TMI Blog1999 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... me allowances regularly in foreign currency, which is duly accounted for in his tax return and tax paid at source. On 3-8-1998, he was scheduled to operate Air India flight Mumbai-Trivandrum-Doha-Bahrin and due to an enquiry he was left with no time to deposit the said currency into his bank locker and the same was brought to the Airport to deposit in his Airport Locker before leaving for the flight. The customs officials took his currency from his private car parked outside the Airport before he could shift it to the locker in the Airport premises. The customs officials cooked up a false case that he was smuggling it out of country. The husband of the petitioner was detained by the customs officials, taken into custody on 4-4-1998, beaten and some false statement was recorded implicating him in the smuggling of the alleged currency. The petitioner's husband was produced in the court of Chief Metropolitan Magistrate, Mumbai for remand, where he filed a complaint before the Chief Metropolitan Magistrate retracting from the alleged confessional statement. He was released on bail on 14-8-1998. After his release the Customs Authorities submitted an application before Additional Session ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough an Advocate and in the said reply it was categorically stated that the seized currency is the ownership of the husband of the petitioner. It is further stated that the adjudication proceedings are at an advanced stage and it is yet to be determined as to whether the husband of the petitioner was or was not in legal possession of the said currency. 4.With above background, the petitioner has sought the quashment of the detention order of her husband by stating that the said order is absurd. There is no rational connection between the occurrence stated by the Govt. for the detention and the objects sought to be achieved/prevented under the Statute; that the grounds of detention are absolutely vague and no detention order could be validly passed under the Cofeposa Act; that the adjudication proceedings are yet pending in which it is yet to be decided as to whether the currency is liable to confiscation or not. The husband of the petitioner is also at liberty to prove in the adjudication proceedings that the foreign currency totalling 66,217 US $ was legally acquired by him. According to the petitioner, the said currency was partly earned by him by way of flights with Air Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of mind. The Customs Authorities had no jurisdiction even to search and seize the car, which was lying parked outside the Airport. The impugned order has been passed with utmost haste because the learned Addl. Sessions Judge had rejected the application of the Customs Authorities for the cancellation of bail on 17-11-1998 and on the same very day, the detention order was passed. It has also been pleaded by the petitioner that the Panchnama on which reliance is being placed is only a document showing that the goods have been seized which cannot be used to prove the facts stated therein. Invoking the territorial jurisdiction, the case set up by the petitioner is that she and her husband are permanent residents of District Jalandhar where the detention order is likely to be executed, thus, giving a right to a specific part of cause of action. The searches have been conducted at the house of the petitioner as well as her husband, which is situated at Jalandhar. 5.With the above main allegations, the petitioner is seeking the quashment of the impugned order of detention F. No. 673/70/98-Cus. VIII, dated 17-11-1998, Annexure P-7. 6.Notice of the petition was given to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r me to make a brief mention of the nature of the documents produced by the petitioner. Annexure P-1 is the medical report of HPS Shergill. Annexure P-2 is the statement dated 4-8-1998 made by HPS Shergill in which he has denied the allegations of the Customs authorities and instead he has given a different version. Annexure P-3 is the copy of the order dated 14-8-1998 passed by the Addl. Chief Metropolitan Magistrate, 3rd Court, Mumbai, who had granted bail to Capt. HPS Shergill and Kamlesh Yashwantrai Vyas. Annexure P-4 is the order dated 17-11-1998 passed by the court of Addl. Sessions Judge, Greater Mumbai, who dismissed the application of the Govt. seeking the cancellation of the bail of HPS Shergill. Annexure P-5 is the representation, which was made by HPS Shergill in which he has justified the source of the currency by stating that he had legally acquired this currency. Annexure P-6 is another representation, which was made by the husband of the petitioner to the Commissioner of Customs in which he has given a different story. Annexure P-7 is the order of detention, which is also dated 17-11-1998, which coincides with the date on which the application of the Customs authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is first objection, the counsel for the respondents submitted that no cause of action or part of it has arisen in Punjab or Haryana and, therefore, this writ petition is not maintainable. According to Mr. Sharma, the writ is maintainable either at Mumbai or at Delhi where the currency was taken into possession or at a place where the order of detention was passed. In support of his contention, Mr. Sharma has relied upon several judgments reported as follows : Manjit Singh Dhingra v.1. Union of India and Ors. - I.L.R. 1987 (2) Punjab and Haryana, 61; Gurdeep Kaur v.2. The Union of India and Ors. - 1990 (2) RCR 20; Board of Trustees for the Port of Calcutta3. Anr. v. Bombay Flour Mills Pvt. Ltd. Anr. - J.T. 1995 (1) SC 30; Avinash Kumar Sharma v.4. Union of India - 1997 (4) RCR (Criminal) 359; and 5.Rajinder Nanda v. Union of India - 1998 (1) RCR (Criminal) 155. 13.On the contrary, the counsel for the petitioner while meeting the submissions of the counsel for the respondents has placed reliance upon D.N. Anand v. Union of India, Ministry of Finance and Ors. 1993 (2) All India Criminal L.R. 220, Trilok Nath Mittal v. Union of India and ors., 1994 (1) All India Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the husband of the petitioner at Jalandhar and Chandigarh. 16.In Gurdeep Kaur's case (supra), there was a recovery of gold biscuits near Ahmedabad. The detenu was residing at Mohali, Punjab and some inquiry was made at Mohali. With this background, it was held that the Punjab Court has no jurisdiction to entertain the petition. Here is a case where the U.O.I., was not holding a mere inquiry but was executing the detention order. 17.In Board of Trustees' case (supra), the Hon'ble Supreme Court was pleased to hold that no cause of action had arisen at Bharatpur when Port Trust Office is at Calcutta and goods were also imported in Calcutta. The facts of this case are totally distinguishable from the facts in hand. 18.The findings in Rajinder Nanda's case (supra) also cannot come to the rescue of U.O.I. The cited case was a one where there was seizure of goods at Delhi and Bombay, the detenu was resident of Haryana. This alone could not confer jurisdiction to Punjab and Haryana High Court. I have already stated the facts. It is the admitted case of U.O.I. itself that they wanted to arrest HPS Shergill in pursuance of the detention order and it conducted raids at Chandigarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties that the detention order has not been served upon HPS Shergill who has not surrendered. The counsel for the respondents relied upon a judgment of the Hon'ble Supreme Court in Union of India v. Parasmal Rampuria, 1998 (2) RCR (Cri.) 146, and submitted that if the detenu has not surrendered and if he had filed a writ before the High Court, the grant of interim stay is not valid. 26.Of course, when the writ was filed by the petitioner, the operation of detention order was stayed by the High Court, being satisfied, prima facie, that the detention order requires scrutiny. Now, I am disposing of the writ petition on merits. The judgment of the Hon'ble Supreme Court does not say that in no eventuality the writ cannot be entertained by the High Court on pre-detention stage. Rather, this court is of the opinion that the Hon'ble Supreme Court has laid down the guidelines under what circumstances a writ is maintainable at a pre-detention stage. The Hon'ble Supreme Court in Additional Secretary to Government of India and others v Smt. Alka Subhash Gadia and Another, 1991 (1) RCR (Cri.) 677 [equivalent to 1992 SCC (Cri.) 301], and the gist of the ratio is as follows:- that the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute to support it or it may be passed without complying with the provisions of the statute if any. The order may also come to be passed against a wrong person or for a wrong purpose. To insist in such cases that the person against whom the order is passed must first submit to the same and lose his valuable liberty, before approaching the Court, is to insist upon an unreasonable, unwarranted and illegal condition. We find no support for such proposition in our legal system. On the other hand, the fundamental rights guaranteed by the Constitution particularly by Articles 14, 19 and 21 confer on any person likely to be affected by such order an implicit right to approach the Court and knock at its door at any time, and the Court will not and cannot refuse relief to such person by insisting that he first surrender his liberty. We therefore find no substance in this submission. Although it is not strictly material, it will not be inappropriate in the present case to point out that though the detention order was not served upon the petitioner, proceedings under section 7(1) of the Act read with sections 82 and 83 of the Code were initiated against him and his properties were attached in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J K Ordnance, 1 of 1988). When any order of detention is made by a State Government or(2) by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. For the purposes of clause (5) of article 22 of the(3) Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding with the date of the order when the prayer for cancellation of bail was not granted by the court of Addl. Sessions fudge, Great Mumbai. It is not the case of U.O.I., that the husband of the petitioner earlier had been taking out the currency to the foreign lands. Whether for a solitary act, even if it is assumed for the sake of arguments as correct, would it be proper on the part of the U.O.I. to invoke the provisions of Section 3(1) of the Cofeposa Act. In this view of this court, it may not be worthwhile as it defeats the very object of the Act, which is preventive in nature. If the husband of the petitioner has committed a substantive offence, that offence should be tried by a competent court of jurisdiction but if in the adjudication proceedings, the husband of the petitioner is in position to explain the possession of the currency, it will have a direct bearing on the complaint which has been filed by the authorities before the Chief Metropolitan Magistrate, Mumbai. In the view of this court, the impugned order has been passed in haste without application of mind as to whether the impugned act attributed to the husband of the petitioner was, in fact, with the object of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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