P.H. Abdul Kareem vs Union Of India And Ors. on 1 July, 1994

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Delhi High Court
P.H. Abdul Kareem vs Union Of India And Ors. on 1 July, 1994
Equivalent citations: 1994 IIIAD Delhi 949, 1994 (3) Crimes 395, 58 (1995) DLT 432, 1994 (30) DRJ 306
Author: D Bhandari
Bench: D Bhandari


JUDGMENT

Dalveer Bhandari, J.

(1) This petition under Article 226 and 227 of the Constitution of India has been filed against the order of detention dated 28.7.93 passed against the petitioner by the Joint Secretary to the Govt. of India, Ministry of Finance, Deptt. of Revenue, New Delhi under Section 3(1) of the COFEPOSA.

(2) On the basis .of information that the petitioner was likely to sell foreign currency illegally, the residential premises and office of the petitioner were searched. Though nothing was seized from residential premises but 12,500 U.S. dollar and five loose sheets were seized from the office of the petitioner. On the basis of the said recovery the respondent came to the conclusion that the petitioner was engaged in clandestine business of sale and purchase of foreign currencies in clear violation of provisions of COFEPOSA.

(3) The petitioner was arrested on 18th March, 1993 under Section 35 of Foreign Exchange Regulation Act 1973 and was produced before the Chief Judicial Magistrate, Trivendrum on 19th March, 1993 and he remanded the petitioner to judicial custody till 1st April. 1993.

(4) The petitioner was detained by the order passed by the Joint Secretary, Govt. of India, Ministry of Finance, Deptt. of Revenue, New Delhi on 28thJuly, 1993. This order was passed to prevent the petitioner from further indulging in authorised transactions of foreign exchange which were affecting foreign exchange reserves of he Country.

(5) The petitioner has changelled the detention orders on various grounds detention order has been challenged primarily on the ground that the petitioner made three representations. (1) On 3.11.93 he made representation.under Section 3(1) of Cofeposa read with Article 22(5) of the Constitution of India to the detaining authority. (2) On 5.11.93, the second representation was sent by him to the Chairman, Central Advisory Board, under section 8 of the Copeposa Act, and (3) On 3.11.93, the petitioner had also submitted the representation to His excellency, the President of India.

(6) Though the petitioner has challenged the detention orders on several grounds, but the principal attack of the petitioner has been that his representation under Section 11 sent to His Excellency, the President of India has not been considered till this date. He further submitted that because of non consideration of the petitioner’s representation under Section 11 of Cofeposa, the detention order of the petitioner liable to be quashed.

(7) This Court issued notice on the petitioner’s writ petition and the respondent Union of India filed counter-affidavit of Mr. Mahender Prasad, the the detaining authority, and thereafter filed an additional affidavit of Mr. K.L. Verma, Joint Secretary, Govt. of India, Ministry of Finance, Deptt. of Revenue, New Delhi dated 22nd July, 1994. In the said affidavit of Mr. Verma it mentioned that the petitioner made three representations. First on 3.1 1.1993 addressed to the detaining authority, Joint Secretary, Cofeposa, and identical representation on 3.11.93 to the President of India and the third one on 5.11.93 to the Chairman, Central Advisory Board.

(8) The representation dated 3.11.93 addressed to the Joint Secretary, Cofeposa was received in the Cofeposa Unit on 5.11.93 and of 5.11.93 received on 9.1 1.93 through Superintent, Central Prison, Thiruvananthapuram.

(9) It is submitted in the affidavit that para wise comments were called from the sponsoring authority on 10.11.93 and the same were received on 2.12.93. It was submitted that there is delay of 42 days in getting comments without any explanation. It is also mentioned that representation addressed to the Joint Secretary, Cofeposa and to the Chairman, Central Advisory Board were considered and rejected on 13.12.1993. A memorandum was also issued to that effect to the detenue on 14.12.1993 informing him about the rejection of his representation by the Central Government of his representation dated 3.11.1993 addressed to the Joint Secretary, Cofeposa and representation dated 5.11.1993 addressed to Chairman, Central Advisory Board.

(10) It is categorically admitted in this additional affidavit that due to some inadvertence, the memorandum dated 14.12.1993 did not refer to the representation dated 3.11.1993 which was addressed to the President “I India, It is also mentioned in the affidavit that the above information in this Affidavit is in partial supersession of the reply given in paras 10 and 11 of the earlier affidavit it dated 12.5.1994.

(11) The position which now clearly emerges is that the representation sent to Hon’ble the President on 3.11,1993 was not considered and disposed of and other two representations, one given to the Joint Secretary,COFEPOSA and second to the Chairman, Central Advisory Board were considered and rejected on 13.12.1993 by the Finance Minister.

(12) It is also quite clear that there has been a delay from 3.11.1993 to 16.12.1993 in consideration of the petitioner’s other two representations. Admittedly, there is no explanation for the delay in receiving the comments of the Sponsoring authority from 10.11.1993 to 2.12.1993. The learned counsel for the petitioner has submitted that only on the short ground of this unexplained delay, the detention order of the petitioner is liable to be quashed.

(13) The other submission of the learned counsel for the petitioner is that all three representations were sent by the petitioner in confirmity with the grounds of detention dated 28.7.1993 submitted to the petitioner in which it is mentioned that you have right to send representation to Govt. of India detaining authority and Advisory Board. The representation given to the Central Government was under Section 3(3) of the Cofeposa Act and Article 225 of (he Constitution of India. Second representation given to the Chairman, Central Advisory Board under section 83 of the Cofeposa Act and the representation to the President of India was given under Section 11 of the Cofeposa Act. These three representations were addressed to three different authorities and according to the settled law those concerned authorities ought to have separately disposed of all the three representations of the petitioner whereas two representations of the petitioner were decided by the Finance Ministry on the same date, which is quite contrary to the scheme of the Act. The entire purpose of sending representations to different authorities is totally defeated when they are disposed of by one authority at the same time.

(14) The intention of the legislature behind permitting the petitioner to make representation to different authorities is that each of the authorities may apply its mind seriously and separately regarding the detention of the detenue.

(15) In the instant case, representation sent to the detaining authority and to the Joint Secretary, Govt. of India were decided by the Finance Minister on 16.12.1.993. The representation sent on 3.1 1.1993 to the President of India under section 11(i) of Cofeposa has not been decided till this date. This is clearly born out from the additional affidavit of Mr. K.L. Verma dated 22.7.1994 submitted by the Govt. of India.

(16) Learned counsel appearing for the petitioner invited my attention to a Division Bench Judgment of this Court Vijaya Kumar Gujral Vs Union of India and others 1988 Crl.1,.11.1198 In this matter this Court had occasion to deal with case to ill most similar nature. In the said case, when an original order of detention is passed by an officer of the Central Govt. and the representation under Section 11(i) by the detenue, is also disposed of by the same officer acting in the Central Govt., the detenue shall be deprived of his right on making one of the two representations, i.e., the right to make representation under section 11(i) shall be lost to him. Thus, it appears to us that in such a case the representation under section 11(i)(b) must necessarily be there and dealt with and disposed of by an officer of the Central Govt. or in any case, an officer of the same rank duly empowered in that behalf other than the officer who made the declaration.”

(17) Learned counsel also invited attention of this Court to a judgment in the case of Sabir Ahmed Vs Union of India . In this case. Supreme Court has mentioned whether or not the detenue has under Section 11, a a legal right to make a representation to the Central Covt. or not is not the real question The nub of the matter is that whether the power conferred by Section 11 on the Central Govt. carried with it a duty to consider any representation made by the detenue expeditiously. The power under section 11 may either be exercised on information received by the Central Government from its own sources including that supplied under Section 3 by the State Covt.. or, from the detenue in the form of a petition or representation. Whether or not the Central Govt. on such petition/ representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. The duty is inherent in the very nature of the jurisdiction. The power under Section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Govt. If this statutory safeguard is to retain its meaning and efficacy, the Central Govt. must discharge its supervisory responsibility with constant vigilance and watchful care.

(18) Learned counsel also invited attention of this Court to the judgment of K.P. Abdul Khader & Kada Vs Union & Others, 1990 (2) Delhi Lawyer, 309. In this case this Court, while referring to a large number of decided cases has mentioned that rejection of the representation by the detaining authority has no relevance in so far as the consideration of representation made to Central Govt. under section 11 of the Act is concerned. The power of revocation conferred on the Central Govt. under Section 11 of the Act is independent of the power of confirming or setting aside the order of detention under Section 8(f) of the Act. In the present case, the Central Govt. has not fulfillled its obligation in considering the representation made to it under Section 11 of the Act. Accordinglv. the continued detention of the petitioner stands vitiated,

(19) Face of the instant case are also quite similar. The petitioner’s representation dated 3.11.1993. given to the President has not been disposed of till this dale. In view of this serious lapse on the part of Union of India, the petitioner’s detention order is liable to be quashed. Since the detention order is quashed on this ground, therefore, I do not think it necessary to deal with other submissions which have been advanced by the learned counsel for the petitioner during the course of hearing of this case. The impugned detention order passed in this case on 28.7.1993 passed by the joint Secretary, Govt. of India is quashed. The petitioner shall be released forthwith if he is not required to be detained in any other case.

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