ASHOK GUPTA Vs. SUPERINTENDENT CENTRAL JAIL

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the validity of an order of detention dated the 3rd of December, 1984 passed against his father Prem Prakash Gupta (here - in - after called the detenu). The detenu has been detained by virtue of an order under section 3(1) of the conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (here-in-after called the Act) with a view to preventing him from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods.

(2.) In pursuance of a specific intelligence an attempted was made on 26th November, 1984 by the Officers, Directors of Revenue Intelligence, New Delhi to intercept a new Maruti car bearing temporary registration No. HRU - 516A being driven by Jasvinder Singh after Prem Prakash had got inside the car along with the sale proceeds of smuggled gold. On seeing the Officers of the Directorate of Revenue Intelligence approaching the said car, Jasvinder Singh along with Prem Prakash Gupta fled away. However, they were finally intercepted after a hot cbase with the assistance of police. As a result of search of Sarvshri Jasvinder Singh and Prem Prakash Gupta and the Maruti car, Indian currency amounting to Rs. 2,04,000/- was recovered and seized under the provisions of Customs Act 1962 along with Maruti car used by the said two persons. Residential premises of the detenu located at 1778. Kucha Lattoo Shah, Dariba Kalan, Delhi were searched on 26tui November, 1984 by the Officers of the Directorate of Revenue Intelligence, but no contraband or incriminating documents were recovered. Residential premises of Naresh, the supplier of smuggled gold located at 37/28, East Patel Nagar, New Delhi and residential and business premises of Sansar Chand Sharma, the ultimate receiver of smuggled gold located at G2/1O, Krishna Nagar, Delhi and shop No. 2, Mohini. Market, Kucha Mahajani, Delhi - 6 were also searched by the Officers of the Directorate of Revenue Intelligence on 27th November, 1984 hut neither any contraband nor any incriminating documents were recovered from his shop premises. As a result of search of residential premises of Sansar Chand Sharma, smuggled goods collectively valued at Rs. 19,600/- were recovered and seized under the Customs Act 1962. However, Sarvshri Naresh and Sansar Chand Sharma were not found in their normal places of residence and appear to have absconded for the fear of apprehension.

(3.) Consequent to the search and seizure, Statements of Jasvinder Singh and the detenu were recorded under section 108 of the Customs Act. In a detailed statement the detenu, interalia, stated that Rs. 2,00,000/- seized from his possession was the sale proceeds of the smuggled gold weighing 1 Kg. which was disposed of by him to Sansar Chand. Relying on the statements and documents mentioned in the grounds of detention, the impugned order was passed on 3rd December, 1984 and on the same day, the detenu was taken in detention and a copy of the order along with the grounds of detention were served on him. The detention order has been challenged on diverse grounds. It was argued that the order was invalid inasmuch as the retractions made by the detenu in his two bail applications dated 18.11.1984 and 3.12.1984 were not taken into consideration by the Detaining Authority. It was further contended that a telegram sent by the son of the detenu to the Director Revenue Intelligence on 28th November, 1984 which was also in the nature of retraction, was not taken into consideration. It was further contended, though not pleaded in the petition, that the retractions by Amrit Lal and Jasvinder Singh were not taken into consideration. By a subsequent affidavit, the petitioner also made a grievance to the affect that certain documents and facts were suppressed from the Detaining Authority. Those documents are the documents recovered from Jasvinder Singh and Maruti car, copies of applications moved by Sansar Chand Sharma in the Court of the AddI. Chief Metropolitan Magistrate. Replies to the applications by the Director, Revenue Intelligence, letter and application moved by U.K. Sharma on behalf of Smt. Prabha Sharma and Sansar Chand Sharma. By yet another application moved by the petitioner, he challenged the validity of section 5A of the Act as being ultra vires, Articles 21 and 22 of the Constitution of India. The attack is mainly on the ground that the subjective satisfaction leading to the detention order is based on several grounds and a provision which provides that anyone ground should be regarded as the basis of the whole order is contrary to the safeguards provided in Article 22 of the Constitution.