Mohan Vs. Union of India & Ors  Insc 105
(1 March 2002)
C. Banerjee & Y.K. Sabharwal Banerjee, J.
it is true that law Courts detaste the very concept of detention without trial
and do not favour the same, but the constitutional sanction of preventive
detention cannot in any way be decried having regard to the prevalent
conditions social and economic. The scheme as envisaged by the founding
fathers, however, has its rigours as well and subject to the guarantees as
enshrined in Part III of the Constitution.
detention admittedly is an 'invasion of personal liberty' and it is a duty cast
on to the law Courts to satisfy itself in regard to the circumstances under
which such a preventive detention has been ordered in the event, however, the
same does not conform to the requirements of the concept of justice as is
available in the justice delivery system of the country, the law Courts would
not shirk of its responsibility to provide relief to the person concerned. The
guardian-angel of the Constitution stand poised with a responsibility to
zealously act as a watchdog so that injustice does not occur : Let us not be
understood to mean however that there ought to be any overzealousness since the
same may lend assistance to a situation which is otherwise not compatible with
social good and benefit.
at this stage to the facts of the matter, as is evident from the present Writ
Petition under Article 32 of the Constitution, challenging an order of
detention dated 1st March, 2001 under Section 3(1) (i) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 it appears
that the petitioner is presently confined in Central Prison, Chennai, Tamil Nadu
and it is this detention which the petitioner contended is without the
authority of law and constitute an infringement of his guaranteed fundamental
reason for detention has been and as recorded by the Department is that the
Bill of Entry No.235337 dated 19.7.2000 was filed in the name of M/s Goutham
Enterprises for clearance of 300 numbers of ACER CD ROM drive 50X by Customs
House Agents, M/s Sanjay Forwarders (P) Ltd. According to the Department this
Bill of Entry was filed in the name of M/s Goutham Enterprises but the latter
expressly intimated the department stating that they did not place any order
for import purposes. The department made an investigation and the goods were
seized under the provisions of Customs Act on 24.7.2000.
total CIF value according to the department was Rs.43,53,189/- and
Rs.57,87,200/- was the market value.
petitioner appeared before the Customs Department on 24.7.2000 and the officers
detained him and obtained the statements and was subsequently arrested on
25.7.2000 for an offence under Sections 132 and 135 of Customs Act. The
principal allegation against the petitioner/detenu being misdeclaration in the
Bill of Entry. The petitioner/detenu however was remanded to judicial custody
the detenu was enlarged on bail by the learned Additional Chief Metropolitan
Magistrate on 11.8.2000.
Department after the completion of investigation issued a show-cause notice
under Section 124 of the Customs Act, 1962 on 19.9.2000.
though the incident noticed above took place on 24.7.2000 and other important
documents have come into existence immediately thereafter, the detaining
authority did not pass the detention order immediately but only after a lapse
of about seven months, i.e. on 1.3.2000. During this interregnum, however, the detenu
admittedly did not indulge in any illegal activities and it is on this context
Mr. Mani, learned advocate appearing in support of the petition with his usual
eloquence contended that the incident of 24th July, 2000 had become stale and
irrelevant and it is too remote in point of time and as such question of there
being any detention order on the basis thereof would not arise. Mr. Mani
further contended upon reference to the fact situation as adverted herein
before in this judgment that the detenu was arrested on 25.7.2000 for offences
under Sections 132 and 135 of Customs Act and was remanded to judicial custody
was however enlarged on bail by the learned Additional Chief Metropolitan
Magistrate (EO.III) on 11.8.2000 and the Department after completing the
investigation issued the required show-cause notice on 19.9.2000.
factual score thus lends a substantial credence to the submissions of Mr. Mani
as regards the charges being too stale to be taken recourse to in the matter of
issuance of the order of detention on 1st March, 2001 more so, having regard to
the admitted factum of non-involvement of the detenu in any illegal activity
and thus consequently too remote as well in point of time to be the basis of an
order of detention. .
in elaboration of his submissions Mr. Mani contended that once the show-cause
notice has been issued, there cannot be any manner of doubt that the
investigation is complete, but in the contextual facts the detaining authority
has failed to apply its mind as regards the issue of unreasonable delay in
passing the order of detention.
applicability of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act envisages issuance of the detention order upon
recording of satisfaction that in the event the detenu is allowed to remain at
large, the latter will indulge in such activities and that normal criminal law
of the country would not have the desired effect of effectively preventing the detenu
from indulging in such activities it is on this score Mr. Mani submitted that
by reason of the factum of long lapse of time, the question of applicability of
the provisions of the Act would not arise.
would like to record, however, another more important feature at this juncture:
On an application before the Settlement Commission under Section 127-B of the
Customs Act filed by the detenu on 8.2.2001 the Settlement Commission on
15.2.2001 after hearing the applicants and the Department, was pleased to admit
the applications of the detenu and passed an order directing the detenu to make
payment of additional duty of Rs.11,56,803/- within 30 days from the date of
receipt of the order. Apart therefrom, the Commission further observed that the
Commission shall have the exclusive jurisdiction on the case of the detenu, in
terms of Section 127-F (2) of the Customs Act, 1962 to exercise the powers and
perform the functions of any officer of customs, to the exclusion of all other
officers of customs and it is on this score that Mr. Mani contended and if we
may say so, rightly, that both the application and the order of the Settlement
Commission, Southern Bench, Chennai dated 15.2.2001 ought to have been placed
before the Detaining Authority The records however depict otherwise : Neither
the application nor the order passed thereon did see the light of the day
before the Detaining Authority.
is no manner of doubt that the documents mentioned above are not only important
but of definite impact in the matter of detention and having a bearing on to
the issue. Under the circumstances, there thus stands a bounden obligation to
place the same before the Detaining Authority for fair play and justice. The
sponsoring authority conveniently kept it to itself a very relevant material
which could have tilted the scale before the Detaining Authority. Needless to
record that the sponsoring authority was able to place the letter from the
Special Public Prosecutor regarding the condition of bail relaxation of the detenu
dated 28.2.2001, but failed to place the orders of the Settlement Commission
dated 8.2.2001 and 15.2.2001. Is it a lapse unintended or a deliberate failure?
The learned senior advocate appearing for the respondents however hadn't had
any answer to the same. The factum of non-placement of relevant documents, in
our view, has had a serious effect and definite inroad to petitioner's liberty
without application of mind. Non-placement of the order of payment of
additional duty of Rs.11,56,803/- within 30 days from the receipt of the order
of the Commission has not only transgressed the rights of the petitioner but in
our view speaks a volume about the conduct of the officials rendering the
proceeding before the Detaining Authority vitiated and thus turned out to be
reason of the aforesaid, we feel it expedient not to express any opinion as
regards the question of delay rendering the charges stale or being too remote.
A statute has been engrafted in the Statute Book but that does not, however,
mean and imply that the concerned official would be at liberty to whittle down
the liberty of the citizens of the country. The constitutional sanction for
preventive detention cannot be said to be without any limitation and
apprehending such a conduct of the concerned officials, the founding fathers
probably laid down its safeguards from the misuse of the powers as conferred.
The hallmark of the concept of justice, as is available in the justice delivery
system of the country is that the conduct of the Detaining Authority or as a
matter of fact any governmental authority ought to be fair and reasonable. The
accepted methodology of governmental working should always be in tune with the
concept of fairness and not de hors the same a person is being placed under
detention without trial and there is neither any scope for overzealous nor
acting in a manner without due and proper application of mind in either of the
situation law Courts should be able to protect the individual from the
administrative ipse dixit. The draconian concept of law has had its departure
quite some time back and rule of law is the order of the day. It is this rule
of law which should prompt the law Courts to act in a manner fair and
reasonable having due regard to the nature of the offences and vis-a-vis the
liberty of the citizens. The order as passed by the Settlement Commission on
15th February, 2001 directing the detenu to make payment of the additional duty
as noticed above, cannot but be termed to be a very relevant material having a
direct impact on the issue and in the event of non-placement of the same before
the detaining authority, question of affirmation of the detention order would
not arise. The observations of this Court in Rajindra v. Commissioner of
Police, Nagpur Division & Anr. (1994 (2) Supp. SCC 716) recording the need
and requirement of the Central Government officials to be alive to the
situation cannot but be said to apposite in the context.
the other issue pertains to delayed consideration of the representation and it
is on this score, a Three-Judge Bench decision in Rajammal v. State of Tamil Nadu
& Anr. (1999 (1) SCC 417) unequivocally condemned the delay for even five
days in the manner as below:
are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998
remains unexplained and such unexplained delay has vitiated further detention
of the detenu. The corollary thereof is that further detention must necessarily
be disallowed. We, therefore, allow this appeal and set aside the impugned
direct the appellant-detenu to be set at large forthwith." Mr. Verma,
learned senior advocate appearing for the respondent-State made a frantic bid
to contend the enormity and gravity of the offence alleged against the
petitioner: In our view, however, the same does not require further scrutiny by
reason of the express deprecation of the same by this Court in Kundanbhai Dulabhai
Shaikh v. Distt. Magistrate, Ahmedabad & Ors. (1996(3) SCC 195).
question of representation, the records depict that the same was sent to the
President of India on 10th April, 2001 and the same was sent to the Ministry of
Finance on August 16, 2001 some explanation has been put forth, but we need
not, however, detain ourselves in dealing with the same since we wish to state
that non-placement of relevant materials before the detaining authority by the
sponsoring authority is not only a lapse but a serious lapse on the part of the
officials resulting in the order of detention to be declared unlawful and
illegal and thus resultantly cannot be sustained.
view as above, the writ petition succeeds. The detention order stands quashed
and set aside. V.C. Mohan son of V. Velayutham be released forthwith.
C. Banerjee) J.
March 1, 2002.