V.P.TIPNIS, J. - (1.) AS the detenus in all these four criminal writ petitions are co-detenus and the orders of detention arise out of the same set of facts, at the request of the learned counsel for both sides, these writ petitions are heard together and are being disposed of by this common judgment.
(2.) SO far as Criminal Writ Petition No.87 of 1995 is concerned, the order of detention was passed on 20.12.1994 in respect of the detenu by name Pranlal Bhaichand Timbadia under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "COFEPOSA Act) by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. The said order was served on the detenu on 21.12.1994. The grounds of detention accompanying the order of detention show the involvement of the detenu on a very large scale in unauthorised purchase of foreign exchange in all aggregating to US Dollars 9,73,500 with a view to transferring the same to a person in Dubai. In view of the challenges raised before us, we find it unnecessary to make any further detailed reference to the grounds of detention. Shri M.G.Karmali, learned counsel appearing for all the petitioners in these petitions, submitted that so far as the grounds of detention in respect of the detenu concerned in Criminal Writ Petition No.87 of 1995 is concerned, in paragraph 20 of the grounds of detention, the detaining authority has, inter alia, drawn the following conclusion : "The Honourable Chief Metropolitan Magistrate, Bombay, in his order dated 12.12.1994, while enlarging all of you on bail with certain conditions stayed operation of the said order in respect of you till 5 p.m. on 13.12.1994". The learned counsel submitted that as a matter of fact, the learned Metropolitan Magistrate, while granting bail had, inter alia, passed the following order: "At this stage, the learned Prosecutor Miss Punde requests for stay of this order. Stay granted to the execution of order against the accused No.1. Request for stay is refused as far as accused Nos.2,3 and 4 are concerned". It was submitted on behalf of the detenu that the conclusion drawn by the detaining authority that the learned Metropolitan Magistrate, while granting bail to the detenu, had stayed the operation of the said order, is totally based on non-existent and illusory facts. It exhibits non-application of mind, casual and cavalier exercise of the powers by the detaining authority. It is contended that it shows that the detaining authority had not at all read the crucial and vital order passed by the Chief Metropolitan Magistrate, or, if read, it was totally misread by the detaining authority. It is further contended that in the Criminal Application filed by the Enforcement Authorities in the High Court it was clearly stated that the prayer for bail of accused Nos. 2, 3 and 4 was rejected by the lower Court and the bail order in respect of only Kawade was stayed. It was, therefore, contended that it shows that the detaining authority had adopted the said conclusion on the basis of the grounds contained in the proposals submitted by the sponsoring authority and had arrived at the conclusion mechanically, the order of detention is thus malafide, null and void. These contentions are specifically raised in paragraph 4(iv) of the petition. The affidavit-in-reply filed by the detaining authority states that the word "you" mentioned in the grounds is a mere typographical error. It is asserted that a reading of the ground of detention would show that the detaining authority was very well aware that all the persons arrested by the Enforcement Directorate, Bombay, viz. Vasant Sonu Kawade, Pranlal Timbadia, Popatlal Kasturchand Jain and Dinesh Shakalchand Kataria were released on bail by an order dated 12.12.1994 by the Chief Metropolitan Magistrate, Bombay. However, the Chief Metropolitan Magistrate, Bombay, stayed the operation of the bail order in respect of only Vasant Sonu Kawade only till 5.00 p.m. on 13.12.1994, against which order a criminal application dated 13.12.1994 was filed by the Enforcement Directorate in the High Court of Bombay and the High Court stayed the operation of the bail order in respect of Vasant Sonu Kawade till 20.12.1994 and further ordered service of notices on others by the Enforcement Directorate and made returnable on 20.12.1994. It is asserted that the very document shows that the detaining authority was well aware that the Chief metropolitan Magistrate had stayed the operation of the bail order in respect of Vasant Sonu Kawade only and not in respect of the detenu.
(3.) IN support of this ground, Shri Karmali, learned counsel appearing on behalf of the detenu, relied upon the judgment of the Apex Court in the case of Dwarika Prasad v. State of Bihar, reported in AIR 1975 Supreme Court, Page 134 and especially upon paragraph 7 thereof. Shri Karmali also relied upon a decision of the Bombay High Court in the case of Shoilen Dey, reported in A.I.R. (36) 1949 Bombay 75 (C.N. 21) and the decision of the Division Bench of this Court in Mackie Francis Pereira v. State of Maharashtra, Criminal Writ Petition No.246 of 1988, delivered on 6.6.1988 and especially upon paragraph 5 thereof. Undoubtedly, the decisions on the basis of facts and circumstances available before the Courts therein have held that some factual errors in the grounds of detention would vitiate the orders of detention in those particular cases. However we are of the clear opinion that whether a particular error would vitiate the order of detention or not will always depend on the facts and circumstances and the material on the record of a particular case. In that behalf, Shri Agrawal, learned counsel appearing for the respondents, very rightly relied upon the fact that while passing the order of detention, the bail order dated 12.12.1994 passed by the Chief Metropolitan Magistrate, Bombay, the Criminal Application filed by the Enforcement Directorate in the High Court, the order dated 13.12.1994 passed by the High Court thereon, the letter dated 13.12.1994 addressed by the Advocate for the Enforcement Directorate in the High Court and the extracts of the Daily Attendance Register of the accused in the Office of the Enforcement Directorate, Bombay in respect of Popatlal Kasturchand Jain and Pranlal Timbadia were before the detaining authority. As such, it is crystal clear that the detaining authority was aware of the fact that there was no order of stay in respect of the present detenu. Secondly and more importantly, paragraph 20 of the grounds of detention, wherein this mistake has occurred, itself clearly shows that there is a reference to the fact that an application was filed in the High Court and the Hon'ble High Court by order dated 13.12.1994 stayed operation of the said order till 20.12.1994 in respect of Vasant Sonu Kawade and also ordered service of notices on others by Enforcement Directorate, returnable on 20.12.1994. On the basis of this material, we are of the clear opinion that the mention in the grounds of detention that the bail order in respect of the detenu was stayed is an obvious mistake, which must have crept in inadvertently. On the basis of this material, we are not at all impressed by the submission that this shows either total non-application of mind or misreading of the material, as contended. This ground, therefore, fails and stands rejected. Monday, 28th August, 1995;