ( 1964] 4 SCR 92 l held as follows:-

"As an abstract proposition of law, there may not be any doubt that section 3( l)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail."

The self-same question was examined in Karlie Chandra Guha v. State of West Bengal, [1975) 3 SCC 490 where a three-Judge Bench of this Court observed:-

"It is true that he had been held in custody in connection with the offences under the Arms Act which are nonbailable offences, but even so, it was open to the trying magistrate to release the petitioner on bail. The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity. Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order."

'"( That very question again came before a two-Judge bench in Dr. ' Ramakrishna Rawat v. District Magistrate, Jabalpur, [1975) 4 SCC 164 where it was observed:-

"In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151 Cr. P. C. That custody was obviously of a short duration.

The mere service of the detention order on the petitioner in

jail would not therefore invalidate the order. On the basis G of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code." H

A In Vijay Kumar v. State of Jammu & Kashmir, (1982] 2 SCC 43 a two-Judge Bench of this Court pointed out:-

"If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given-/ case there yet may be the need to order preventive detention of a person already in jail. Bui in such a situation the detaining authority must disclose awareness of the fact that the person against whom a11 order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made."

Thal vexed question came before a tw1>-Judge bench of this Court in the case of Merugu SaJyanarayana v. State of Andhra Pradesh, [198213 sec 301 wherein ii was observed:-

"Now, if the man is already detained can a detaining ;...... authority be said to have been subjectively satisfied that a preventive detention order be made?"

The Court then referred to the Constitution Bench decision in Rameshwar Shaw's case (supra) and left it as a matter to be decided in every E individual case on its own facts. The Court also indicated that it was

not a matter of jurisdition but had to be decided on the facts of each -~ case.

We may now refer to a recent judgment of a three-Judge Bench in the case of Swaj Pal Sahu v. State of Maharashtra, [ 1986] 4 SCC 378.

F Mukharji, J. who delivered the judgment in Binod Singh's case (supra) on which Mr. Garg has relied has also delivered the judgment in this case. Therein it was said:-

"In Ramesh Yadav v. Di$trict Magiltrate, Etah, ( 19851 4 sec 232 it was held that merely on the ground that any accused in detention as an undertrial prisoner was likely to get bail,. an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this

principle will have to be judged and applied in the facts and A circumstances of each case. Where a person accused of certain offences whereunder be is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the B principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardise the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order C being passed for preventive detention ................. "

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 D 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 E 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 contention canvassed are rejected, the writ petition is dismissed.

P.S.S.

Petition dismissed. F