TIRLOK NATH MITTAL Vs. UNION OF INDIA

JUDGEMENT

(1.) T . N. Mittal, petitioner, has filed this writ petition under Article 226 of the Constitution of India, for issuance of a writ of certiorari or any other writ or direction for quashing the detention order dated 17th September, 1992 passed by Joint Secretary to the Govt. of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the Act), with a view to prevent him from engaging in dealing or concealing the smuggled goods in future. He also prayed for a direction to the respondent not to execute the warrant of detention issued against him in pursuance of the detention order.

(2.) THE brief facts of the case as given in the writ petition, as well as in the written statement filed by the respondents are that on 15-3-1992, on receipt of information, respondent No 2 searched the godown located in building No. 12/21 Shakti Nagar, Delhi, which was in possession of Mr. A. Sebastian alias A. Sharma. From that building 252 V.C.Ps. and some boxes of ball bearings which were stated to be of foreign origin were recovered. Mr. A. Sebastian was arrested and his statement was recorded on 15-3-1992 and 16.3.1992. In that statement he deposed that the building in question belonged to one Mr. Darshan Lal Anand alias Baby and he had taken the same on rent. He had come into contact with the present petitioner about three years ago in Burma Bazar, Madras where he helped him in the purchase of smuggled electronic items like V.C.Ps and V.C.Rs. His business was not profitable, so he came to Delhi at the instance of the petitioner. The petitioner introduced him to various shop-keepers in Delhi including Sudhir Chaudhary. He assisted the petitioner in the disposal of smuggled ball bearings and received 3% commission on sale. The petitioner introduced him to other partners in smuggling activities i.e. D. L. Anand and Roop Kumar. Mr. D. L. Anand master-minded all the smuggling activities. He further stated that he was given Maruti Van No. WNW 9795 by the petitioner for facilitating the sale of smuggled goods. He used to transport the goods to a pre decided place in the market and sold the same to the customers. The sale proceeds were handed over by him to the petitioner, Roop Kumar and D. L. Anand. Regarding some bank slips that were seized from the premises, he deposed that all those slips dated 22-12-1991 in the names of A. Sharma, Roop Kumar, Darshan Lal Anand and the petitioner were for Rs. 49,000/- each and these amounts were deposited in the name of each person for issuance of bank drafts. One slip was in the name of Lakpat Singh who was Accountant of the petitioner. On the statement of Mr. A. Sibestian and other circumstantial evidence, grounds of detention of the petitioner were formulated and the impugned detention order (annexure P-15) was passed. The petitioner assailed the detention order annexure P-15 on the grounds that no smuggled goods were recovered from his possession at any time and he had absolutely no concern with the goods alleged to have been recovered from the premises in occupation of Mr. D. L. Subastian alias A. Sharma. As soon as, he received a show cause notice, he submitted his reply annexure P-4 to the effect that he had not nothing to do with the alleged seized goods or Maruti Van in question. His only concern was that he had taken a part of the premises on rent from Mr. D. L. Anand which he had sub-let to A. Sabestian. vide rent deed dated 22.2.1991 annexure P-8. In fact on suffering loss in the business, he shifted to Ludhiana and was residing there. His house at Ludhiana was searched but no recovery was effected. The impugned order was passed after a lapse of six months and there was no legal justification to pass the order under the Act against him after such a long delay when he was available for interrogation all the time. Although, the order was passed on 7-9-1992, it was not executed till the present petition was filed and it was liable to quashed on the ground of delay in executing the same. The material used for passing the impugned order was vague and was based on extraneous matters. The statements of Mr. A. Sebastian alias A. Sharma annexures P2 and P3 which were relied upon were recorded under duress and pressure and on the very next day i. e. 17-3-1992 when A. Sharma was produced in the court of A C. M.M., New Delhi, he submitted application annexure P-1 alleging that his statements were recorded under duress, threat and pressure. The retracted statements therefore, could be not become basis for the subjective satisfaction of the detaining authority, Mr. A. Sharma, in whose possession the goods were found had already been enlarged on bail and no detention order was passed against him. The detention order passed against another co accused Mr. Darshan Lal Anand, was quashed on 19.1.1993. The petitioner was never involved in any transaction pertaining to alleged smuggled goods seized on 15-3-1992 and the impugned order was passed as a punitive measure to harm his reputation and goodwill.

(3.) THAT the offence was committed at Delhi and the proceedings were also initiated there and thus, the court at Delhi alone had the jurisdiction to entertain the petition. It was further contended that the petitioner filed criminal writ petition under Article 226 of the Constitution of India for issuance of writ of Mandamus and Certiorari for quashing the show cause notice and for direction to the respondents not to execute the warrant of detention only writ of habeas corpus was maintainable for the release of the detenu. On merits it was maintained that the petitioner appeared before the Custom Authorities only on 29.4.1992 and his statement continued till July, 1992. The detention order was passed when the investigation was over and there was no delay on the part of the detaining authority in passing the detention order. No time limit was imposed on the detaining authority under the Act to form is subjective satisfaction. The order was passed by the detaining authority after du-application of mind having regard to all the materials placed before it. It could not be executed as the petitioner was not available.