RAVINDER KUMAR BHANDARI Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India challenge is made to the detention of the petitioner, Ravinder Kumar Bhandari, as per the order of detention issued on January 19, 1988 by order and in the name of the Administrator, Union Territory of Delhi, respondent No. 2, under the provisions of Sec. 3(1) read with Sec. 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 with a view to preventing the petitioner from engaging in transporting, selling and keeping smuggled goods and also dealing in smuggled goods viz. gold. The first ground of attack to the detention of the petitioner is that the order of detention as served on the petitioner is dated January 19, 1988, whereas the grounds of detention served on the petitioner are dated January 21, 1988 and that showed that the grounds of detention were not framed and formulated simultaneously and contemporaneously with the making of the order of detention. A copy of the order of detention as served on the petitioner bears the number of the Delhi Administration, Department of Home (Police-11) and the date of January 19, 1988 at its top. The following note is appended at the bottom of the order on the copy of the order as served on the detenu : - "By order and in the name of the Administrator of the Union Territory of Delhi." Similarly, at the top of the copy of the grounds of detention the same number of the Department of the Delhi Administration is given. The date given over there is, however, January 21,1988. At the foot of the grounds of detention also there is the same note purporting to show that the grounds of detention were also prepared and served by order and in the name of the Administrator of the Union Territory of Delhi. A copy of the order of detention was admittedly served on the petitioner on January 19, 1988 and the copy of the grounds was served on him on January 21, 1988.

(2.) Shri A.S. Dagar, Deputy Secretary (Home), Delhi Administration. Delhi filed his affidavit on behalf of the Administrator, Union Territory of Delhi, as a counter to the petition. In the corresponding para 9 of the affidavit Mr. Dagar stated that the contents of para 9 are wrong and are denied. The draft detention order and grounds of detention were approved by the detaining authority simultaneously and contemporaneously. It is further stated that whereas orders 'were issued' on January 19, 1988 the grounds of detention 'were supplied' on January 21, 1988 within the stipulated period and further that the grounds of detention were served well within time. This counter as filed on behalf of respondent No. 2 is obviously of no avail to the respondents as nothing is stated therein as to on which date the orders of detention and the grounds of detention were made, which was necessary for the respondents to disclose for the specific denial of the averment of the petitioner that both these were not passed on one and the same date and as their copies as served on the petitioner bore different dates. The Supreme Court was confronted with a similar situation in the case Sunder Lal Raid v. K.K. Dwivedi & Ors , Writ Petition (Criminal) No. 97 of 1986, decided on March 7, 1986, acopy of which was filed by Mr. Harjinder Singh on the record of this case, In that case the detenu had taken the plea that the order of detention was made on July 11, 1985 and bore that date, but that the grounds were prepared on July 15, 1985 and also bore the date July 15, 1985 and that that was in contravention of law as declared by the Supreme Court in earlier cases. An Under Secretary of the Government of India who was chosen to file the counter affidavit on behalf of respondent No. 1, Union of India; in the corresponding para 6 of his affidavit stated as below:- "Ground I has no substance. It is wrong to allege that the grounds of detention were prepared on the 15th July, 1986. The detention order is dated 11.7.1985 and the grounds detention are dated 15.785. These are the dates on which the above two orders were dated and issued." The Supreme Court disposed of the writ petition by making the following observation and order :- "To say the least, this statement makes no sense and to use stronger language it is scandulous. In view of the counter-affidavit, we have no option but to quash the orders of detention and direct that the detenus should be released forthwith. "

(3.) I, however, with a view to satisfy myself as to the correct position about the date of the making of the detention order and the grounds of detention, looked into the record of the case as produced by respondent No. 2. The relevant portion of the same was also shown to Mr. Harjinder Singh learned counsel for the petitioner. The records revealed that a typed note given the salient features of the case was put up by the Department of Home of the Union Territory of Delhi to the Administrator wherein there is a reference to the grounds of detention as formulated against the petitioner, a copy of which was stated to be placed on the file. Below this note the Administrator passed the order "Approved as above. Speaking order is issued separately." The said note bore the date of January 15, 1988. A typed order of detention which is duly signed by the Administrator without giving any date thereon is the next page on the file concerned. A cyclostyled copy having the same contents as those of the copy of grounds of detention served on the petitioner is also placed in the file of the case.