AMAN AHMED NAQVI Vs. UNION OF INDIA

JUDGEMENT

(1.) This criminal writ petition has been filed underArticle 226 of the Constitution of India read with Section 482 of Code ofCriminal Procedure for writ of Habeas Corpus or any other appropriate writ,order or direction for immediate release of the petitioner and setting aside thedetention order dated 30.10.90 passed by the Administrator, Delhi Administration under Section 3(1) and the Declaration dated 20.11.90 passed by SpecialSecretary to the Govt. of India, Ministry of Finance. Department of Revenue,New Delhi, under Section 9(1) of the COFEPOSA Act.

(2.) It may not be necessary to give all the different grounds challengingthe impugned orders. The petitioner filed Cr. M. 261/91 taking up anotherground for challenging the detention order and during the course of argumentslearned Counsel for the petitioner relies only on that ground. That ground isin para 16 of the writ petition which is as follows, "On the basis of the foregoingfacts and circumstances, the Administrator of the Union Territory of Delhi hasno hesitation in arriving at the conclusion that you have the inclination andpropensity in the matter of indulging in smuggling activities in an organised andclandestine manner and unless prevented you are likely to indulge in thesmuggling activities in the similar manner or otherwise, in future, when releasedon bail," In reply to this averment, respondent No. 2 i.e. the Administratorof Delhi states that this para does not require any reply.

(3.) I have beard arguments advanced by learned Counsel for the parties.Learned Counsel for the State admits that this point has been thrashed in anumber of authorities and detention orders wherein the words "or otherwise"have been used. have been quashed. My attention has been drawn to the caseof Sanjeev Khanna v.Union of India and Others in Crl. W. No. 430 of 1990wherein it was held on the basis of the case of Avtar Chand Kehar v. U.O.I, andOthers 1989 (3) Delhi Lawyer (DB) 374, "It was not possible for the petitionerto know the state of mind of the detaining Authority that in spite of his beingprevented from going abroad, he would smuggle goods otherwise as well."Therefore, the use of the words, 'or otherwise' in the grounds of detention wereheld to be too vague for the petitioner to understand their scope and intentmaking it impossible for him to mike any effective representation against hisdetention. In the present case also the detaining Authority has not clarified asto why it has used the words 'or otherwise' in the grounds of detention. I am,therefore, of the view that on this ground alone it can be said that the petitioner has been prevented from making an effective representation to the detainingauthority on which account the detention order stands vitiated.