Kirti Kumar Nirula Vs.
State of Maharashtra & Ors  Insc 558 (17 September 2004)
N.Santosh Hegde &
S.B.Sinha (Arising out of Slp(Crl.)No.3387 of 2004) Santosh Hegde,J.
Heard learned counsel for the parties.
This is an appeal filed against the judgment and order of the High Court of
Judicature at Bombay dated 24th of March, 2004 whereby the said High Court
dismissed the criminal writ petition filed by the appellant herein challenging
the detention of his brother Rajinder Nirula made under Section 3(1) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Brief facts necessary for the disposal of this appeal are as follows:
On an information received by the Directorate of Revenue Intelligence,
Mumbai, the Officers kept watch over the activities of the appellant in transit
lounge of CST Airport, Mumbai on the night of 31st of July, 2002. The detenu
who was to go to Ahmedabad in an international flight had come from Delhi to Bombay
by Indian Airlines flight. He was apprehended when he handed over foreign
currency of 700 notes of US $ in denomination of 100 totalling of US $ 70,000
equivalent to Indian Rs.35 lacs along with four mobile phones to one Tilak Raj
Sharma in the transit lounge at Sahara Airport. Both the detenu and the said
Tilak Raj Sharma were arrested and the statements under Section 108 of the
Customs Act were recorded. It is pursuant to this incident after investigation
an order of detention under Section 3 of the said Act was issued against the
detenu on 18.1.2003, consequently, he has been in detention since 30th September, 2003.
The period of detention being one year. Tilak Raj Sharma the person who
received the above currency and the cell phones was also similarly detained.
The detention of these persons came to be challenged by way of writ petitions
before the High Court.
Criminal Writ Petition filed challenging the detention of Tilak Raj Sharma
came to be allowed by the High Court as per its order dated 19th September,
2003 wherein among other things the High Court came to the conclusion that
there was no application of mind by the detaining authority to certain material
facts as also on the ground that the detention being based on a single incident
was liable to be quashed.
The appellant in his writ petition before the High Court has raised various
grounds including the ground of single incident based on which the detention
order of co-detenu of Tilak Raj Sharma was quashed. It was also urged that the
benefit given to the co-detenu should also be made available to the detenu in
The High Court by a detailed order after considering all the facts and law
placed before it came to the conclusion that the detention order in regard to
the present detenu, namely, Rajinder Nirula did not suffer from any such
infirmity as was noticed by the court in the case of Tilak Raj Sharma and came
to the conclusion that a valid detention order could also be based on single
incident, hence, dismissed the writ petition.
In this appeal, Ms.Sangeeta Bhyana, learned counsel appearing for the
appellant urged three points for our consideration. They are : - (i) The order
of detention being based on a single incident, the same was liable to be
quashed as the said incident alone could not have been the basis for an opinion
being formed by the detaining authority that the detenu would indulge in such
activities in future also.
(ii) The detention order of the co-detenu of Tilak Raj Sharma being quashed
by the High Court which was based on the very same grounds on which present
detenu's detention order is based, he is also entitled to the same benefit.
(iii) There was inordinate and unexplained delay in considering the
representation submitted by the detenu to the detaining authority and the State
Learned counsel has cited various decisions of this Court in support of her
While considering the first argument of the learned counsel, we must notice
at the outset that there is no statutory provision against detaining a person
based on a single incident provided the detaining authority had material before
it to come to a reasonable opinion that from the surrounding circumstances
coupled with the incident in question a satisfaction as to the future illegal
activities of the detenu could be inferred. This is clear from the very
judgment sought to be relied upon by the learned counsel in the case of
Chowdarapu Raghunandan vs. State of Tamil Nadu & Ors.
(JT 2002 (3) SC 110) wherein at para 13 of the said judgment this Court held
that in an appropriate case, an inference could legitimately be drawn even from
a single incident of smuggling that the person may indulge in smuggling
activity but for that purpose antecedents and nature of the activities carried
out by a person are required to be taken into consideration for reaching
justifiable satisfaction that the person was engaged in smuggling and that with
a view to prevent further smuggling, it was necessary to detain him.
We will now consider the facts of this case to find out whether a single
incident in this case would be sufficient to detain the appellant, keeping in
mind the principle of law enunciated by this Court in the above referred case.
The fact that the detenu was arrested at the Airport while he was handing
over foreign currency totalling of US $ 70,000 with four mobile phones to the
co-detenu Tilak Raj Sharma is not denied. The explanation of the detenu is that
he had brought the same when he came into India from abroad and had declared
the same to the Custom Authorities as required in law, hence, there is no
illegality in his taking back this money with him when he is going out of
India. This explanation cannot be accepted because of the fact that if he had
brought the money and he wanted to take the money out of India then there was
no need for him to hand over this money to Tilak Raj Sharma at the Airport
lounge. Therefore, we will have to proceed on the basis that the detenu was
arrested when he handed over the foreign currency to Tilak Raj Sharma at the
Airport. Now this incident being a single incident, we will have to see whether
there was any other material before the detaining authority to come to a
legitimate satisfaction that the detanu in this case would indulge in similar
activities of smuggling currency in future also. In this regard, it is seen
from the material placed on record that the detenue had a work permit to work
in UAE but on enquiry it was found that he was neither working in UAE nor was a
regular resident of UAE. From the material placed before the detaining
authority, it is noticed that these detenue had travelled abroad number of
times and also he had made it a practice to travel between Delhi Bombay Ahmedabad
in a particular manner, that is, he would take a domestic flight of Indian
Airlines from Delhi to Bombay and in Bombay he will change over an
international flight which touches Ahmedabad on the way. It is also seen from
the records in almost all these flights the co-detenu Tilak Raj Sharma used to
be a co-passenger. This detenu had taken 16 such flights during a short period
of time and it is during one or such flights he was arrested, as stated above.
Thus on the facts and circumstances of this case, we are in agreement with the
finding of the High Court that the material placed before the detaining
authority coupled with the fact of arrest and seizure of the foreign currency
which is handed over by the detenu to Tilak Raj Sharma are sufficient to form a
reasonable conclusion that the detenu is likely to indulge in similar
activities in future also. Therefore, we find no merit in this argument.
Coming to the second contention of the learned counsel for the appellant
that the co-detenu having been released, benefit of the said order should also
be extended to the detenu in this case.
We notice that the High Court while considering this argument came to the
conclusion that the detention order of the co-detenu Tilak Raj Sharma was set
aside by the High Court on two grounds : one of the grounds being non
application of mind because in the grounds of detention it was mentioned that
the detenu in the present case had handed over the money in assorted currency
and not only in American Dollars. This erroneous statement noticed by the
detaining authority was not explained by the respondents in that case in the
counter affidavit. Therefore, to that extent the High Court came to the
conclusion that there was a non application of mind. While in the present case
in the counter filed before this Court the department specifically adverted to
the said error and stated that that was a typographical error which should be
ignored and it was also contended that by such error the opinion formed by the
detaining authority did not, in any manner, get vitiated. The High Court
accepted this argument and we find no reason to differ from the same. We are
also of the opinion that this argument pointed out in the grounds of detention
has not, in any manner, prejudiced the detenu in making his representation.
We do not think that the judgments relied upon by the learned counsel in
support of her contention could really help the detenu on the facts of this
case. As a matter of fact, the High Court in this regard rightly relied on a
judgment of this Court in the case of Pushpa Devi M.Jatia vs. M.L.Wadhawan,
Additional Secretary, Government of India & Ors. (1987 (3) SCC 367) wherein
this Court ignored similar minor error found in the detention order.
Coming to the last contention of the learned counsel for the appellant
pertaining to the delay in consideration of his representation, we notice that
this is not a ground which was taken before the High Court. Be that as it may,
the same is raised in this appeal in the following manner :
"Because the High Court has erred in having failed to appreciate that
it was incumbent upon the detaining authority and the State Government to
satisfy the Hon'ble Court as to whether the representation submitted by the
detenu to the Advisory Board at the time of its meeting on 6.11.2003 was
considered by the detaining authority and the State Government independently of
each other and uninfluenced by the opinion of the Advisory Board and as to
whether the same was so considered expeditiously and without any avoidable
delay and as to whether the replies by the detaining authority and the State
Government were forwarded and served on the detenu without any loss of time.
The Hon'ble High Court failed to appreciate that the detention of the detenu
was liable to be held as violative of Article 22(5) of the Constitution
inasmuch as the detaining authority and the State Government had failed to
satisfy the Hon'ble Court on the aforesaid issues." In the counter affidavit
filed in this regard on behalf of the detaining authority, it is stated that
the appellant had submitted an unsigned and undated representation jointly
addressed to the Advisory Board, detaining authority, the State Government and
the Central Government and the same was received by the Government along with a
copy of the report of the Advisory Board on 11.12.2003. After explaining the
time taken for considering the said representation in the said counter
affidavit, it is stated that it was rejected on 17.12.2003 and the order of
detention was confirmed on 20.12.2003. The affidavit further states that the
representation which was forwarded along with the report of the Advisory Board
was considered and rejected since there was no signature of the detenu on the
said representation as such it was not a representation within the meaning of
Article 22(5) of the Constitution. This information of rejection was conveyed
to the detenu on 16.1.2004. From the above pleadings, it is clear that the
detenu who did not send any representation immediately on receipt of the
detention order and the material accompanying therein deliberately tried to
mislead the authorities by filing an undated and unsigned representation
simultaneously to the State Government, the Union Government and the detaining
authority which was sent to the Advisory Board knowing very well that this was
likely to cause some delay, thus he has tried to mislead the authorities by the
above act of his. We are in agreement with the stand taken by the respondent-State
that undated and unsigned representation cannot be treated as a representation
within the meaning of Article 22(5) of the Constitution requiring immediate
attention of the authorities concerned.
In the said view of the matter, we are satisfied that there was no delay in
considering the representation of the appellant. Hence, we find no merit in
this appeal and the same is dismissed.