BAL CHAND BANSALversusUNION OF INDIA & ORS.

                                                                                 'I
A                         BAL CHAND BANSAL
                                   v.
                         UNION OF INDIA & ORS.

                                APRIL 11, 1988

B           [A.P. SEN AND LAUT MOHAN SHARMA, JJ.]                                    ~
           Conservation of Foreign Exchange and Prevention of Smuggling




                                                                                 ·~
    Activities Act, 1974: s.3( ])-Preventive detention-Compelling neces-
    sity for-Detenu already in judicial custody-Likely to be released on
    bail-Order whether punitive.
c       The petitioner was apprehended on April 2, 1987 on information
  provided by his associate that he was the main person directing illegal
  remittances of money to foreign countries. He was formally arrested on
  April 3, 1987 and remanded to judicial custody till April 13, 1987. His
  associate was in the meantime enlarged on bail and being apprehensive
D that the petitioner too may be released on April 13, 1987 when his
  application was to come up, an order of detention made under Section
  3(1) of the COFEPOSA Act was served on him on that day. The applica-
  tion for bail tiled hy him was actually allowed the same day i.e. April
  13, 1987.
                                                                                     ~
E         Petitioner's representation a~ainst the detention was rejected and
    a Writ of Habeas Corpus under Article 226 of the Constitution was
    dismissed by the High Court. In the Special Leave Petition arising out of
    the High Court's Order and the Writ Petition under Article 32 of the
    Constitution, it was contended that the impugned order amounts to

F
    double detention as the petitioner was already in jail when the detention
    order was made, and that it was essential for the detaining authority to
    have been aware of the fact that the petitioner was already in jail and
                                                                                 -)-
                                                                                 I

    was likely to be released on bail and further be had to be satisfied that
    compelling necessity existed for the detention, none of which conditions
    were satisfied.

G         Dismissing the petitions,
                                                                                     )
          HELD: 1. A perusal of the grounds of detention clearly indicates
    that the detaining authority was conscious of the fact that the petitioner
    was in judicial custody and was apprehensive that he would be released
    on bail when an application for bail moved on his habalf was going to he
H   heard on April 13, 1987. The order passed on the hall application of the
                                       494
                                B.C. BANSAL v. U.0.1.                           495

    petitioner's associate was also referred to therein. Thereafter, the               A
    detaining authority had mentioned his satisfaction about the necessity
    of the detention. [497F-H]

          2. The object of detention has to be prevention of a detenu from
    indulging in activities prejudicial to the conservation of foreign                 B
    exchange resources, and not to frustrate his trial in a criminal case nor
    as a punitive measure. [4988]

           In the instant case the role of the petitioner has been detailed in
    the grounds showing how be got illegally siphoned the foreign exchange
    to the tune of about 2 crores of rupees out of the country. The grounds
... also refer to the statements made by his associates which indicate that            c
    offences in respect of which the detenu was accused of were so inter-
    linked and continuous in character and were of such nature that they
    fully justified the detention order. In the circumstances, the satisfaction
    of the detaining authorlty specilically recorded cannot be doubted. [498C, D, GI
                                                                                       D
          Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378, refer-
    red to.

          3. Merely because the prayer for hail made on behalf of the
    petitioner was not opposed on behalf of the respondents before the
    Magistrate, it cannot he said that his detention was not called for.               E
    Having regard to the circumstances arising in the case, no such infer-
    ence is permissible to he drawn in favour of the petitioner. [498H; 49981

          Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232,
    distinguished.
                                                                                       F
          CRIMINAL APPELLATE JURISDICTION: Special Leave
    Petition (Criminal) No. 3115of1987.

         From the Judgment and Order dated 29.10.1987 of the Delhi
    High Court in Criminal Writ Petition No. 219 of 1987.
                                                                                       G
         Kapil Sibal, Pinaki Mishra, Ms. Bina Gupta and Atul Tewari for
    the Petitioner.

         Kuldip Singh, Additional Solicitor General, V.C. Mahajan,
    C.V. Subba Rao, Ms. A. Subhashini, Hemani Sharma and Arun
    Madan for the Respondents.                                                         H
             I
    496                   SUPREME COURT REPORTS             [1988] 3 S.C.R.

          The Judgment of the Court was delivered by
A
          SHARMA, J. The petitioner has challenged his order of deten-
   tion made under Section 3( 1) of the Conservation of Foreign Exchange
   and Prevention of Smuggling Activities Act, 1974 (hereinafter referred
   to as the COFEPOSA). He filed an application under Article 226 of
B the Constitution before the Dellri High Court, being Writ Petition No. 219 of
    l 987, which was dismissed by the judgment dated 29-10-1987
   impugned in the S.L.P. (Cr!.) 3115 of 1987. He has also filed an appli-
  .cation directly before this Court under Article 32 of the Constitution .
   which has been registered as Criminal Writ Petition No. 830 of 1987.

C       2. In January 1987, on receipt of a confidential information by
  the Directorate of Enforcement, Delhi Zone, New Delhi, that a group
  of persons were engaged in illegal activities causing remittances of
  large amounts of money to foreign countries, an inquiry was instituted.
  It appeared that the remittances were ostensibly made for import of
  certain goods on the basis of forged documents and actually goods
D were not received from outside. Information collected in the course of
  inquiry disclosed that a number of persons were engaged in the crimi-
  nal activities and were operating through five Indian firms and a
  number of foreign firms in Hong Kong and Singapore. On 20-2-1987,
  one Sita Ram Aggarwal, associate of the petitioner, disclosed during
  his interrogation, facts which indicated that the petitioner was the
E main person directing the illegal activities. The petitioner was
  apprehended in a ho•.el in Calcutta on 2-4-1987 and on being
  questioned, made certain statements. He was formally arrested the
  next day and was produced before the Additional Chief Metropolitan
  Magistrate, New Delhi, who remanded him to judicial custody till
  13-4-1987. Sita Ram Aggarwal, the aforesaid associate of the peti-
F tioner was in the meantime enlarged on interim bail which was
  extended after expiry of the initial period, and, according to the case
  of the respondents, the detaining authority apprehended that the
  petitioner also was likely to be released on bail on 13-4-1987. In this
  background the impugned· order of detention was passed and served
  on him. The application for bail by the petitioner which had already
G been filed was act4ally allowed the same day, i.e. on 13-4-1987. After
  his representation against the detention order was rejected, the
  petitioner moved the Delhi High Court for a writ of habeas corpus
   which was dismissed by the order dated 29-10-1987 challenged in the
  special leave petition. The Writ Petition No. 830 of 1987 was filed
   before this Court on 9-11-1987. Both the cases are being disposed of by
H this judgment.
                   B.C. BANSAL v. U.0.1. [SHARMA, l.I                  497

      3. When the cases were placed for preliminary hearing before            A
us, we directed notice to be issued only on two of the grounds taken b)(
the petitioner, namely, whether there was compelling necessity for
passing the order as the petitioner was already in judicial custody, and
whether the order was passed for the collateral purpose to frustrate the
grant of bail and was punitive in nature.                                     B
       4. The learned counsel for the petitioner has contended that the
impugned order amounts to double detention of the petitioner as he
was already in jail when the detention order was made. Relying upon
several decisions of this Court it was argued that it was essential for the
detaining authority to have been aware of the fact that the petitioner
was already in jail and was likely to be released on bail and further he      c
had to be satisfied that compelling necessity existed for the detentionc
It is said that none of these conditions is satisfied.

       5. Mr. Kuldip Singh, the learned Additional Solicitor General
 appearing on behalf of the respondents said that there cannot be any
                                                                              D
 manner of doubt that the detaining authority was fully aware of the
fact that the petitioner was already in custody and that he was likely to
 be released on bail on 13-4-1987. Besides, relying on the counter
 affidavit, the learned counsel placed before us the original records of
 the case for our perusal. It appears that a note specifically mentioning
 these facts was on the file and immediately there-after the detaining
                                                                              E
.authority recorded his order. It was urged on behalf of the petitioner
that the respondents were not entitled to rely on the original file for
 this purpose and that the awareness of the detaining authority ought to
 have appeared from the grounds themselves and unless that is shown,
 the detention order cannot be defended. Even assuming that the stand
taken on behalf of the petitioner is correct, he cannot succeed in the
                                                                              F
present case. A perusal of the grounds which runs into many pages
 clearly indicates that the detaining authority was conscious of the fact
 that the petitioner was in judicial custody and was apprehensive that
 he would be released on bail. In paragraph 24 of the grounds it was
 stated that the petitioner had been arrested on 3'4-1987 and was in
 judicial custody till 13-4-1987 and in paragraph 26, the detaining           G
 authority reminded the petitioner that an application for bail moved
 on his behalf was going to be heard by the Additional Chief Metropoli·
 tan Magistrate on 13-4-1987. In paragraph 38, the order passed on the
 bail application of the petitioner's associate Sita Ram Aggarwal was
 referred to. Thereafter, the detaining authority had mentioned his
 satisfaction about the necessity of the detention.
                                                                              H
    498                    SUPREME COURT REPORTS             [ 1988] 3 S.C.R.

           6. On the question as to whether the detaining authority was
A
    satisfied about the compelling necessity for the detention order also,
    there is no merit in the petitioner's case. It is true that the order could
    not have been passed for the purpose of circumventing the expected
    bail order. The object of detention has to be prevention of a detenu
    from indulging in activities prejudicial to the conservation of foreign
B   exchange resources, and not to facilitate his trial in a criminal case nor
    as a punitive measure. The learned Additional Solicitor General
    placed before us the grounds served on the petitioner, at some length,
    wherein it is inter alia stated that the petitioner was running a business
    firm under the name and style of "M/s. B.N. Corporation" in Hong
    Kong as also offices in other places including Singapore and got certain
    business firms in India detailed therein registered in Nagaland under
c   'farzi' names and employed a number of persons who were acting at
    his behest. The role of the petitioner has been detailed in the grounds
    showing how he got illegally siphoned the foreign exchonge to the tune
    of about 2 crores of rupees out of the country. Besides the aforementi-
    oned Sita Ram Aggarwal and the petitioner's nephew Subhash Aggar-
D   wal, the other associates working in accordance with the direction of
    the petitioner are mentioned along with their activities. The grounds
    also referred to the statements made by Sita Ram Aggarwal which
    indicated that the petitioner was travelling by air under assumed
    names and has been dodging the authorities when they attempted to
    contact him, before he was apprehended in a Calcutta hotel. It is
E   further said that the petitioner's firm M/s. B.N. Corporation of Hong
    Kong received remittances through bank worth Rs.85-90 lacs during
    the year !986 but did not supply or ship any goods for which the
    invoices were supposed to have been issued. Some of the documents
    are alleged to bear his signatures. We do not think it necessary to deal
    with the grounds in greater detail. The statements indicate that the
F   offences in respect,of which the detenu. is accused of are, in language
    of Mukharji, J., in Suraj Pal Sahu v. State of Maharashtra, [1986] 4
    sec 378, "so interlinked and continuous in character and are of such
    nature" that they fully justify the detention order. In the circumst-
    ances, we do not doubt the satisfaction of the detaining authority
    specifically recorded in paragraph 41 of the grounds.
G
        7. It was also urged on behalf of the petitioner that since the           )
  prayer for bail made on behalf of the petitioner was not opposed on
  behalf of the respondents before the Additional Chief Metropolitan
  Magistrate, it must be held that this detention was not called for.
  Reliance was placed on paragraph 6 of the judgment in Ramesh Yadav
H v. District Magistrate, Etah, [1985] 4 SCC 232. The learned counsel is not
..
!
                        B.C. BANSAL v. ·U.0.1. [SHARMA, J.J                499

     correct in interpreting the observation of this Court relied upon by him     A
     as laying down a principle for general application. The Bench while
     considering the merits of the case before it, made the remark in the
     background of the facts and circumstances of the case. Having regard
     to the circumstances arising in the case before us, no such inference is
     permissible to be drawn in favour of the petitioner. Besides, according
                                                                                  8
     to the respondents, the bail application was as a matter of fact
     opposed. In any view of the matter, this factor is not of much consequ-
     ence in the facts of the present case. In the result, both the writ appli-
     cation and the Special Leave Petition are dismissed.

     P.S.S.                                               Petitions dismissed.