TMI Blog1993 (7) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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. 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 and have perused the record. The grounds on which the detention order was challenged by the petitioner were not specifically contradicted by the respondents and the main contention of the respondents was with respect to the maintainability of the petition and jurisdiction of this Court to entertain the petition. Firstly, it was urged that the petitioner had filed criminal writ petition under Article 226 of the Constitution of India for issuance of a writ of mandamus, certiorari for quashing the show 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Calcutta in connection with his business and had taken a house on rent there. ( 8. ) In the instance case the petitioner contended that he had shifted his 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 court. The order allowing bail to the petitioner was annexure P-5. The respondents had taken issuing, summons to the petitioner at his Ludhiana address, copy of which was annexure P-11. He also received summons for his appearance for 6.7.1992 and then on 9.4.1992 issued by the Customs Collectorate, at Ludhiana address only. The impugned order annexure P-15 was also sent on the residential address of the petitioner at Ludhiana. In these circumstance, the present petition under Article 226 of the Constitution of India, for quashing the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip in the case of maintenance of Internal Security Act but the ratio of the judgment would equally apply to cases under the COFEPOSA Act as well and, this judgment will also apply to the facts of the present case. In Balkar Singh v. Union of India and others, 1992(2) CLR 531, there was delay of about 3-1/2 months in passing the detention order and no explanation for the delay was forth coming. It was held that the detention order was unsustainable and the same was quashed. ( 10. ) In the instant case the detention order was passed after a period of six months of the alleged activity and the delay has not been explained. So, a serious doubt arises with respect to the subjective satisfaction of the detaining authority and the detention order is liable to be quashed on this ground alone. Even otherwise, detention order passed against Darshan Lal Anand on similar grounds was quashed on 19.1.1993. Copy of that judgment has been placed on cord. The grounds of detention and the allegations against Darshan Lal Anand and the present petitioner being the same, the impugned order is also liable to be quashed in order to maintain parity. In view of the findings recorded above. I allow t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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