Supreme Court of India
SMT. POONAM LATAversusM.L. WADHAWAN & ANR.
- Citation
- 1987 INSC 202
- Decided
- 7 August 1987
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The order of preventive detention under COFEPOSA is valid despite the petitioner’s prior custody; parole time does not count towards the statutory period, and the absence of a written summons does not constitute prejudice.
Summary
The Supreme Court considered a writ petition challenging the detention of Shital Kumar under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petition raised three main points: (i) whether the period of parole granted earlier should be counted towards the one‑year statutory detention period, (ii) whether the petitioner was prejudiced by the absence of a written summons under section 108 of the Customs Act, and (iii) whether an order of preventive detention is invalid if the person is already in custody when the order is made. The Court held that parole time is excluded from the detention period, that no written summons existed and therefore no prejudice arose, and that the detaining authority’s awareness of the petitioner’s custody does not vitiate the order so long as it is satisfied of the necessity of detention. Consequently, the writ petition was dismissed.
Issues considered
- Whether the period of parole should be included in computing the one‑year detention term under s.3(1) of COFEPOSA.
- Whether the lack of a written summons under s.108 of the Customs Act prejudiced the petitioner’s right to make an effective representation before the advisory board.
- Whether a preventive detention order made when the person is already in custody is void or vitiated.
Legislation cited
Subjects
preventive detentionCOFEPOSAparole periodCustoms Act summonsjurisdiction of detaining authorityprofessional conduct of counsel
Judgment
A SMT. POONAM LATA
v.
M.L. WADHAWAN & ANR.
AUGUST 7, 1987
-4
B [A.P. SEN AND RANGANATH MISRA, JJ.]
-....
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: s. 3( 1)-Preventive detention-Order made when
detenu in jail-Order whether vitiated.
In criminal writ petition No. 292 of 1986, preferred by detenu's
c wife on various grounds, the Vacation Judge ordered his release on
parole till further orders. However, when the petition came up for
"
hearing before the Division Bench on 3rd March, 1987 the counsel
confined his submissions to one aspect only that arose out of the pro-
ceedings in Court i.e., that the period of parole should not be added to
D the period of detention. That plea was rejected and the petition dlsmis· ~
sed on 22nd April, 1987.
In the present writ petition filed thereafter on April 27, 1987 it
was averred that the counsel did not give up the other points in the
earlier writ petition, and had the Court indicated that the petitioner's
E submission would not find favour with it he would have proceeded to ._..,
argue the case. Further, two more points were raised: (1) that the
detenu had been prejudiced in making an effective representation to the
Board against his detention in the absence of the summons issued under ~
s. 108 of the Customs Act to him, which document had not been sup·
plied in spite of demand, and (2) that since the detenu was already in
F custody at the time the order of detention was served the said order was
liable to be quashed.
Dismissing the writ petition,
HELD: 1. It is common experience that when several contentions ~
G are advanced in the pleadings, counsel chooses to press one or some out
of the several contentions at the time or the bearing. In the instant case,
only one point was argued at the previous hearing. It was open to the
counsel to make full submissions on all aspects arising in the writ pell·
lion. That having not been done it was Improper on his part to raise
such allegations. [844A, D]
H
840
POONAM LATA v. M.L. WADHAWAN 841
2.1 The detenu had been called by the Customs Authorities for A
investigation on February 27, 1986. A statement had been made by him
under s. 108 of the Customs Act and thereafter he was taken into
custody and produced before the Additional Chief Metropolitan Magis-
trate, who remanded him to custody and directed him to be produced
on the following day in the court. By the time the order of detention
~ under s. 3(1) of the COFEPOSA Act for one year came to be made on 8
February 28, 1986 he was in jail at the most for one day. Chargesheet
had not been submitted against him in the criminal case. [847FG]
2.2 Since there was no summons and the detenu had been orally
- directed to attend the omce by the authorities concerned, it could not be
held that summons under s. 108 of the Customs Act was in existence.
Once the summons was not in existence it could not be said that there
C
was prejudice to the detenu on account of the authority's withholding
the summons. [846D]
3.1 The fact that the detenu was already in detention did not take
away the jurisdiction of the detaining authority in making an order of D
preventive detention. What is necessary in a case of that type is to
satisfy the court when detention is challenged on that ground that the
detaining authority was aware of the fact that the detenu was already in
custody and yet he was subjectively satisfied that his order of detention
became necessary. [851D]
E
3.2 1n the instant case, there was sufticient material to show that the
detaining authority was aware of the fact that the petitioner was in
custody when the order was made yet he was satisfied that his preven-
tive detention was necessary. The order of detention was, therefore, not
vitiated. [851E]
F
Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416;
Ramesh war Shaw v. District Magistrate Burdwan, (1964] 4 SCR 921;
Kartic Chandra Guha v. State of West Bengal, [1975] 3 SCC 490; Dr.
Ramakrishna Rawat v. District Magistrate, Jabalpur, (1975] 4 SCC 164
Vijay Kumar v. State ofJammu and Kashmir, i1982] 2 SCC 43; Merugu
"1' Satyanarayana v. State of Andhra Pradesh, [1982] 3 SCC 301 and Suraj G
Pal Sahu v. State of Maharashtra, (1986] 4SCC 378, referred to.
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Cr!.) No. 408 of 1987.
(Under Article 32 of the Constitution of India). H
842 SUPREME COURT REPORTS [1987] 3 S.C.R.
A R.K. Garg and Ms. Rani Jethmalani (Not present) for the Peti-
tioner.
Anil Dev Singh, Hemant Sharma and Ms. A. Subhashini for the
Respondent. '
B The Judgment of the Court \Vas delivered by
RANGANATH MISRA, J. 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,
c
dated February 28, 1986, made in exercise of powers vested under
section 3( I) of the Conservation of Foreign Exchange and Prevention
-
of Smuggling Activities Act, 1974 (hereinafter referred to as 'the y
COFEPOSA'). The petitioner made an application to this Court under
Article 32 in Writ Petition (Cr!.) 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
D release of the detenu on parole on the following terms:-
"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
E time ....... In the meantime the respondents will be at
liberty to make a,n 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." ·
y
On 3rd March, 1987, the writ petition was listed for hearing before the
F 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 submissions 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
G the date of detention having expired on February 20, 1987, the im- Y
pugned 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:-
H
POONAM LATA v. M.L. WADHAWAN (MISRA, J.] 843
"In the premises, it must accordingly be held that the A
period of parole has to be excluded in recokning the period
of detention under sub-section ( 1) of section 3 of the Act."
In paragraph 14 of the judgment, it was further observed:-
"For these reasons, the only contention advanced by B
Shri .Tethmalani 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 (l)
of section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, must fail.
c
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 deten-
tion. We give the detenu 10 days' time to comply with this
direction failing which a non-bailable warrant for his arrest D
shall issue."
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:-
E
"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 F
squarely in this case. It would have been a breach of profes-
sional 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 Jethma-
lani, senior counsel, did not give up the other points in the
said writ petition. However, the Hon'ble Court has dismis- G
sect 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 H
the case."
844 SUPREME COURT REPORTS [1987] 3 S.C.R.
A 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 -.{
B accepts tha.t position. It, therefore, follows that Mr. Jethmalani made
submissions confined to one contention-a corrtention which had not
been raised in the earlier writ petition but arose out of the proceedings --r
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 -
c 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.
J ethmalani in course of arguments that the submission on this limited
point did not find favour with the Court he would have proceeded to
D argue the other points. That certainly was an unusual expectation. It ~
was open to Mr. Jethmalani to make full submission on all aspects
arising in the writ petition. That having not been 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
E fact that he had confined his arguments to one point settled the writ
petition as senior counsel with the allegations quoted above in para- · -~
graph 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 incor-
F rectness 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
G contention which was dealt with by the judgment in the writ petition. Y
Mr. Garg, learned. counsel for the petitioner has raised two
points before us for consideration: (I) the detenu had been prejudiced
in making an effectiw representation to the Board against his deten-
tion in the absence of the summons issued under section 108 of the
H Customs Act to him. In spite of demand, that document had not been
POONAM LATA v. M.L. WADHAWAN [MISRA, J.] 845
supplied, and (2) the petitioner was already in custody at the time the A
order of detention was 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 circum-
stances turns out to be the summons which was served on B
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. I 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 c
annexed hereto and marked as Annexure F. The request
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 D
as required by the detenu's advocate in the letter dated
12.4. 1986 were not supplied as there were no written sum-
mons served on the petitioner. I say that after the comple-
tion of the search of the residential premises of the petitioner
on 27.2.1986 the petitioner was taken by DR! officers. As
the petitioner happened to be in the presence of the E
-x empowered officers of DR!, he was accordingly told that
his presence was required for giving evidence and the
petitioner accompanied the DR! officers on his free will.
No written summons were, therefore, served on the
petitioner ........................................... "
F
Section 108( 1) of the Customs Act provides:-
"Any gazetted officer of customs shall have power to
summon any person whose attendance he considers neces-
sary either to give evidence or to produce a document or G
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:-
H
846 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
A "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."
B On 12th of April, 1986, counsel for the petitioner wrote a letter
to the detaining authority wherein it was stated:-
" .......... I have to further request you to supply
me with a copy of the summons said to have been served on
c
client on or about 27th of February, 1986. The DR! has not
yet supplied to my client the documents as stated in your
above-mentioned rejection letter."
-
In view of the positive case of the respondents that there was no
summons and the detenu had been orally directed to attend the office
by the authorities concerned, we think that it would not be proper to
D hold that summons under section 108 of the Customs Act was in exis-
tence. Once the summons is not in existence, there is no foundation in
the submission that there is prejudice to the detenu on account of the
authority's withholding the summons. The first contention fails.
Admittedly the petitioner.was taken into custody around 2.00
E p.m. on 27 .2.1986, in course of investigation of the case. He was
produced before the Judicial Magistrate and an order was made re-
quiring him to be produced next day in the court. Paragraphs 7 and 8
of the grounds served on the petitioner run thus:-
y
" 7-1 have carefully gone through the facts and
F circumstances of the case, relevant documents and also the
statements of various persons in the subject case. I have
also seen and gone through the various applications moved
in the court of the ACMM, New Delhi and orders passed
thereon."
G "8-In view of the facts mentioned hereinabove, I Y
have no hesitation in arriving at the conclusion that you
have been dealing in smuggled goods otherwise than engag-
ing in transporting or concealing or keeping smuggled
goods. Even though the investigations in the subject case is
in progress, prosecution and adjudication proceedings
H under the Customs Act, 1962, are likely to be initiated
POONAM LATA v. M.L. WADHAWAN (MISRA, J.) 847
against you, I am satisfied that you should be detained A
under the Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act, 1974, with a view to
preventing you from dealing in smuggled goods otherwise
than by engaging in transporting or concealing or keeping
smuggled goods."
13
In paragraph 7 of the counter-affidavit, it has been stated:-
" ......... The petitioner, as already stated, was
-
summoned after the search of his residental premises on
27.2. 1987 and his statement recorded by the competent
officer of Dip. The petitioner was arrested at 2.00 p.m. on c
27 .2. 1986 and was produced at the residence of ACMM,
New Delhi on 27.2. 1986 at about 8.00 p.m ........... ".
In paragraph 9 of the said affidavit, it is further alleged that:-
"Shri Shital Kumar was arrested at 1400 hrs. of D
27.2.1986 and produced before the ACMM around 2000
hrs. at his residence the same day. Shri Shital Kumar was
then remanded to judicial custody till 28.2.1986 by the said
magistrate."
The order of detention is dated 28.2. 1986. It was addressed to the E
detenu at his residential address at Delhi and not to the jail authorities
for service on the detenu.
.'"!' From the facts and circumstances emerging in this case it is clear
' that the detenu had been called by the Customs Authorities for investi-
gation. A statement had been made by him under section 108 of the F
Customs Act and thereafter he was taken into custody and produced
before the Additional Chief Metropolitan Magistrate who ramanded
him to custody and directed him to be produced on the following day
in the court. By the time the order of detention came to be made the
petitioner was in jail for at the most one day. Charge-sheet had not
been submitted against him in the criminal case and he had been G
remanded to the judicial custody on the 27th of February, 1986 with
the direction to be produced before the Metropolitan Magistrate on
the 28th of February, 1986.
Now it has to be seen if on these facts the order of detention
would become vitiated. Strong reliance was placed by Mr. Garg on a H
848 · SUPREME COURT REPORTS ( 1987] 3 S.C.R.
A two-Judge judgment of this Court in Binod Singh v. District Magistrate,
Dhanbad, [1986] 4 SCC 416. Paragraph 3 of the judgment indicates
the facts as follows:-
"The petitioner/appellant was in detention when the
petitioner/appellant was served with the orders of deten-
B tion. There were criminal cases against the petitioner. -f '
There was a murder case in respect of Crime No. 331 of
1985. Jn the said case, investigation was in progress and the
defence of the petitioner in the murder case was that he was
falsely implicated and was not at all concerned with the
c
murder. When the order was passed, the petitioner had not
surrendered but when the order was served, the petitioner
had already surrendered in respect of the criminal charge
-
against him. At the relevant time, the petitioner was under
trial in the said criminal case."
On such facts, it was the contention of the petitioner therein that the
D order of preventive detention could only be justified against a person ~
in detention if the detaining authority was satisfied that his release
from detention was imminent and the order of detention was necessary
for putting him back in jail. This Court therein pointed out:-
"The principles applicable in these types of preven-
E tive detention cases have been discussed in the decisions of
Suraj Pal Sahu v. State of Maharashtra, ( 1986] 4 SCC 378
and Raj Kumar Singh v. State of Bihar, (1986] 4 SCC 407.
Judged on the basis of the said principles, there is no
ground for interference with the order of detention as pas- y
sed. It, however, appears that after the order of detention
F was passed and before the actual service of the order of
detention, the petitioner was taken into custody. From the
affidavit of the District Magistrate, it does not appear that
either the prospect of immediate release of the detenu or
other factors which can justify the detention of a person in
detention were properly considered in the light of the
G principles noted in the aforesaid decisions and especially in
the decisions in Rameshwar Shaw v. District Magistrate,
Burdwan and Ramesh Yadav v. District Ma1:istrate, Etah.
"
A Constitution Bench of this Court in Rameshwar Shaw v. District
H Magistrate, Burdwan, ( 1964] 4 SCR 92 l held as follows:-
POONAM LATA v. M.L. WADHAWAN (MISRA, J.] 849
"As an abstract proposition of law, there may not be A
any doubt that section 3( l)(a) does not preclude the
authority from passing an order of detention against a
person whilst he is in detention or in jail; but the relevant
facts in connection with the making of the order may differ
and that may make a difference in the application of the
[l
principle that a detention order can be passed against a
person in jail."
The self-same question was examined in Karlie Chandra Guha v. State
of West Bengal, [1975) 3 SCC 490 where a three-Judge Bench of this
- Court observed:-
c
"It is true that he had been held in custody in connec-
tion with the offences under the Arms Act which are non-
bailable offences, but even so, it was open to the trying
magistrate to release the petitioner on bail. The District
Magistrate, on information received by him, thought that
the petitioner was likely to be released on bail in which case D
having regard to his past activities, it was open to the Dis-
trict Magistrate to come to the reasonable conclusion that
having regard to the desperate nature of the activities of
the petitioner, his enlargement on bail would be no deter-
rent to his desperate activity. Hence the District Magistrate
was entitled to pass the order of detention if that was neces- E
sary to prevent the petitioner from acting in a manner pre-
judicial to the maintenance of public order."
'"( That very question again came before a two-Judge bench in Dr.
' Ramakrishna Rawat v. District Magistrate, Jabalpur, [1975) 4 SCC 164
where it was observed:- F
"In the case in hand, as already noticed, the peti-
tioner was in jail custody in proceedings under section 151
Cr. P. C. That custody was obviously of a short duration.
The mere service of the detention order on the petitioner in
jail would not therefore invalidate the order. On the basis G
of the antecedent activities of the petitioner in the proxi-
mate past the detaining authority could reasonably reach
its subjective satisfaction about his tendency or inclination
to act in a manner prejudicial to the maintenance of public
order after his release on the termination of the security
proceedings under the Code." H
850 SUPREME COURT REPORTS (19871 3 S.C.R.
A In Vijay Kumar v. State of Jammu & Kashmir, (1982] 2 SCC 43 a
two-Judge Bench of this Court pointed out:-
"If the detenu is already in jail charged with a serious
offence, he is thereby prevented from acting in a manner
prejudicial to the security of the State. May be, in a given-/
B case there yet may be the need to order preventive deten-
tion of a person already in jail. Bui in such a situation the
detaining authority must disclose awareness of the fact that · ~
the person against whom a11 order of preventive detention
c
is being made is to the knowledge of the authority already
in jail and yet for compelling reasons a preventive deten-
tion order needs to be made."
-
Thal vexed question came before a tw1>-Judge bench of this Court in
the case of Merugu SaJyanarayana v. State of Andhra Pradesh, [198213
sec 301 wherein ii was observed:-
D "Now, if the man is already detained can a detaining ;......
authority be said to have been subjectively satisfied that a
preventive detention order be made?"
The Court then referred to the Constitution Bench decision in Ramesh-
war Shaw's case (supra) and left it as a matter to be decided in every
E individual case on its own facts. The Court also indicated that it was
not a matter of jurisdition but had to be decided on the facts of each -~
case.
We may now refer to a recent judgment of a three-Judge Bench
in the case of Swaj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378.
F Mukharji, J. who delivered the judgment in Binod Singh's case (supra)
on which Mr. Garg has relied has also delivered the judgment in this
case. Therein it was said:-
"In Ramesh Yadav v. Di$trict Magiltrate, Etah, ( 19851
4 sec 232 it was held that merely on the ground that any
G accused in detention as an undertrial prisoner was likely to
get bail,. an order of detention under the National Security
Act should not ordinarily be passed. If the apprehension of
the detaining authority was true, court observed, the bail
application had to be opposed and in case bail was granted,
challenge against that order in the higher forum had to be
H raised. We respectfully agree with this conclusion. But this
POONAM LATA v. M.L. WADHAWAN !MISRA, J.J 851
principle will have to be judged and applied in the facts and A
circumstances of each case. Where a person accused of
certain offences whereunder be is undergoing trial or has
been acquitted, the appeal is pending and in respect of
which he may be granted bail may not in all circumstances
entitle an authority to direct preventive detention and the B
principle enunciated by the aforesaid decision must apply
but where the offences in respect of which the detenu is
accused are so interlinked and continuous in character and
are of such nature that these affect continuous maintenance
of essential supplies and thereby jeopardise the security of
- the State, then subject to other conditions being fulfilled, a
man being in detention would not detract from the order C
being passed for preventive detention ................. "
It is thus clear that the fact that the detenu is already in detention
does not take away the jurisdiction of the detaining authority in mak-
ing an order of preventive detention. What is necessary in a case of D
that type is to satisfy the court when detention is challenged on that
ground that the detaining authority was aware of the fact that the
detenu was already in custody and yet he was subjectively satisfied that
his order of detention became necessary. In the facts of the present
case, there is sufficient material to show that the detaining authority
was aware of the fact that the petitioner was in custody when the order E
was made, yet he was satisfied that his preventive detention was neces-
sary. We do not think there is any force in this contention of Mr. Garg.
Since both the contention canvassed are rejected, the writ petition is
dismissed.
P.S.S. Petition dismissed. F
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