17 September 2004
Supreme Court
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KIRTI KUMAR NIRULA Vs STATE OF MAHARASHTRA .

Case number: Crl.A. No.-001033-001033 / 2004
Diary number: 11783 / 2004
Advocates: Vs RAVINDRA KESHAVRAO ADSURE


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CASE NO.: Appeal (crl.)  1033 of 2004

PETITIONER: Kirti Kumar Nirula

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 17/09/2004

BENCH: N.Santosh Hegde & S.B.Sinha

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.)No.3387 of 2004)                  SANTOSH HEGDE,J.

               Heard learned counsel for the parties.

               Leave granted.

       This is an appeal filed against the judgment and order of the  High Court of Judicature at Bombay dated 24th of March, 2004  whereby the said High Court dismissed the criminal writ petition  filed by the appellant herein challenging the detention of his  brother Rajinder Nirula made under Section 3(1) of the  Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, 1974.           Brief facts necessary for the disposal of this appeal are as  follows:         On an information received by the Directorate of Revenue  Intelligence, Mumbai, the Officers kept watch over the activities of  the appellant in transit lounge of CST Airport, Mumbai on the  night of 31st of July, 2002. The detenu who was to go to  Ahmedabad in an international flight had come from Delhi to  Bombay by Indian Airlines flight. He was apprehended when he  handed over foreign currency of 700 notes  of US $ in  denomination of 100 totalling of US $ 70,000 equivalent to Indian  Rs.35 lacs along with four mobile phones to one Tilak Raj Sharma  in the transit lounge at Sahara Airport. Both the detenu and the said  Tilak Raj Sharma were arrested and the statements under Section  108 of the Customs Act were recorded. It is pursuant to this  incident after investigation an order of detention under Section 3 of  the said Act was issued against the detenu on 18.1.2003,  consequently, he has been in detention since 30th September, 2003.  The period of detention being one year. Tilak Raj Sharma the  person who received the above currency and the cell phones was  also similarly detained. The detention of these persons came to be  challenged by way of writ petitions before the High Court.   Criminal Writ Petition filed challenging the detention of Tilak Raj  Sharma came to be allowed by the High Court as per its order  dated 19th September, 2003 wherein among other things the High  Court came to the conclusion that there was no application of mind  by the detaining authority to certain material facts as also on the  ground that the detention being based on a single incident was  liable to be quashed.  The appellant in his writ petition before the High Court has  raised various grounds including the ground of single incident  based on which the detention order of co-detenu of Tilak Raj  Sharma was quashed. It was also urged that the benefit given to the

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co-detenu should also be made available to the detenu in his case. The High Court by a detailed order after considering all the  facts and law placed before it came to the conclusion that the  detention order in regard to the present detenu, namely, Rajinder  Nirula did not suffer from any such infirmity as was noticed by the  court in the case of Tilak Raj Sharma and came to the conclusion  that a valid detention order could also be based on single incident,  hence, dismissed the writ petition.         In this appeal, Ms.Sangeeta Bhyana, learned counsel  appearing for the appellant urged three points for our  consideration. They are : -  (i) The order of detention being based on a single incident, the  same was liable to be quashed as the said incident alone could not  have been the basis for an opinion being formed by the detaining  authority that the detenu would indulge in such activities in future  also.     (ii) The detention order of the co-detenu of Tilak Raj Sharma being  quashed by the High Court which was based on the very same  grounds on which present detenu’s detention order is based, he is  also entitled to the same benefit. (iii) There was inordinate and unexplained delay in considering the  representation submitted by the detenu to the detaining authority  and the State Government.          Learned counsel has cited various decisions of this Court in  support of her contention.         While considering the first argument of the learned counsel,  we must notice at the outset that there is no statutory provision  against detaining a person based on a single incident provided the  detaining authority had material before it to come to a reasonable  opinion that from the surrounding circumstances coupled with the  incident in question a satisfaction as to the future illegal activities  of the detenu could be inferred. This is clear from the very  judgment sought to be relied upon by the learned counsel in the  case of Chowdarapu Raghunandan vs. State of Tamil Nadu & Ors.  (JT 2002 (3) SC 110) wherein at para 13 of the said judgment this  Court held that in an appropriate case, an inference could  legitimately be drawn even from a single incident of smuggling  that the person may indulge in smuggling activity but for that  purpose antecedents and nature of the activities carried out by a  person are required to be taken into consideration for reaching  justifiable satisfaction that the person was engaged in smuggling  and that with a view to prevent further smuggling, it was necessary  to detain him.  We will now consider the facts of this case to find out  whether a single incident in this case would be sufficient to detain  the appellant, keeping in mind the principle of law enunciated by  this Court in the above referred case. The fact that the detenu was arrested at the Airport while he  was handing over foreign currency totalling of US $ 70,000 with  four mobile phones to the co-detenu Tilak Raj Sharma is not  denied. The explanation of the detenu is that he had brought the  same when he came into India from abroad and had declared the  same to the Custom Authorities as required in law, hence, there is  no illegality in his taking back this money with him when he is  going out of India. This explanation cannot be accepted because of  the fact that if he had brought the money and he wanted to take the  money out of India then there was no need for him to hand over  this money to Tilak Raj Sharma at the Airport lounge. Therefore,  we will have to proceed on the basis that the detenu was arrested  when he handed over the foreign currency to Tilak Raj Sharma at  the Airport. Now this incident being a single incident, we will have  to see whether there was any other material before the detaining  authority to come to a legitimate satisfaction that the detanu in this  case would indulge in similar activities of smuggling currency in  future also. In this regard, it is seen from the material placed on

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record that the detenue had a work permit to work in UAE but on  enquiry it was found that he was neither working in UAE nor was  a regular resident of UAE. From the material placed before the  detaining authority, it is noticed that these detenue had travelled  abroad number of times and also he had made it a practice to travel  between Delhi \026 Bombay \026 Ahmedabad in a particular manner,  that is, he would take a domestic flight of Indian Airlines from  Delhi to Bombay and in Bombay he will change over an  international flight which touches Ahmedabad on the way. It is  also seen from the records in almost all these flights the co-detenu  Tilak Raj Sharma used to be a co-passenger. This detenu had taken  16 such flights during a short period of time and it is during one or  such flights he was arrested, as stated above. Thus on the facts and  circumstances of this case, we are in agreement with the finding of  the High Court that the material placed before the detaining  authority coupled with the fact of arrest and seizure of the foreign  currency which is handed over by the detenu to Tilak Raj Sharma  are sufficient to form a reasonable conclusion that the detenu is  likely to indulge in similar activities in future also. Therefore, we  find no merit in this argument.         Coming to the second contention of the learned counsel for  the appellant that the co-detenu having been released, benefit of  the said order should also be extended to the detenu in this case.  We notice that the High Court while considering this argument  came to the conclusion that the detention order of the co-detenu  Tilak  Raj  Sharma  was set aside by the High Court on two  grounds : one of the grounds being non application of mind  because in the grounds of detention it was mentioned that the  detenu in the present case had handed over the money in assorted  currency and not only in American Dollars. This erroneous  statement noticed by the detaining authority was not explained by  the respondents in that case in the counter affidavit. Therefore, to  that extent the High Court came to the conclusion that there was a  non application of mind. While in the present case in the counter  filed before this Court the department specifically adverted to the  said error and stated that that was a typographical error which  should be ignored and it was also contended that by such error the  opinion formed by the detaining authority did not, in any manner,  get vitiated.  The High Court accepted this argument and we find  no reason to differ from the same. We are also of the  opinion that  this argument pointed out in the grounds of  detention  has not, in  any manner, prejudiced the detenu in making his representation.  We do not think that the judgments relied upon by the learned  counsel in support of her contention could really help the detenu  on the facts of this case. As a matter of fact, the High Court in this  regard rightly relied on a judgment of this Court in the case of  Pushpa Devi M.Jatia vs. M.L.Wadhawan, Additional Secretary,  Government of India & Ors. (1987 (3) SCC 367) wherein this  Court ignored similar minor error found in the detention order.          Coming to the last contention of the learned counsel for the  appellant pertaining to the delay in consideration of his  representation, we notice that this is not a ground which was taken  before the High Court. Be that as it may, the same is raised in this  appeal in the following manner :         "Because the High Court has erred in having  failed to appreciate that it was incumbent  upon the detaining authority and the State  Government to satisfy the Hon’ble Court as to  whether the representation submitted by the  detenu to the Advisory Board at the time of its  meeting on 6.11.2003 was considered by the  detaining authority and the State Government  independently of each other and uninfluenced  by the opinion of the Advisory Board and as  to whether the same was so considered

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expeditiously and without any avoidable delay  and as to whether the replies by the detaining  authority and the State Government were  forwarded and served on the detenu without  any loss of time. The Hon’ble High Court  failed to appreciate that the detention of the  detenu was liable to be held as violative of  Article 22(5) of the Constitution inasmuch as  the detaining authority and the State  Government had failed to satisfy the Hon’ble  Court on the aforesaid issues."     

       In the counter affidavit filed in this regard on behalf of the  detaining authority, it is stated that the appellant had submitted an  unsigned and undated representation jointly addressed to the  Advisory Board, detaining authority, the State Government and the  Central Government and the same was received by the  Government along with a copy of the report of the Advisory Board  on 11.12.2003. After explaining the time taken for considering the  said representation in the said counter affidavit, it is stated that it  was rejected on 17.12.2003 and the order of detention was  confirmed on 20.12.2003. The affidavit further states that the  representation which was forwarded along with the report of the  Advisory Board was considered and rejected since there was no  signature of the detenu on the said representation as such it was not  a representation within the meaning of Article 22(5) of the  Constitution. This information of rejection was conveyed to the  detenu on 16.1.2004. From the above pleadings, it is clear that the  detenu who did not send any representation immediately on receipt  of the detention order and the material accompanying therein  deliberately tried to mislead the authorities by filing an undated  and unsigned representation simultaneously to the State  Government, the Union Government and the detaining authority  which was sent to the Advisory Board knowing very well that this  was likely to cause some delay, thus he has tried to mislead the  authorities by the above act of his. We are in agreement with the  stand taken by the respondent-State that undated and unsigned  representation cannot be treated as a representation within the  meaning of Article 22(5) of the Constitution requiring immediate  attention of the authorities concerned.  In the said view of the matter, we are satisfied that there was  no delay in considering the representation of the appellant. Hence,  we find no merit in this appeal and the same is dismissed.