V.K.JHANJI,J - (1.) THIS is a petition under Article 226 of the Constitution of India. Petitioner, Om Parkash Kashmiri Lal Panjabi is seeking a writ, order or direction, quashing the order of detention dated 29.12 1993 passed by respondent No. 2 being illegal, without jurisdiction and having been made for wrongful purposes, and not as a preventive, but as a punitive measure, and having been passed on vague, extraneous and irrelevant grounds, thus, rendering the same lacking in bonafide.
(2.) THE petition has been filed at the pre-detention stage. In brief, the facts are that the officers of the Directorate of Revenue Intelligence, on or about 3.8.1993, carried out a surprise check at Kandla Port and seized certain sealed containers purported to have been imported and containing lead scrap, but on opening of the containers, it was found to contain ball-bearings instead of lead scrap as declared. On enquiry from the Custom Clearing Agents who had filled in the necessary forms, declaring therein that the import was made in regard to lead scrap, it was disclosed in a statement made before the custom authorities that they had received instructions from one Om Parkash Kashmiri Lal Panjabi, i.e petitioner, for clearance of the aforesaid goods, who had allegedly told the said Agents for declaration to the above effect that the consignment in question was in regard to the import of lead scrap and, therefore, the Customs Clearing Agents had filled in the necessary forms and cleared the goods, which was the subject- matter of seizure aforesaid. Petitioner apprehending his arrest, filed a petition under Section 438 Cr.P.C. seeking concession of anticipatory bail. The said petition was filed on 27.8.1993. Vide Order dated 27.8.1993, the Gujarat High Court directed the petitioner to be present before the Director, Intelligence on 1.9.1993 and before the Court on 2.9.1993. On 7.9.1993, order giving concession of anticipatory bail was made absolute. The Directorate of Revenue Intelligence filed an application for cancellation of bail before the Gujarat High Court on 7.9.1993. On which, notice was issued for 30.12.1993. On 30.12.1993, the application was disposed of as the counsel appearing for the Department stated that the petitioner is not going to be arrested. It is worth while to mention at this stage that at the time of filing petition before the Gujarat High Court, the petitioner had given his address as "Om Parkash Kashmiri Lal Punjabi, 10, Krishna Colony, St. Xavier School Road, Navrangpura, Ahmedabad."
(3.) BEFORE application for cancellation of anticipatory bail was decided by the Gujarat High Court, the petitioner showing himself/giving his address as "Om Parkash Kashmiri Lal Punjabi, r/o 63, Moore Avenue, P.S. Regent Park, Calcutta-40," filed a writ petition before the Calcutta High Court on 22.12. 1993 for stalling the purported move to detain the petitioner in connection with import of said ball-bearings at Kandla Port. The said petition came up for hearing before Shyamal Kumar Sen, J, on 7.12.1993. The following order was passed in the petition :- "In view of the urgency of the matter, requirement of Rule 27 of the Writ Rules is dispensed with. Petitioner is directed to communicate this order along with copy of the writ petition upon all the respondents in the meantime and affirm affidavit of service. There will be an ad-interim order restraining the respondents from detaining the petitioner in pursuance of purported move to detain the petitioner Om Parkash Kashmiri Lal Panjabi under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in connection with an alleged illicit importation of ball bearings at Kandla Port in connection whereof summon under Section 108, Customs Act, 1962, dated 22.10.1993 being No. F.No. DRI/AZU/INT.-19/93, in connection whereof a show-cause Notice bearing F.No. S/20-73/93/SIB dated 27.11.1993 has been issued by the Collectorate of Customs, Customs House, Kandla, to the petitioner. This interim order is passed on condition that the petitioner will not leave Calcutta without the leave of this court and the learned Advocate for the petitioner undertakes to comply with the above condition on behalf of his client. However, the petitioner is granted leave to attend the Courts and other judicial authorities at Delhi in connection with pending Criminal cases as and when required and he will report to the Officer-in-Charge of the local Police Station there and on his return to Calcutta after attending such cases, will immediately report to the local Police Station here in Calcutta. It appears that on identical matters, N.K. Mitra, J. and Umesh Chandra Banerjee, J, had passed interim orders in similar terms. It also appears that appeals were preferred against the ad-interim orders before the Division Bench consisting of the then Chief Justice Hon'ble P.D. Desai and the Hon'ble Mr. Justice Shyamal Kumar Sen. The Division Bench upon hearing counsel appearing for the parties dismissed the appeals. This interim order will continue for a period of two weeks. Liberty is given to the petitioner to apply for extension of the interim order on the same application upon notice to the respondents. Liberty is also given to the respondents to apply for variation and/or modification of this order upon notice to the petitioner. Let this matter appear as for orders on January 6th, 1994. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned Advocate for the petitioner on his usual undertaking to apply for and obtain certified copy of this order. Sd/- Shyamal Kumar Sen, J." Notice of the writ petition was given to the respondents. When the petitioner came to know that his petition was going to be contested, he got the petition dismissed for non-prosecution. On a statement made by the counsel for the petitioner, the following order was passed by the Calcutta High Court on 10.3.1994:- "Mr. Banerjee, learned Advocate for the petitioner, states that he had instructions not to proceed with the matter. The Civil Order, is, therefore, dismissed for non-prosecution. Interim orders, if any, stands vacated. Plain copy of this order, counter signed by Assistant Registrar (Court) be given to the learned Advocate for the petitioner, as prayed for. At the time the petition pending at Calcutta High Court was withdrawn, it was not disclosed to the Court that the petitioner has already filed a petition in the Punjab and Haryana High Court for quashing the detention order at the pre-detention stage. The present petition was filed on 8.3.1994. The affidavit which was filed alongwith the petition is dated 6.3.1994. In para 23 of the affidavit as well as of the petition, petitioner has specifically averred that "the petitioner, however, had moved an application before Calcutta High Court when he was residing there, which he has withdrawn." This statement as contained in para 23 of the affidavit as well as the petition, on the face of it, is false as on that date when the affidavit was got attested, it was to the knowledge of the petitioner that the petition had not been withdrawn. In the present petition, the petitioner has shown himself to be resident of "281/B, Bawa Gangapuri Road, Netaji Colony, Panipat, Haryana." ;