Debabrate Das vs Joint Secretary To The Govt. Of ...
1986 Latest Caselaw 232 Del

ORDER

M.K. Chawla, J.

1. Most of the facts relevant for the purpose of deciding the present petition are not in dispute. The detenu is the Managing Director of M/s. Sea Transportation Enterprises Pvt. Ltd. having its head office at Nariman Point, Bombay. The officers of the Directorate, of Revenue Intelligence, Bombay received a secret/reliable information that the petitioner is maintaining a secret account in London and Germany and a part of the commission earned by him is being credited in his accounts abroad. It also came to their knowledge that the petitioner has brought huge amount of foreign currency for selling the same in the local market. On the basis of the said information the residential as well as office premises of the petitioner were raided on 22-8-1985 and a number of documents and the foreign currency was taken into possession by means of four panchnamas. On the next day he was produced before the Magistrate and was released on bail on his furnishing a bond in the sum of Rs. 50,000/- which was subsequently confirmed. The statement of the detenu was recorded on 23rd Aug., 1985 and subsequently on 3/4 occasions. However, the department took sufficient time to arrive at a conclusion as to whether he be detained or not. Ultimately on 18-11-1985 the order of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (as amended) was passed but he was actually arrested and detained on 4-12-1985. Later on the matter was placed before the Advisory Board and the order of detention was confirmed.

2. The petitioner has now moved the present petition for the release of the detenu on the following amongst other grounds :

(a) that the documents recovered during the search of the residential/office premises of the detenu vide four panchnamas were not placed for the consideration of the detaining authority nor their copies were supplied to the detenu to enable him to make purposeful and effective representation against his purported detention order. The non-placing and non-consideration of the seized documents by the detaining authority will render the order of detention bad in law,

(b) that the alleged confessional statement of the detenu was retracted subsequently by him vide letter dated 28-10-1985 and this fact was also withheld by the department. This letter of retraction was the most vital, necessary, important and relevent document which, if placed before the detaining authority, would have influenced their mind one way or the other:

(c) that the correspondence exchanged between the petitioner and the enforcement Directorate and other officials of Finance Ministry were not placed before the detaining authority. The said correspondence fully explains that the remittance, if any, of the foreign exchange totalling over Rs. 69 lakhs was done through the normal Banking channels. This fact would also explain the circumstances under which a sum of 27,560 dollars was found in his possession at the time of his search.

3. The respondent department has filed the counter-affidavit. Even though their stand is that the documents taken into possession and the correspondence exchanged between him and the enforcement directorate authorities are not material, and for that reason they were not placed before the detaining authority as the order of detention, was passed on the basis of seizure of 27,560 dollars. It is also alleged that the letter dated 28-10-1985 was received from the Headquarters on 2541-1985 but as in the meantime the order of detention had already been passed on 18-11-1985 it was thought fit not to bring it to the notice of the detaining authority.

4. After hearing the learned Counsel for the parties at length and after going through the record carefully I am inclined to agree with submissions of the learned Counsel for the petitioner. The reasons are not far to seek. One has only to follow the dictum laid down by the Supreme Court in a case reported as Crl. Appeal No. 129/1986 : reported in 1986 Cri LJ 860, Sita Ram Somani v. State of Rajasthan) which relate to the non-production of the relevant/material documents before the detaining authority. Under similar circumstances the learned Judges of the Supreme Court while dealing with this aspect during the course of the judgment observed as under :-

It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA. That was not done and "there was, therefore, a clear non-application of mind by the detaining authority to relevant material. Unfortunately the High Court viewed it as a question of jurisdiction, that is to say that High Court thought that the detaining authority had jurisdiction to make the order of detention despite the retraction by the accused of his earlier confessional statement and the pendency of the criminal case against the appellant in which bail had been granted subject to conditions. No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, appellant would be entitled to be released. The counters to which we have referred seem to us to make it clear that relevant material was not placed before the detaining authority and, therefore, there was no occasion for the detaining authority to apply its mind to the relevant material. In the circumstances, the appellant is entitled to be released.

Reliance has also been placed on the judgments reported as Criminal Appeal No. 332/1985, Kurjibhai Dhanjibhai Patel v. State of Gujarat and Criminal Appeal No. 115/1986, Smt. Jayadevi Shantilal Jain v. Union of India.

5. Learned Counsel for the respondents has relied upon a judgment reported as P.C. Mehta v. Commr. and Secy. Govt. of Kerala, 1985 Supp SCC 144 : 1986 Cri LJ 786 and contended that the detaining authority has passed the order of detention on the basis of the seizure and there was no necessity for the department to have brought to their notice the letter of retraction, if any, made by the petitioner, in view of Section 5(a) of the COFEPOSA Act. This judgment is prima facie distinguishable from the facts of the present case.

6. In the case in hand not only the retraction letter but the material documents which could have thrown light on the matter one way or the other were not placed before the detaining authority. Otherwise it was just possible that the detaining authority might have arrived at a different conclusion if they had gone through those documents. Prima facie those documents explain the circumstances under which the detenu was found in possession of the foreign currency. The facts, of the present case fairly and squarely fall within the ambit of the judgments referred to and relied upon by the learned Counsel for the petitioner.

7. As a result of the above discussion I hereby accept the petition and set the petitioner at liberty forthwith, unless he is required in any other case.