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PETITIONER: BAL CHAND BANSAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT11/04/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J)

CITATION:  1988 AIR 1175            1988 SCR  (3) 494  1988 SCC  (2) 527        JT 1988 (2)    65  1988 SCALE  (1)688  CITATOR INFO :  RF         1988 SC1256  (13)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974: s.3(1)-Preventive detention- Compelling necessity for-Detenu already in judicial custody- Likely to be released on bail-order whether punitive.

HEADNOTE: %      The petitioner  was apprehended  on April  2,  1987  on information provided  by his  associate that he was the main person directing  illegal remittances  of money  to  foreign countries. He  was formally  arrested on  April 3,  1987 and remanded  to   judicial  custody  till  April  13,1987.  His associate was  in the  meantime enlarged  on bail  and being apprehensive that  the petitioner  too may  be  released  on April 13, 1987 when his application was to come up, an order of detention made under Section 3(1) of the COFEPOSA Act was served on him on that day. The application for bail filed by him was actually allowed the same day i.e. April 13,1987.      Petitioner’s representation  against the  detention was rejected and  a Writ  of Habeas  Corpus under Article 226 of the Constitution  was dismissed  by the  High Court.  In the Special Leave Petition arising out of the High Court’s Order and the  Writ Petition under Article 32 of the Constitution, it was  contended that  the impugned order amounts to double detention as  the petitioner  was already  in jail  when the detention order  was made, and that it was essential for the detaining authority  to have been aware of the fact that the petitioner was already in jail and was likely to be released on bail  and further  he had to be satisfied that compelling necessity  existed   for  the   detention,  none   of  which conditions were satisfied.      Dismissing the petitions, ^      HELD: 1.  A perusal of the grounds of detention clearly indicates that  the detaining authority was conscious of the fact that  the petitioner  was in  judicial custody  and was apprehensive that  he would  be released  on  bail  when  an application for  bail moved  on his  bahalf was  going to be

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heard on  April 13,  1987. The  order  passed  on  the  bail application of the 495 petitioner’s  associate   was  also   referred  to  therein. Thereafter,  the   detaining  authority  had  mentioned  his satisfaction about the necessity of the detention. [497F-H]      2. The  object of  detention has  to be prevention of a detenu from  indulging  in  activities  prejudicial  to  the conservation of  foreign  exchange  resources,  and  not  to frustrate his  trial in  a criminal  case nor  as a punitive measure. [498B]      In the instant case the role of the petitioner has been detailed  in  the  grounds  showing  how  he  got  illegally siphoned the  foreign exchange to the tune of about 2 crores of rupees  out of the country. The grounds also refer to the statements  made  by  his  associates  which  indicate  that offences in  respect of which the detenu was accused of were so interlinked  and continuous in character and were of such nature that they fully justified the detention order. In the circumstances, the  satisfaction of  the detaining authority specifically recorded cannot be doubted. [498C,D,G]      Suraj Pal  Sahu v.  State of  Maharashtra, [1986] 4 SCC 378, referred to.      3. Merely because the prayer for bail made on behalf of the petitioner  was not opposed on behalf of the respondents before the  Magistrate, it cannot be said that his detention was not  called for.  Having  regard  to  the  circumstances arising in  the case, no such inference is permissible to be drawn in favour of the petitioner. [498H; 499B]      Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232, distinguished.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 3115 of 1987.      From the  Judgment and  Order dated  29.10.1987 of  the Delhi High Court in Criminal Writ Petition No. 219 of 1987.      Kapil Sibal,  Pinaki Mishra,  Ms. Bina  Gupta and  Atul Tewari for the Petitioner.      Kuldip  Singh,   Additional  Solicitor   General,  V.C. Mahajan, C.V.  Subba Rao,  Ms. A.  Subhashini, Hemant Sharma and Arun Madan for the Respondents. 496      The Judgment of the Court was delivered by      SHARMA, J.  The petitioner  has challenged his order of detention made  under Section  3(1) of  the Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter  referred to as the COFEPOSA). He filed an application under Article 226 of the Constitution before the Delhi High Court, being Writ Petition No. 219 of 1987, which was dismissed  by the  judgment dated 29-10-1987 impugned in the S.L.P.  (Crl.) 3115  of  1987.  He  has  also  filed  an application directly  before this  Court under Article 32 of the Constitution  which has been registered as Criminal Writ Petition No. 830 of 1987.      2. In  January  1987,  on  receipt  of  a  confidential information by  the Directorate  of Enforcement, Delhi Zone, New Delhi,  that a  group of persons were engaged in illegal activities causing  remittances of large amounts of money to foreign countries,  an inquiry  was instituted.  It appeared that the  remittances were  ostensibly made  for  import  of certain goods  on the basis of forged documents and actually goods were  not received from outside. Information collected

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in the  course of inquiry disclosed that a number of persons were engaged  in the  criminal activities and were operating through five  Indian firms  and a number of foreign firms in Hong  Kong   and  Singapore.  On  20-2-1987,  one  Sita  Ram Aggarwal, associate  of the petitioner, disclosed during his interrogation, facts which indicated that the petitioner was the  main  person  directing  the  illegal  activities.  The petitioner  was  apprehended  in  a  hotel  in  Calcutta  on 2-4-1987 and  on being  questioned, made certain statements. He was  formally arrested  the next  day  and  was  produced before the  Additional Chief  Metropolitan  Magistrate,  New Delhi, who  remanded him to judicial custody till 13-4-1987. Sita Ram Aggarwal, the aforesaid associate of the petitioner was  in   the  meantime   enlarged  on  interim  bail  which wasextended  after   expiry  of  the  initial  period,  and, according to  the case  of the  respondents,  the  detaining authority apprehended that the petitioner also was likely to be released  on bail  on 13-4-1987.  In this  background the impugned order  of detention  was passed  and served on him. The application for bail by the petitioner which had already been filed  was actually  allowed  the  same  day,  i.e.  on 13-4-1987. After  his representation  against the  detention order was  rejected, the  petitioner moved  the  Delhi  High Court for a writ of habeas corpus which was dismissed by the order dated  29-10-1987  challenged  in  the  special  leave petition. The Writ Petition No. 830 of 1987 was filed before this Court  on 9-11-1987.  Both the cases are being disposed of by this judgment. 497      3. When  the cases  were placed for preliminary hearing before us,  we directed  notice to  be issued only on two of the grounds  taken by  the petitioner, namely, whether there was compelling  necessity  for  passing  the  order  as  the petitioner was  already in judicial custody, and whether the order was passed for the collateral purpose to frustrate the grant of bail and was punitive in nature.      4. The learned counsel for the petitioner has contended that the  impugned order  amounts to double detention of the petitioner as  he was  already in  jail when  the  detention order was made. Relying upon several decisions of this Court it was  argued that  it  was  essential  for  the  detaining authority to have been aware of the fact that the petitioner was already  in jail  and was  likely to be released on bail and further he had to be satisfied that compelling necessity existed for  the detention.  It is  said that  none of these conditions is satisfied.      5. Mr.  Kuldip Singh,  the learned Additional Solicitor General appearing  on behalf  of the  respondents said  that there cannot  be any  manner of  doubt  that  the  detaining authority was  fully aware  of the  fact that the petitioner was already in custody and that he was likely to be released on bail  on  13-4-1987.  Besides,  relying  on  the  counter affidavit, the learned counsel placed before us the original records of  the case for our perusal. It appears that a note specifically mentioning  these facts  was on  the  file  and immediately there-after the detaining authority recorded his order. It  was urged  on behalf  of the  petitioner that the respondents were  not entitled  to rely on the original file for this  purpose and  that the  awareness of  the detaining authority ought to have appeared from the grounds themselves and unless  that is  shown, the  detention order  cannot  be defended. Even  assuming that  the stand  taken on behalf of the petitioner  is correct, he cannot succeed in the present case. A  perusal of  the grounds  which runs into many pages clearly indicates that the detaining authority was conscious

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of the  fact that the petitioner was in judicial custody and was apprehensive  that he  would be  released  on  bail.  In paragraph  24   of  the  grounds  it  was  stated  that  the petitioner had been arrested on 3-4-1987 and was in judicial custody till  13-4-1987 and  in paragraph  26, the detaining authority reminded  the petitioner  that an  application for bail moved  on his  behalf was  going to  be  heard  by  the Additional Chief  Metropolitan Magistrate  on 13-4-1987.  In paragraph 38,  the order  passed on  the bail application of the petitioner’s  associate Sita  Ram Aggarwal  was referred to. Thereafter,  the detaining  authority had  mentioned his satisfaction about the necessity of the detention. 498      6.  On   the  question  as  to  whether  the  detaining authority was  satisfied about  the compelling necessity for the  detention   order  also,  there  is  no  merit  in  the petitioner’s case.  It is true that the order could not have been passed  for the  purpose of  circumventing the expected bail order.  The object of detention has to be prevention of a detenu  from indulging  in activities  prejudicial to  the conservation of  foreign  exchange  resources,  and  not  to facilitate his  trial in  a criminal  case nor as a punitive measure. The  learned Additional  Solicitor  General  placed before us  the grounds  served on  the petitioner,  at  some length, wherein  it is inter alia stated that the petitioner was running  a business  firm under  the name  and style  of "M/s. B.N.  Corporation" in  Hong Kong  as also  offices  in other places  including Singapore  and got  certain business firms in India detailed therein registered in Nagaland under ’farzi’ names  and employed  a number  of persons  who  were acting at  his behest.  The role  of the petitioner has been detailed  in  the  grounds  showing  how  he  got  illegally siphoned the  foreign exchange to the tune of about 2 crores of rupees  out of  the country.  Besides the  aforementioned Sita  Ram  Aggarwal  and  the  petitioner’s  nephew  Subhash Aggarwal, the  other associates  working in  accordance with the direction  of the  petitioner are  mentioned along  with their  activities.   The  grounds   also  referred   to  the statements made  by Sita  Ram Aggarwal  which indicated that the petitioner was travelling by air under assumed names and has been  dodging the  authorities when  they  attempted  to contact him,  before he was apprehended in a Calcutta hotel. It is  further said  that the  petitioner’s firm  M/s.  B.N. Corporation of  Hong Kong  received remittances through bank worth Rs.85-90  lacs during the year 1986 but did not supply or ship  any goods  for which  the invoices were supposed to have been  issued. Some of the documents are alleged to bear his signatures.  We do  not think  it necessary to deal with the grounds  in greater detail. The statements indicate that the offences  in respect  of which  the detenu is accused of are, in language of Mukharji, J., in Suraj Pal Sahu v. State of Maharashtra,  [1986]  4  SCC  378,  "so  interlinked  and continuous in  character and  are of  such nature" that they fully justify  the detention order. In the circumstances, we do not  doubt the  satisfaction of  the detaining  authority specifically recorded in paragraph 41 of the grounds.      7. It  was also  urged on behalf of the petitioner that since the  prayer for  bail made on behalf of the petitioner was not  opposed on  behalf of  the respondents  before  the Additional Chief  Metropolitan Magistrate,  it must  be held that this  detention was not called for. Reliance was placed on paragraph  6 of  the judgment in Ramesh Yadav v. District Magistrate, Etah,  [1985] 4  SCC 232. The learned counsel is not 499

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correct in interpreting the observation of this Court relied upon  by   him  as  laying  down  a  principle  for  general application. The  Bench while  considering the merits of the case before  it, made  the remark  in the  background of the facts and  circumstances of  the case.  Having regard to the circumstances  arising  in  the  case  before  us,  no  such inference is  permissible to  be  drawn  in  favour  of  the petitioner. Besides,  according to the respondents, the bail application was  as a matter of fact opposed. In any view of the matter,  this factor  is not  of much consequence in the facts of  the present  case. In  the result,  both the  writ application and the Special Leave Petition are dismissed. P.S.S.                             Petitions dismissed. 500