Bal Chand
Bansal Vs. Union of India & Ors [1988] INSC 101
(11 April 1988)
Sharma,
L.M. (J) Sharma, L.M. (J) Sen, A.P. (J)
CITATION:
1988 AIR 1175 1988 SCR (3) 494 1988 SCC (2) 527 JT 1988 (2) 65 1988 SCALE
(1)688
CITATOR
INFO : RF 1988 SC1256 (13)
ACT:
Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: s.3(1)-Preventive
detention- Compelling necessity for-Detenu already in judicial custody- Likely
to be released on bail-order whether punitive.
HEAD NOTE:
% The
petitioner was apprehended on April 2, 1987
on information provided by his associate that he was the main person directing
illegal remittances of money to foreign countries. He was formally arrested on April 3, 1987 and remanded to judicial custody
till April 13,1987. His associate was in the meantime
enlarged on bail and being apprehensive that the petitioner too may be released
on April 13, 1987 when his application was to come
up, an order of detention made under Section 3(1) of the COFEPOSA Act was
served on him on that day. The application for bail filed by him was actually
allowed the same day i.e. April 13,1987.
Petitioner's
representation against the detention was rejected and a Writ of Habeas Corpus
under Article 226 of the Constitution was dismissed by the High Court. In the
Special Leave Petition arising out of the High Court's Order and the Writ
Petition under Article 32 of the Constitution, it was contended that the
impugned order amounts to double detention as the petitioner was already in
jail when the detention order was made, and that it was essential for the
detaining authority to have been aware of the fact that the petitioner was
already in jail and was likely to be released on bail and further he had to be
satisfied that compelling necessity existed for the detention, none of which
conditions were satisfied.
Dismissing
the petitions, ^
HELD:
1. A perusal of the grounds of detention clearly indicates that the detaining
authority was conscious of the fact that the petitioner was in judicial custody
and was apprehensive that he would be released on bail when an application for
bail moved on his bahalf was going to be heard on April 13, 1987. The order passed on the bail application of the 495
petitioner's associate was also referred to therein.
Thereafter,
the detaining authority had mentioned his satisfaction about the necessity of
the detention. [497F-H]
2. The
object of detention has to be prevention of a detenu from indulging in
activities prejudicial to the conservation of foreign exchange resources, and
not to frustrate his trial in a criminal case nor as a punitive measure. [498B]
In the instant case the role of the petitioner has been detailed in the grounds
showing how he got illegally siphoned the foreign exchange to the tune of about
2 crores of rupees out of the country. The grounds also refer to the statements
made by his associates which indicate that offences in respect of which the detenu
was accused of were so interlinked and continuous in character and were of such
nature that they fully justified the detention order. In the circumstances, the
satisfaction of the detaining authority specifically recorded cannot be
doubted. [498C,D,G] Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378, referred to.
3.
Merely because the prayer for bail made on behalf of the petitioner was not
opposed on behalf of the respondents before the Magistrate, it cannot be said
that his detention was not called for. Having regard to the circumstances
arising in the case, no such inference is permissible to be drawn in favour of
the petitioner. [498H; 499B] Ramesh Yadav v. District Magistrate, Etah, [1985]
4 SCC 232, distinguished.
CRIMINAL
APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 3115 of 1987.
From
the Judgment and Order dated 29.10.1987 of the Delhi High Court in Criminal
Writ Petition No. 219 of 1987.
Kapil Sibal,
Pinaki Mishra, Ms. Bina Gupta and Atul Tewari for the Petitioner.
Kuldip
Singh, Additional Solicitor General, V.C. Mahajan, C.V. Subba Rao, Ms. A. Subhashini,
Hemant Sharma and Arun Madan for the Respondents.
496
The Judgment of the Court was delivered by SHARMA, J. The petitioner has
challenged his order of detention made under Section 3(1) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as the COFEPOSA). He filed an application under
Article 226 of the Constitution before the Delhi High Court, being Writ
Petition No. 219 of 1987, which was dismissed by the judgment dated 29-10-1987 impugned in the S.L.P. (Crl.) 3115 of 1987. He has
also filed an application directly before this Court under Article 32 of the
Constitution which has been registered as Criminal Writ Petition No. 830 of
1987.
2. In
January 1987, on receipt of a confidential information by the Directorate of
Enforcement, Delhi Zone, New
Delhi, that a group
of persons were engaged in illegal activities causing remittances of large
amounts of money to foreign countries, an inquiry was instituted. It appeared
that the remittances were ostensibly made for import of certain goods on the
basis of forged documents and actually goods were not received from outside.
Information collected in the course of inquiry disclosed that a number of
persons were engaged in the criminal activities and were operating through five
Indian firms and a number of foreign firms in Hong Kong and Singapore. On 20-2-1987, one Sita Ram Aggarwal, associate of the petitioner,
disclosed during his interrogation, facts which indicated that the petitioner
was the main person directing the illegal activities. The petitioner was
apprehended in a hotel in Calcutta on 2-4-1987 and on being questioned, made certain statements.
He was
formally arrested the next day and was produced before the Additional Chief
Metropolitan Magistrate, New
Delhi, who remanded
him to judicial custody till 13-4-1987.
Sita
Ram Aggarwal, the aforesaid associate of the petitioner was in the meantime
enlarged on interim bail which wasextended after expiry of the initial period,
and, according to the case of the respondents, the detaining authority
apprehended that the petitioner also was likely to be released on bail on 13-4-1987. In this background the impugned order of detention
was passed and served on him.
The
application for bail by the petitioner which had already been filed was
actually allowed the same day, i.e. on 13-4-1987. After his representation against
the detention order was rejected, the petitioner moved the Delhi High Court for
a writ of habeas corpus which was dismissed by the order dated 29-10-1987 challenged in the special leave petition. The Writ
Petition No. 830 of 1987 was filed before this Court on 9-11-1987. Both the cases are being disposed of by this
judgment.
497
3.
When the cases were placed for preliminary hearing before us, we directed
notice to be issued only on two of the grounds taken by the petitioner, namely,
whether there was compelling necessity for passing the order as the petitioner
was already in judicial custody, and whether the order was passed for the
collateral purpose to frustrate the grant of bail and was punitive in nature.
4. The
learned counsel for the petitioner has contended that the impugned order
amounts to double detention of the petitioner as he was already in jail when
the detention order was made. Relying upon several decisions of this Court it
was argued that it was essential for the detaining authority to have been aware
of the fact that the petitioner was already in jail and was likely to be
released on bail and further he had to be satisfied that compelling necessity
existed for the detention. It is said that none of these conditions is
satisfied.
5. Mr.
Kuldip Singh, the learned Additional Solicitor General appearing on behalf of
the respondents said that there cannot be any manner of doubt that the detaining
authority was fully aware of the fact that the petitioner was already in
custody and that he was likely to be released on bail on 13-4-1987. Besides, relying on the counter affidavit, the
learned counsel placed before us the original records of the case for our
perusal. It appears that a note specifically mentioning these facts was on the
file and immediately there-after the detaining authority recorded his order. It
was urged on behalf of the petitioner that the respondents were not entitled to
rely on the original file for this purpose and that the awareness of the
detaining authority ought to have appeared from the grounds themselves and
unless that is shown, the detention order cannot be defended. Even assuming
that the stand taken on behalf of the petitioner is correct, he cannot succeed
in the present case. A perusal of the grounds which runs into many pages
clearly indicates that the detaining authority was conscious of the fact that
the petitioner was in judicial custody and was apprehensive that he would be
released on bail. In paragraph 24 of the grounds it was stated that the
petitioner had been arrested on 3-4-1987 and was in judicial custody till 13-4-1987 and in paragraph 26, the detaining
authority reminded the petitioner that an application for bail moved on his
behalf was going to be heard by the Additional Chief Metropolitan Magistrate on
13-4-1987. In paragraph 38, the order passed
on the bail application of the petitioner's associate Sita Ram Aggarwal was
referred to. Thereafter, the detaining authority had mentioned his satisfaction
about the necessity of the detention.
498
6. On
the question as to whether the detaining authority was satisfied about the
compelling necessity for the detention order also, there is no merit in the
petitioner's case. It is true that the order could not have been passed for the
purpose of circumventing the expected bail order. The object of detention has
to be prevention of a detenu from indulging in activities prejudicial to the
conservation of foreign exchange resources, and not to facilitate his trial in
a criminal case nor as a punitive measure. The learned Additional Solicitor
General placed before us the grounds served on the petitioner, at some length,
wherein it is inter alia stated that the petitioner was running a business firm
under the name and style of "M/s. B.N. Corporation" in Hong Kong as
also offices in other places including Singapore and got certain business firms
in India detailed therein registered in Nagaland under 'farzi' names and employed
a number of persons who were acting at his behest. The role of the petitioner
has been detailed in the grounds showing how he got illegally siphoned the
foreign exchange to the tune of about 2 crores of rupees out of the country.
Besides the aforementioned Sita Ram Aggarwal and the petitioner's nephew Subhash
Aggarwal, the other associates working in accordance with the direction of the
petitioner are mentioned along with their activities. The grounds also referred
to the statements made by Sita Ram Aggarwal which indicated that the petitioner
was travelling by air under assumed names and has been dodging the authorities
when they attempted to contact him, before he was apprehended in a Calcutta hotel.
It is
further said that the petitioner's firm M/s. B.N. Corporation of Hong Kong
received remittances through bank worth Rs.85-90 lacs during the year 1986 but
did not supply or ship any goods for which the invoices were supposed to have
been issued. Some of the documents are alleged to bear his signatures. We do
not think it necessary to deal with the grounds in greater detail. The
statements indicate that the offences in respect of which the detenu is accused
of are, in language of Mukharji, J., in Suraj Pal Sahu v. State of Maharashtra,
[1986] 4 SCC 378, "so interlinked and continuous in character and are of
such nature" that they fully justify the detention order. In the
circumstances, we do not doubt the satisfaction of the detaining authority
specifically recorded in paragraph 41 of the grounds.
7. It
was also urged on behalf of the petitioner that since the prayer for bail made
on behalf of the petitioner was not opposed on behalf of the respondents before
the Additional Chief Metropolitan Magistrate, it must be held that this
detention was not called for. Reliance was placed on paragraph 6 of the
judgment in Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232. The
learned counsel is not 499 correct in interpreting the observation of this
Court relied upon by him as laying down a principle for general application.
The Bench while considering the merits of the case before it, made the remark
in the background of the facts and circumstances of the case. Having regard to
the circumstances arising in the case before us, no such inference is permissible
to be drawn in favour of the petitioner. Besides, according to the respondents,
the bail application was as a matter of fact opposed. In any view of the
matter, this factor is not of much consequence in the facts of the present
case. In the result, both the writ application and the Special Leave Petition
are dismissed.
P.S.S.
Petitions dismissed.
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