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TIRLOK NATH MITTAL Versus UNION OF INDIA

Criminal Writ Petition No. 707 of 1992 - Dated:- 30-7-1993 - H.K.SANDHU, J. JUDGEMENT HARMOHINDER KAUR SANDHU,J - ( 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 A .....

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ed 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 presen .....

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es 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 .....

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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 .....

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e 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 .....

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e 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. In the return filed by the respondents, preliminary objections were raised that the petition was liable to be dismissed on the ground. ( 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 th .....

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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. ( 4. ) In a rejoinder by the p .....

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respect to the jurisdiction of this Court. The respondents filed another counter affidavit on 27-5-1993, wherein it was alleged that the petitioner earlier filed a Criminal Writ Petition the High Court at Calcutta for quashing his detention order by alleging that he was resident of that place. He also produced some receipts issued by the landlord from whom premises were taken on rent but when that petition was listed for hearing on the question of jurisdiction the same was withdrawn on 31.3.1992 .....

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detention order was passed by the respondent authorities at the relevant time. He apprehended harassment at the hands of the respondents and filed the writ petition which wis withdrawn on 31-3-1992. He had been visiting Calcutta for his business assignment during the relevant period and thus he had acted within his permissible Fundamental Right to personal liberty. ( 6. ) I have heard Mr. D. D. Gupta, learned counsel for the petitioner and Mr. D. D. Sharma, learned counsel for the respondents an .....

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ow cause notice but only writ of habeas corpus was maintainable for the release of the detenu. The writ of Mandamus and Certiorari were called civil writs and the same could be fixed for decision before a Division Bench. This contention of the learned counsel for the respondents is devoid of any merit. It is correct that in the first petition in the heading of the petition, a prayer was made for the issuance of writ of certiorari for quashing show cause notice and a writ of Mandamus directing th .....

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when fundamental rights especially right to liberty is involved, there should be no restrictions in the exercise by the High Court of its extra ordinary writ jurisdiction under Article 226 of the Constitution of India, in order to safeguard those fundamental rights guaranteed by the Constitution. Illegality of the order can be gone into and the case of the petitioner cannot be thrown away on technical ground because the words writ of Certiorari or writ of Mandamus were used. In view of the pray .....

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rawn. Later on, the petitioner alleged himself to be resident of Ludhiana and invoked the jurisdiction of this Court when the alleged prejudicial activities had taken place in Delhi and the smuggled goods were recovered from a premises situated at Delhi. This fact is admitted by the petitioner that he had moved a writ petition in Calcutta High Court but that was not with respect to the impugned detention order. That writ petition was filed against summoning order dated 16-3-1992 for appearance b .....

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business to Ludhiana and had entered into a partnership with one Rakesh Kumar of Ludhiana, after executing a deed to that effect on 17.2.1991 copy of which was annexure P-9. He had also taken residential accommodation on rent which was situated in Dev Nagar, Ludhiana City. He moved a petition for his pre-arrest bail in this High Court, which was decided in the presence of Mr. H. S Giani, Sr. standing counsel for Union of India and at that time no objection was taken to the jurisdiction of the c .....

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onstitution of India, for quashing the impugned order was rightly filed in the court. When the respondents have been sending summons to the petitioner at his Ludhiana address, it cannot be said that no cause of action arose to the petitioner within the jurisdiction of this Court and the contention of the learned counsel for the respondents is held without merit. The solitary ground which was pressed before me on behalf of the petitioner for quashing the impugned order was delay in passing the or .....

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the detention order. This, however, cannot be treated as a satisfactory explanation. The petitioner had been appearing before the detaining authority since April, 1992 and it would not have taken months to record his statement. In the case of Lakshman Khatik v. The State of West Bengal, AIR 1974 Supreme Court 1264, it was observed as under :- "(A) Though more delay in passing a detention order is not conclusive the authorities concerned must have due regard to the object with which the orde .....

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