Smt.
Poonam Lata Vs. M.L. Wadhawan & ANR [1987] INSC 202 (7 August 1987)
MISRA
RANGNATH MISRA RANGNATH SEN, A.P. (J) CITATION: 1987 AIR 2098 1987 SCR (3) 840
1987 SCC (4) 48 JT 1987 (3) 305 1987 SCALE (2)281
CITATOR
INFO :
RF
1986 SC 596 (8) RF 1988 SC1835 (8) F 1989 SC2027 (19) R 1989 SC2265 (19)
ACT:
Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: s.
3(D--Preventive detention--Order made when detenu in jail--Order whether
vitiated.
HEADNOTE:
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 the period of detention. That plea was rejected and the petition dismissed
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 submission would not find
favour with it he would have proceeded to argue the case.
Further,
two more points were raised: (1) that the 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 supplied in spite of demand, and (2) that since the detenu was
already in 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 are advanced in the
pleadings, counsel chooses to press one or some out of the several contentions
at the time of the hearing. 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 petition. That having not been done it was
improper on his part to raise such allegations. [844A, D] 841
2.1
The detenu had been called by the Customs Authorities for investigation on
February 27, 1986. A statement had been made by him under s. 108 of the Customs
Act and there- after 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 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 office by the authorities concerned, it could not be held that summons
under s. 108 of the Customs Act was in existence. Once the summons was out 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 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
In the instant case, there was 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. The order of detention was, therefore, not vitiated. [851E] Binod
Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416; Rameshwar 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, [1982] 2
SCC 43; Merugu Satyanarayana v. State of Andhra Pradesh, [1982] 3 SCC 301 and
Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378, referred to.
CRIMINAL
ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 408 of 1987.
(Under
Article 32 of the Constitution of India). 842 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 Was 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(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 Petition
(Crl) 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 con- duct during
this time ....... In the mean- time 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 COFEPO- SA 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:- 843 "In the premises, it must
accordingly be held that the period of parole has to be excluded in re-conking
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 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 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 averted:- "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 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 dismissed 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 the Hon'ble Court, counsel would have
proceeded to argue the case." 844 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 heating. 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.
Mr.
Garg, learned counsel for the petitioner has raised two points before us for
consideration: (1) the detenu had been prejudiced in making an effective
representation to the Board against his detention in the absence of the summons
issued under section 108 of the Customs Act to him. In spite of demand, that
document had not been 845 supplied, and (2) the petitioner was already in
custody at the time the 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. 1 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 DRI officers. As the
petitioner. happened to be in the presence of the empowered officers of DRI, he
was accordingly told that his presence was required for giving evidence and the
petitioner accompanied the DRI 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
ACI and, therefore, the provisions of section 61 of the Code of Criminal
Procedure will be applicable. That section provides:- 846 "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 DRI 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
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 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--I 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 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 847 against
you, I am satisfied that you should be detained 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." 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 DRI. The
petitioner was arrested at 2.00 p.m.
on
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 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 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 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 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 848 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. 33 1 of 1985. In 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 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 put- ting 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 Magistrate, Etah.
,
, .....................
A
Constitution Bench of this Court in Ramesh- war Shaw v. District Magistrate,
Burdwan, [1964] 4 SCR 921 held as follows:- 849 "As an abstract
proposition of law, there may not be any doubt that section 3(1)(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 Kartic 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 non-bailable
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 reason- able 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 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." 850 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. But in such a situation the detaining authority must disclose
awareness of the fact that the person against whom an 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." That vexed question came before a two-Judge bench of this Court in
the case of Merugu Satyanarayana v. State of Andhra Pradesh, [1982] 3 SCC 301
wherein it 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 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 Suraj
Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378. 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. District Magistrate, Etah, [1985] 4 SCC 232 it was held that merely on
the ground that an accused in detention as an under trial 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 851 principle will have to be
judged and applied in the facts and circumstances of each case.
Where
a person accused of certain offences where under he 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 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 jeo-pardise the security of the
State, then subject to other conditions being fulfilled, a man being in
detention would not detract from the order being passed for preventive
detention ................. " It is thus clear that the fact that the
detenu is al- ready 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 contention canvassed
are rejected, the writ petition is dismissed.
P.S.S.
Petition dismissed.
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