SWARAN KUMAR Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) So far as the merits of the grounds of detention, I will not make any endeavour to prove into them. They pertain to the subjective satisfaction of the detaining authority) and I do not find any circumstances which can bring out that the power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act has been unwarrantedly or without any relevance exercised. The petitioner was alleged to have been apprehended on 8-8-1983 while taking delivery of 415 watches of foreign origin from G.M. Airways along with his brother-in-law. He was arrested under the Customs Act and was bailed out by the Court. The case against him has been filed and the trial proceeding.

(2.) . Since the present detention is the result of that singular act of the petitioner taking delivery of the said watches of foreign origin and he has already been allowed bail in that criminal prosecution, this court has to be very careful in scrutinising the validity of the order of preventive detention. As observed by the Supreme Court in Vijay Narain Singh v. State of Bihar and others, AIR 1984 Supreme Court 1334 the law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may nor be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charged which is to be tried by the criminal court.

(3.) . The action under the Conservation of Foreign Exchange and Prevention of Smuggling Activities' Act was set into motion by the custom authorities when they moved the Delhi Administration for this purpose on 4-10-1983. This was after the petitioner had been released on bail in the case resulting from the said incident of 8-8-1983. The detention order by the Delhi Administration was passed on 19-12-1983. It, however, could not be given effect to as the petitioner according to the Administration was not available. On 4-2-1984 the petitioner surrendered before the Court in which the custom's case was pending. He was sent to jail. It was in this state that the detention order was served upon him his detention on any of the grounds mentioned in the detention order, nor has assailed the nexus between the incident and order of detention. In fact this habeas corpus patition has been received from jail and later Mr. Ashok Gurnani appeared in court as his counsel.