PETITIONER:
ASHOK KUMAR
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT27/01/1988
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
OZA, G.L. (J)
CITATION:
1988 SCR (2) 800 1988 SCC (1) 541
JT 1988 (1) 235 1988 SCALE (1)194
ACT:
Constitution of India, 1950, Articles 22(5) and (6).
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974. Section 3. Detention order-
Certain documents though placed before the Detaining
Authority for consideration not supplied to detenu-Effective
representation could not be submitted by detenu-Detention
order-Quashed.
HEADNOTE:
%
The appellant was arrested and detained on 21st March,
1987 pursuant to an order of detention made under s. 3(1) of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974. He was served with the
grounds of detention by the Detaining Authority. In the
grounds it was stated that the appellant had been indulging
in illegal sale and purchase of foreign currency, and also
in the sale and purchase of gold of foreign origin on a
large scale, and that in three premises connected with the
appellant search was carried out on 10th December, 1986
under s. 33 of the Foreign Exchange Regulation Act, 1973.
On 6th April, 1987 the appellant made two
representations; one to the Detaining Authority-the second
respondent, and another to the Central Government-the first
respondent. In these representations the appellant stated
that he had no concern whatsoever as regards the premises
where search was carried out, and US $ and primary gold were
recovered as the said premises did not belong to him but
belonged to his sister-in-law, and that if the relevant
documents on the basis of which the detaining authority came
to its subjective satisfaction are not given it would not be
possible to make any effective representation. On 2nd April,
1987 the appellant also made a representation before the
Advisory Board.
The appellant was produced before the Advisory Board on
29th April, 1987 and the Board heard the appellant in
respect of his representation. Me received a communication
dated 7th May, 1987 from
801
respondent No. l stating that his detention had been
confirmed with effect from 21st March, 1987 for a period of
one year.
The appellant challenged the order of detention in a
writ petition and also prayed for quashing of the said
order. It was contended on his behalf: (1) that the grounds
of detention were supplied on 21st March, 1987 whereas the
vital documents were supplied as late as on 24th April, 1987
and that this was a clear infringement of the provisions of
s. 3(3) of the COFEPOSA Act. (2) That the appellant could
not make an effective representation against the order of
detention in accordance with the mandatory provisions of
Article 22(5) of the Constitution of India. The order of
detention was also challenged on the ground: that the order
of confirmation of detention did not give any indication as
to why the Government had specified or determined the
maximum period of detention of one year, that there had been
an inordinate delay in considering the representation dated
6th April, 1987, that it was disposed of by the Central
Government on 29th April, 1987, and that this delay of 23
days had not been satisfactorily explained. This unusual
delay in the disposal of the representation also rendered
the order of detention bad.
The writ was contested by the first and second
respondents by submitting in their counter affidavits that
at the time of the search of the premises several personal
documents of the detenu like driving licence, his and his
wife's bank passbooks, HUF passbooks, account books were
seized from the searched premises, and that in pursuance of
his representation dated 6th April, 1987 the detenu was
supplied with more documents numbering 150 pages on 24th
April, 1987 although the same had not been relied upon in
forming the subjective satisfaction of the Detaining
Authority.
The High Court dismissed the writ petition in view of
the affidavit filed by the Detaining Authority-Respondent
No. 2 that all the documents seized though placed before the
detaining authority he did not rely on them in forming his
subjective satisfaction in making the order of detention,
and as such the non-supply of certain documents seized from
the premises after search to the detenu along with the
grounds of detention cannot be said to amount to an
infringement of the provisions of Art. 22(5) of the
Constitution rendering the order of detention illegal and
bad.
Allowing the Appeal, the Court,
802
^
HELD: l. It is crystal clear that certain documents
though placed before the Detaining Authority for
consideration were not sup plied to the appellant within 15
days from the date of the order of detention as provided
under s. 3(3) of the COFEPOSA Act. It is also evident that
on the request of the appellant by his representation made
on 6th April, 1987 the documents were supplied to him on
24th April, 1987. The representation of the appellant was
disposed of by the Advisory Board on 29th April, 1987. In
these circumstances, it cannot be denied that the failure on
the part of the Detaining Authority to supply the aforesaid
material documents prevented the appellant from making an
effective representation against the grounds of his
detention, and as such the mandatory provision of Art. 22(5)
had not been complied with. The order of detention is,
therefore, illegal and bad and the same is liable to be
quashed. [807C-E]
2. It is necessary for the valid continuance of the
detention that subject to Art. 22(6) copies of the
documents, statements and other materials relied upon in the
grounds of detention should be furnished to the detenu
alongwith the grounds of detention or in any event not later
than five days and in exceptional circumstances and for
reasons to be recorded in writing not later than fifteen
days from the date of detention. There are no exceptions or
qualifications provided to this rule and if this requirement
of Art. 22(5) read with s. 3(3) COFEPOSA Act is not
satisfied the continued detention order of detenu would be
illegal and void. Appellant directed to be released
forthwith. [807G-H; 808A-B, C]
Smt. Icchu Devi Choraria v. Union of India and Ors.,
[1980] 4 SCC 531 and Kamla Kanahiyalal Khushalani v. State
of Maharashtra and Another, [1981] 2 SCR 459 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .
54 of 1988 .
From the Judgment and order dated 9.10.1987 of the
Delhi High Court in Crl. W.P. No. 262 of 1987.
Soli J. Sorabjee Hukam Chand, Mrs. Nisha Bachi and
Vijay K. Verma for the Appellant.
B. Datta, Additional Solicitor General, P. Parmeswaran
Ashok K. Srivastava, A. Subha Rao and C.V. Subba Rao for the
Respondents.
803
The Judgment of the Court was delivered by
RAY, J. Special leave granted. Arguments heard.
This appeal by special leave is directed against the
judgment and order dated 9th October, 1987 passed by the
High Court of Delhi in Criminal Writ Petition No. 262 of
1987 discharging the rule and rejecting the writ petition.
The appellant was arrested and detained on 21st March,
1987 from his residence at Dahiwali Gali, Karola Market,
Naya Laxman Mandir, Bharatpur by an order of detention made
under Section 3(1) of Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 with a view to
prevent him from acting in any manner prejudicial to the
augmentation of foreign currency and also with a view to
prevent him from engaging and keeping smuggled gold. The
appellant was served with the grounds of detention by the
Detaining Authority, Shri Tarun Roy, Joint Secretary to the
Government of India. It had been stated therein that the
appellant may make any representation to the Advisory Board
against his detention.
In the grounds of detention it was inter alia stated
that on the basis of the secret information received in the
office of the Assistant Director, Enforcement Directorate,
Agra, the appellant had been indulging in illegal sale and
purchase of foreign currency and also in the sale and
purchase of gold of foreign origin on a large scale and that
search of the following premises connected with the
appellant was carried out on 10th December, 1986 under
Section 37 of the Foreign Exchange Regulation Act, 1973:
(i) Premises situated in Purana Laxman Mandir,
opposite Dr. Ram Kumar, Bharatpur.
(ii) Premises situated in Daniwali Gali, Karola
Market, Naya Laxman Mandir, Bharatpur, and
(iii)Business premises of M/s Madanlal, Mohanlal
and Baldev Singh, Karola, Laxman Mandir
Crossing, Near Bata Shop, Bharatpur.
On 6th April, 1987, the appellant made two
representations; one to the Detaining Authority, 2nd
respondent and another to the Central Government, the Ist
respondent. In the representation to the Detain-
804
ing Authority, the appellant stated that he had no concern
whatsoever as regards the residential premises situated at
Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur where
the search was conducted and on such search US $ and primary
gold were recovered, as the said premises does not belong to
him but belongs to his sister-in-law. The appellant’s
residential premises is situated in Dahiwali Gali, Karola
Market, Naya Laxman Mandir, Bharatpur. It had also been
stated therein that the relevant documents on the basis of
which the detaining authority came to the subjective
satisfaction were not supplied to him and unless the said
documents are given to him it will not be possible for him
to make any effective representation against the grounds of
detention. In the second representation to the Secretary,
Government of India dated 6th April, 1987 also the appellant
while reiterating the same facts stated that even the house
from where the alleged recovery of foreign currency and gold
was made is not his residential premises but is the
residence of his sister-in-law. The appellant also stated
that he was innocent and he should be released forthwith by
revoking the order of detention. The appellant also stated
that the Detaining Authority supplied him the relevant
documents and also the information asked for in his letter
dated 6th April, 1987 only on 24th April, 1987. The
appellant also made a representation before the Advisory
Board on 27th April, 1987.
The appellant was produced before the Advisory Board on
29th April, 1987 and the Advisory Board heard the appellant
in respect of his representation. The appellant received a
communication dated 7th May, 1987 from the respondent No. 1
stating therein that his detention had been confirmed with
effect from 21st March, 1987 for a period of one year.
The appellant thereafter challenged the order of
detention by a writ petition and also prayed for quashing of
the said order of detention on the ground inter alia that
the documents relied upon by the Detaining Authority in
coming to his subjective satisfaction for making the order
of detention in question which were required to be supplied
to him along with the grounds of detention, were not
supplied to him. The grounds of detention were supplied to
him on 21st March, 1987 whereas the vital documents were
supplied to him as late as on 24th April, 1987 in
infringement of the provisions of Section 3(3) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act to be hereinafter called as the said Act.
This vitiated the entire detention order in as much as the
appellant could not make an effective representation against
his order of detention in accordance
805
with the mandatory provisions of Article 22(S) of the
Constitution of India. The order of detention was also
challenged on the ground that the order of confirmation of
detention did not give any indication as to why the
Government had specified or determined the maximum period of
detention of one year. The detention order is, therefore,
illegal. It had also been stated in the writ petition that
there had been inordinate delay in considering the
representation sent on 6th April, 1987 through the
Superintendent of Jail to the Detaining Authority and the
Central Government. The said representation was disposed of
by the Central Government on 29th April, 1987 and as such
there was delay of 23 days which had not been explained.
This unusual delay in the disposal of the detenu’s
representation renders the order of detention bad.
A counter affidavit was filed on behalf of respondent
Nos. 1 and 2 affirmed by one Shri S.K. Chaudhary, Under
Secretary, Ministry of Finance, Department of Revenue. In
para 4 of the said affidavit it was stated that “it is also
pertinent to submit that at the time of search several
personal documents of the petitioner like copy of driving
licence, his and his wife’s bank passbooks including a HUF
passbook, account books were seized from the said premises.”
It was also stated in para 7 of the said affidavit that the
information sought in the representation of 6th April, 1987
received in the office of the Detaining Authority on 15th
April, 1987 was totally irrelevant for the purpose of making
any representation. In para 10 of the said affidavit it had
been stated that the detenu was supplied with more documents
numbering 150 pages on 24th April, 1987 in pursuance of his
representation dated 6th April, 1987, although the same were
not relied upon in forming the subjective satisfaction of
the Detaining Authority. The Detaining Authority, Shri Tarun
Roy, Joint Secretary to the Government of India, Department
of Revenue, Ministry of Finance, New Delhi in paras 3 and 4
of his affidavit stated as under:
“3 …… That I was aware that no separate
statement had been recorded by the Custom
authorities and as such there was no question of
suppressing the same. The result of the seizure
was also placed before me as given in the
panchanama which were placed before me.
4. That although all the documents seized from the
premises of the petitioner were before me but, I
had not relied on all of those documents in
forming my subjective satisfaction. I have relied
only on those documents which
806
are mentioned to be relied in the list of
documents annexed with the grounds of detention.”
The learned Judge of the Delhi High Court while
dismissing the writ petition observed that in view of the
affidavit filed by the Detaining Authority, the respondent
No. 2, that all the documents seized though placed before
him, he did not rely on all of them in forming his
subjective satisfaction in making the order of detention and
as such the non-supply of those documents to the petitioner
along with the grounds of detention, cannot be said to
amount to infringement of the provisions of Article 22(5) of
the Constitution rendering the order of detention illegal
and bad.
Mr. Soli J. Sorabji, learned counsel appearing on
behalf of the detenu has submitted with much vehemence that
non-supply of the vital documents which were considered by
the Detaining Authority in forming his subjective
satisfaction violates the provisions of Article 22(5) of the
Constitution as the appellant was prevented from making
effective representation to the grounds of detention. It has
been submitted by the learned counsel that those documents
which comprised of the 3 bank passbooks of the appellant and
his wife and one driving licence of the appellant which had
been seized and taken possession of by the Customs
Department will clearly show that the residential address of
the appellant mentioned therein is the house in Dahiwali
Gali, Karola Market, Naya Laxman Mandir, Bharatpur and not
in Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur which
house does not belong to the appellant but to his sister-in-
law. The foreign currency i.e. US $ as well as the primary
gold which were found out on search from the house in Purana
Laxman Mandir cannot be connected with the appellant as he
had specifically stated in his representation that he is not
the owner of the said house. It has also been submitted in
this connection that in spite of the specific objection
taken by the appellant in his representation, no attempt was
made on behalf of the Detaining Authority to ascertain who
is the owner of the said house. The non-supply of the said
documents had greatly handicapped the appellant in making an
effective representation against the rounds of detention
served on him.
This submission of the learned counsel was tried to be
repelled by the Additional Solicitor General by contending
that in view of the affidavit filed by the Detaining
Authority, Shri Tarun Roy, Joint Secretary to the Government
of India, Department of Revenue, Ministry of Finance, that
he did not consider those documents though the same
807
were placed before him in forming his subjective
satisfaction in making the order of detention and so non-
supply of those documents along with the grounds of
detention to the appellant did not vitiate the order of
detention. It was also submitted that the appellant and his
relation, Manoj Kumar were present at the time of the search
and the appelLant subsequently fled away go to show that the
house in Purana Laxman Mandir from where the foreign
currency and primary gold were recovered belonged to the
appellant.
After considering the submission, it is crystal clear
that the aforesaid documents though placed before the
detaining Authority for his consideration were not supplied
to the appellant within 15 days from the date of the order
of detention as provided under Section 3(3) of the said Act.
It is also evident from the affidavit of Shri S.K.
Chaudhary, Under Secretary, Ministry of Finance, Department
of Revenue, New Delhi that on the request of the appellant
by his representation dated 6th April, 1987, the documents
were supplied to him on 24th April, 1987. The representation
of the appellant was disposed of by the Advisory Board on
29th April, 1987. In these circumstances, it cannot be
denied that the failure on the part of the Detaining
Authority to supply the aforesaid material documents
prevented the appellant from making an effective
representation against the grounds of detention and as such
the mandatory provisions of Article 22(5) have not been
complied with. The order of detention in our considered
opinion, is therefore, illegal and bad and the same is
liable to be quashed. As the appeal succeeds on this ground
alone we do not deem it necessary to consider the other
objections raised against the order of detention.
It is pertinent to refer here to the decision of this
Court in Smt. Icchu Devi Choraria v. Union of India and
ors., [1980] 4 SCC 531 wherein it has been held that the
right to be supplied the copies of the documents, statements
and other materials relied upon in the grounds of detention
without any undue delay flows directly as a necessary
corollary from the right conferred on the detenu to be
afforded the earliest opportunity of making a representation
against the detention, because unless the former right is
available, the latter cannot be meaningfully exercised. It
has been further held that it is necessary for the valid
continuance of detention that subject to Article 22(6)
copies of the documents, statements and other materials
relied upon in the grounds of detention should be furnished
to the detenu along with the grounds of detention or in any
event not later than five days and in exceptional
circumstances and for reasons to he recorded in writing,
808
not later than fifteen days from the date of detention.
There are no exceptions or qualifications provided to this
rule and if this requirement of Article 22(S) read with
Section 3(3) of COFEPOSA Act is not satisfied, the continued
detention of the detenu would be illegal and void. Similar
observations have been made in the case of Kamla Kanahiyalal
Khushalani v. State of Maharashtra and Another, [1981J 2 SCR
459.
For the reasons aforesaid, we allow the appeal and set
aside the judgment and order of the High Court and quash the
order of detention. We direct the Government to release the
appellant from jail forthwith. There will be no order as to
costs.
N.V.K. Appeal allowed.
809