G.S.CHAHAL,J - (1.) DARSHAN Lal Anand (hereinafter called the petitioner) has come to this Court through his brother Shri P.N. Anand in this petition under Article 226 of the Constitution of India for issuance of Writ of Habeas Corpus by quashing the detention order and grounds of detention Annexures P-1 and P-2 dated 17.9.1992 respectively.
(2.) THE grounds of detention as may be gathered from Annexure P-2 may be briefly summarised. On March 15, 1992, the Customs Officers Working on an information searched the godown located at the ground floor of building No. 12/21 Shakti Nagar, Delhi, and recovered 252 VCPs and ball bearings of foreign origin collectively valued at Rs. 51, 78, 250/-. They were seized, on a reasonable relief that the same had been smuggled into India and are liable to confiscation. One back seat of the Maruti Van and bill book of M/s Anand Industries lying in the said premises were also taken into possession as relevant to the inquiry. Sh. A. Sebastian @ A Sharma made a statement to the effect that about 3 years earlier, he had come into contact with one Sh. Tarlok Nath of Delhi in Burma Bazar, Madras. A. Sebastian had assisted Tarlok Nath very often in purchase of smuggled electronic items like VCPs and VCRs, but since his business was not profitable, he got lured by the offer of Tarlok Nath of 3% commission in the job of assisting him in the disposal of smuggled ball bearings in Delhi. After return to Delhi, he engaged himself in the disposal of smuggled ball bearings in the Kashmiri Gate Market. Subsequently, Tarlok Nath got A. Sebastian introduced to Roop Kumar and Darshan Lal Anand @Baby (the petitioner) as other partners in the smuggling activities. That the petitioner was aware of the utilisation of the godown for keeping smuggled items though it were only Tarlok Nath and Roop Kumar who used to store the articles and remove it from the godown. That A. Sebastian used to transport the goods to a pre-decided place in the market and to sell them out to the customers. The sale proceeds were being handed over, by him to Tarlok Nath or to Roop Kumar and at sometimes to the petitioner. That against five slips all dated December 22, 1991 of the Punjab National Bank drafts of Rs. 49,000/- each were purchased in the names of the alias of A. Sebastian, Roop Kumar, Tarlok Nath and the petitioner and the 5th slip in the name of Lakhpat Singh, an accountant of Tarlok Nath and Roop Kumar. A week prior to the seizure, A. Sebastian was asked by Tarlok Nath and Roop Kumar to find out the customers interested in bulk purchase in quick succession since they were in receipt of huge consignment of smuggled ball bearings, packed in 100 to 125 wooden cases. From a diary recovered from A. Sebastian, the names of persons who attended the marriage party and made gifts were described and on another page under the heading of Partners, he had, recorded the names of Tarlok Nath, Roop Kumar and the petitioner as partners. Sh. Bakul Vyas, a tenant on the first floor of building No. 12/21 Shakti Nagar, Delhi, made a statement that he had been paying the rent of that building at petitioner's office since 1982. The petitioner admitted that he had purchased the building 12/21, Shakti Nagar, Delhi from M/S Devraj and Company for Rs. 7.5 lacs. The petitioner had, however, been unable to produce any rent-note executed between himself and Tarlok Nath and between Tarlok Nath and A. Sebastian and from other circumstantial evidence gathered, it had been established that the petitioner was one of the beneficiaries of the sale proceeds of the smuggled ball bearings. Criminal proceedings against A. Sebastian had been launched. That although, proceedings under the Customs Act were likely to be initiated against the petitioner, the Detaining Authority was satisfied that unless prevented, the petitioner will continue indulging in prejudicial activities in future.
(3.) THE petitioner has pleaded inter-alia that he is a resident of H.No. 66, Mall Rood, Ambala Cantt and running his business of country liquor. He has purchased building 12/21, Shakti Nagar, Delhi, and rented out the same to A. Sebastian @ A. Sharma. That on the basis or a search and recovery from A. Sebastian, the house of the petitioner was also searched, but nothing incriminating was recovered. That A. Sebastian when produced before the Magistrate, had moved an application that his statement stated to have been recorded earlier was under duress and in fact he had signed blank paper due to mental and physical torture by the Customs Officers. That apprehending his arrest, he moved this Court from where direction for his anticipatory bail was given and under the direction of the Court, he appeared before the investigating authorities on April 22, 1992, 27 April, 1992 and May 18, 1992. This interim bail was confirmed vide order Annexure P-3 dated May 4, 1992. That apprehending his detention, he had filed Cr. W. 310/92 which was dismissed by this Court as premature on August 12, 1992. It was after the dismissal of this writ petition that show-cause notice was served on the petitioner and thereafter the impugned order of detention was passed. That the petitioner had no connection with the premises from where recovery was effected. The entire evidence collected relates to the activities of Tarlok Nath and Roop Kumar. That the alleged activity was of March 15, 1992 and the detention order was passed on July 17, 1992. There was no explanation for this delay and the order passed is punitive and not preventive in nature because of the filing of Cr. W. 310/92 filed by the petitioner. That though in the said petition, there was a direction staying his arrest, there was no order of staying the passing of the detention order. That the petitioner had moved the Detaining Authority to give clarification and details sought in Annexure P-4 as the same was required by him to make a proper and effective representation, but no reply had been received till date, and the same has deprived him of the right to make an effective representation against his detention. The Advisory Board was to hold its sitting on November 20, 1992 and in the absence of reply to Annexure P-4, the petitioner could not make any effective representation. That there is no allegation of any prejudicial activity indulged into by the petitioner from March 15, 1992 till the execution of the order of detention on October 13, 1992. There is also delay in the execution of the detention order. The documents supplied to the detenu were not legible and though the documents annexed with the grounds of detention were stated to be 123, a total of 425 pages were stated to have been placed before the Detaining Authority on September 17, 1992. The detention order was passed on the same day. It is humanly impossible that the Detaining Authorities could have gone through the entire record before passing the detention order. That no order of detention regarding Rupesh Kumar against whom similar allegations have been made, has been passed till date.;