- (1.) Petitioner's husband, Shital Kumar, was detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, dated February 28, 1986, made in exercise of powers vested under S. 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA'). The petitioner made an application to this Court under Art. 32 in Writ Petn. (Cri.) No. 292 of 1986 challenging that order of detention. In the earlier writ application, on 15th of May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the following terms (at p. 1385) :- "The detenu is released on parole until further orders on the condition that he will report to the Directorate of Revenue, New Delhi, every day and the Directorate will be at liberty to direct him to explain his conduct during this time........... In the meantime the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole." On 3rd March, 1987, the writ petition was listed for hearing before the Bench consisting of both of us. In the writ petition, several contentions had been raised but Mr. Jethmalani, learned counsel for the petitioner confined his submission to only one aspect, namely, that the period of parole, that is, from 15th May, 1986, till February 22, 1987, should not be added to the period of detention specified in the impugned order under Section 3 (1) of the COFEPOSA and the period of one year from the date of detention having expired on February 20, 1987, the impugned order has lapsed and the detenu became entitled to be freed from the impugned order of detention. That point was examined at length and by the judgment of. this court delivered on 22nd. April, 1987 in Poonam Lata v. M. L. Wadhawan, AIR 1987 SC 1383 the writ petition was dismissed by saying (Para 13) :- "In the premises, it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention under sub-section ( 1) of Sect ion 3 of the Act." In paragraph 14 of the judgment, it was further observed : - "For these reasons, the only contention advanced by Shri Jethmalani in course of the hearing, namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub-section (1 ) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must fail. The writ petition is accordingly dismissed. There shall be no order as to costs. We direct that the petitioner shall surrender to custody to undergo remaining period of detention. We give the detenu 10 days' time to comply with this direction failing which a non-bailable warrant for his arrest shall issue."
(2.) This writ petition was thereafter filed on 27th of April, 1987. In paragraph 2 of the petition, with reference to the earlier writ petition, it was averred :- "Arguments were advanced by the counsel for the petitioner only to the one point and it was clearly stated by the senior counsel, Shri Ram Jethmalani, who appeared in the hearing that he had a strong, almost unanswerable case on merits but he was very keen to have the question of exclusion of the parole period decided since it arises squarely in this case. It would have been a breach of professional duty on the part of the counsel not to raise those points against the validity of the detention order on which the court had prima facie issued notice. Shri Ram Jethmalani, senior counsel, did not give up the other points in the said writ petition. However, the Hon'ble Court has dismissed the said writ petition on 22-4-1987. Though the Hon'ble Court has rightly observed that the only point which was argued was on the question of the period of parole it was submitted that had the Hon'ble Court indicated that the petitioner's submission on this score did not find favour of the Hon'ble Court, counsel would have proceeded to argue the case." We are surprised that in the writ petition which has been settled by Mr. Jethmalani. such allegations have been made. It is common experience that when those several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the hearing. The judgment indicated that only one point was argued. The averments in paragraph 2 of the present writ petition accepts that position. It, therefore, follows that Mr. Jethmalani made submissions confined to one contention - a contention which had not been raised in the earlier writ petition but arose out of the proceedings in court therein - relating to the effect of release on parole. The fact that Mr. Jethmalani raised only one submission having been accepted, it is a matter of no consequence as to whether giving up the other pleas raised in the writ petition amounted to breach of professional duty on the part of Mr. Jethmalani. The fact remains that only one contention had been raised. There is absolutely no basis for the allegation in paragraph 2 of the writ petition that if the Court had indicated to Mr. Jethmalani in course of arguments that the submission on this limited point did not find favour with the Court he would have proceeded to argue the other points. That certainly was an unusual expectation. It was open to Mr. Jethmalani to make full submission on all aspects arising the Writ petition. that having not be done, it was improper on the part of Mr. Jethmalani to raise such allegations in paragraph 2, as have been, extracted above. We are surprised that Mr. Jethmalani who was aware of the proceedings in the Court and did not dispute the fact that he had confined his arguments to one point settled the writ petition as senior counsel with the allegations quoted above in paragraph 2 of the writ petition. This writ petition was fixed for final hearing on 31st of July, 1987, as suggested by Mr. Jethmalani, but at the hearing he did not appear and Mr. Garg, senior counsel, appeared for the petitioner. When we pointed out to Mr. Garg about the incorrectness of the averments and that the allegations contained in paragraph 2 are without foundation against the Bench hearing the matter, he pleaded ignorance and stated that it was for Mr. Jethmalani to answer. We do not want to say anything more but we think it appropriate to point out that Mr. Jethmalani on the earlier occasion had argued the writ petition in his own way and had raised only one contention which was dealt with by the judgment in the writ petition.
(3.) Mr. Garg, learned counsel for the petitioner has raised two points before us for consideration. (1) the detenu had been prejudiced in making an effective representation to the Board against his detention in the absence of the summons issued under Section 108 of the Customs Act to him. In spite of demand, that document had not been supplied and (2) the petitioner was already in custody at the time the order of detention wag served and since the detenu was already in custody, the order of detention is liable to be quashed. In Ground No. 4 of the writ petition, it has been alleged :- "that the most material document under the circumstances turns out to be the summons which was served on the detenu being the summons referred to in the letter dated 21-3-1986 Annexure E above mentioned. The detenu by his advocate's letter of 12th April, 1986, has called upon the respondent No. 1 to supply him with a copy of the summons because he intends to use the said summons while presenting his case to the advisory board. True copy is annexed hereto and marked as Annexure F. The reguest contained in the said letter has not been complied with." In paragraph 4 (iv) of the counter affidavit, it has been stated :- "In reply to para 4, it is submitted that the summons as required by the detenu's advocate in the letter dated 12-4-1986 were not supplied as there were no written summons served on the petitioner. I say that after the completion of the search of the residential premises of the petitioner on 27-2 1986 the petitioner was taken by DRI officers. As the petitioner happens to be in the presence of the empowered officers of DRI, he was accordingly told that his presence was required for giving evidence and the petitioner accompanied the DRI officers on his free will. No written summons were, therefore, served on the petitioner ..............." Section 108 (1) of the Customs Act provides :- "Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods." No specific provision has been made for summons in the Customs Act and, therefore, the provisions of Section 61 of the Code of Criminal Procedure will be applicable. That section provides :- "Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court.";