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High Court Of Delhi
KIRPAL MOHAN VIRMANI - Appellant
Versus
TARUN ROY - Respondent
CRIMINAL APPEAL 39 of 1987
Decided On : 08/26/1987
(ii) Constitution of India, 1950-Article 22(5)-COFEPOSA Act-Order of detention- Delay of more than a month in disposil1g of the representation-No explanation justifying the delay-Order is liable to be quashed- (Mohinuddin' s case, 1987(3) Cri. 1 followed). (Para 11)
(iii) Constitution of India, 1950-Article 22(5)-COFEPOSA Act -Order of detention - Case of suppression of material facts by the sponsoring authority-Some of the important documents and circumstances, having a material bearing, concerning this case were not placed before the detaining authority and If examined were not relied upon -Effect his amounts to non- application of mind on the part of the detaining authority rendering the detention order Invalid.
Held, it is true that at the time when the order is to be passed, it is for the detaining authority to consider as to what are the relevant circumstances and then to form his opinion thereon. But once an order of detention is challenged in a Court of Law then the Court certainly has the jurisdiction to go into the question and to decide as to whether all the relevant documents/circumstances have been considered by the detaining authority or not. If the argument is taken to its logical conclusion, then the detaining authority can play havoc with the liberties of the individuals and bypass the safeguards provided by Article 22(4) and (5) of the Constitution of India. It will confer a very wide discretion on the detaining authority to ignore the material documents/evidence and rely upon an inconsequential and worthless evidence to base his subjective satisfaction and pass the order of detention. Take the case where the sponsoring authority has come to possession of numerous important and valuable documents on the basis of which a prudent person would definitely conclude that it is not a case for passing a detention order. If these documents are not placed before the detaining authority, it will be a case of withholding of material documents vitiating the order of detention and. If these documents are forwarded to the detaining authority then in such a situation the detaining authority would either ignore those documents or look into those documents and consider them irrelevant or unreliable. He would then base his subjective satisfaction to detain the person without the help of these material documents even though the some extent or to a large extent go in favour of the accused. Such a situation cannot be allowed to exist nor the liberty of an individual can be put to peril at the whims of the detaining authority.
It is a fundamental duty of a responsible officer of the Central Government, like the present one, to weigh the documents and if .he does not consider them to be relevant, then at least refer the same in the grounds of detention so that if his order is ultimately challenged in a Court of law, the Court can look into those documents and express its opinion either way. (Para 15 & 16)
Result:
Petition allowed.
( 1 ) WITH a view to prevent Shri Kirpalmohan Virmani, the present petitioner, from smuggling goods and abetting the smuggling of goods Shri Tarun Roy, Joint Secretary to the Government of India passed an order of his detention under the COFEPOSA Act (hereinafter referred to as theact) on 5/11/1986. The subjective satisfaction isbased on the following circumstances :
( 2 ) ON a specific information that truck No. DEL 3124 iscarrying Hashish concealed inside the machinery items, theofficers of the Customs Preventive Collectorate, West Bengalsucceeded in iniercepting the truck at Mogra on 12/07/1986and apprehended its three occupants, S/shri Joginder Singh,and Shiv Raj Singh. drivers and Ranjit Singh, cleaner. Ondetailed examination, it was found to be carrying two consignments comprising of 30 cases, containing 660 pieces of frontand rear engine mounting. M/s. Northern Exports, 116 Harinagar, New Delhi, was the consigner. This machinery wasmeant for export to M/s. Nazi Handi Altharthi Est. Jedda (Saudi Arabia ). Another consignment comprising of four packages containing one power press and two pieces of hand-operatedpress consigned by M/s. Modern Machinery and Instruments,parmanand Colony, Delhi was meant for export to Internationaltraders Ltd. , London. On close examination of the said machinery items, the Customs Officers recovered 743 kg. of Hashishconcealed inside the machinery. The said consignment forexport, were meant to be cleared through M]s. Lee and Muir-head (P) Ltd. India and M/s. Sheikh and Pandit, Calcutta. Themachinery alongwith Hashish and the truck were seized underthe provisions of the Customs Act, 1968 and Narcotic Drugsand Psychotropic Act. Later on, the business and residentialpremises of the clearing agents were searched but nothing incriminating was recovered.
( 3 ) SHRI Joginder Singh, driver of the truck in his statementdisclosed that the seized truck belonged to Shri Gopal Singh,who was running the same with a Transport Company, in thename and style of Nice Goods Carriers, Azad Market, Delhi. He also disclosed that the owner of the said transport companyis Harnam Singh, at whose instance he had gone to Mehraulion 6/07/1986 to pick up the machinery items. The loadingoperation was supervised by one Gurdeep Singh along with another person named Nirmal. Shri Shiv Raj Singh and Shri Ranjit Singh in their statements corroborated Joginder Singh in allits material particulars.
( 4 ) ON the next day, the officers of the Directorate of Revenue Intelligence, New Delhi located the farm house in Mehraulifrom where the machinery items had been loaded into the truck. The search of the farm house resulted in the recovery of 976kgs. of Hashish concealed under-ground in one of the out-housesof the farm and another quantity of 348 kg. of Hashish fromwithin the five power presses found lying in the compound. Besides, the Hashish and the machinery, a number of documents558including a blank letter-head of M/s. Virmani and Company, book-makers, Delhi Race Club, New Delhi was also recovered andseized. At the given address a firm by the name Radhey andcompany was found operating by one Mahesh Mehra, brotherin-law of the petitioner.
( 5 ) ON interrogation, Mahesh Mehra, disclosed that he wasmarried to the sister of the petitioner. He had purchased aplot of land at D-1/56, Vasant Vihar in 1980 and had constructed a house thereon in the year 1981. In June, 1982, thepetitioner shifted into the said house, while Mahesh Mehracame to occupy a part of the same house in 1985. However,in February, 1986, the whole of the house was let out to oneshri S. P. Rao, who in turn rented out the said house to therussian Embassy on a monthly rent of Rs. 25,000. He alsostated that the petitioner shifted to 101, Udai Park, New Delhi. Mahesh Mehra also identified the discarded household effectsand furniture of the petitioner lying dump in the farm house. From there, quite a number of documents were also taken intopossession.
( 6 ) ON the s
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