Des Raj Malhotra vs Union Of India And Ors.
1989 Latest Caselaw 422 Del

JUDGMENT

R.L. Gupta, J.

(1) This petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeks quashing of the order of detention No. F. No. 673/154/89-Cus. Viii dated 7th April, 1989 passed by Sh. A. K. Batabyal, Joint Secretary to the Government or India, specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (COFEPOSA for short).

(2) On 5-5-1988, there was a search of the residential premises at 1-208, Ashok Vihar Phase-I, Delhi in occupation of one Shri B. K. Talwar in which along with other things particulars of the present detenu like his telephone number etc. were recovered. On that basis his premises E-144, Kamla Nagar, Delhi occupied by the petitioner was searched on 20-1-1989 resulting in the seizure of documents and foreign currency. Besides being prosecuted under various criminal provisions, the impugned order of detention was also passed against the petitioner.

(3) Although the detention has been challenged on a number of grounds but only one ground has been pressed before me and, therefore, only the relevant details in that respect are mentioned below.

(4) It is stated that vide his representation dated 19-5-S9, the petitioner had asked for certain documents referred to relied upon by the detaining Authority as mentioned in ground No. 5 i of the writ petition and those documents were supplied to the petitioner on 20-6-89, whereas the detention order was confirmed by the Central Government vide order dated 12-6-1989. Therefore, the respondent by not supplying the documents before the confirmation of the detention order rendered the order illegal and void. The documents asked for by the petitioner arc as follow :- (A)Documents placed before the detaining Authority which were considered by him but-were not relied upon to pass the impugned order of detection. (b) Copies of search warrants issued in respect of search of residential premises of Sh. B. K. Talwar. (e) Copy of search, warrants issued in respect of search of residential premises of the petitioner. (d) Complete set of documents recovered from the residential premises of Shri E. K. Talwar. (e) Complete set of documents recovered from the residential premises of the petitioner. (f) Arrest memorandum of Shri B. K. Talwar. (g) Copy of detention receipt dated 10th January, 1989 regarding Shri B. K. Talwar. (h) Copies of inquiries report made by the sponsoring authority after the arrest of the petitioner.

(5) In reply to the above allegations the stand of the respondents is that all the relied upon documents along with grounds of detest on were supplied to the petitioner on 21-4-1989. The petitioner in his representation dated 19-5-1989 asked for certain additional documents. His said representation dated 19-5-89 was reserved in the Cofeposa Unit of the Ministry on 24-5-89. The Advisory Board meeting in this case was also fixed for 24-5-89. The Sponsoring Authority sent their parawise com-meats on his said representation dated 19-5-89 on 30-5-89 through head office. The representation along with comments of the Sponsoring Authority were considered by the Central Government and the representation was rejected but the copies of additional documents were ordered to be supplied and memo was according'y issued on 6-6-89 by the Ministry. In pursuance of the order dated 6-6-89. additional documents were supplied to the petitioner on 20-6-89 under cover of letter dated 19-6-89 of Delhi Zonal Office of the Directorate of Enforcement addressed to the petitioner. It is further alleged that it is wrong and specifically denied that by not supplying the relied upon documents before the confirmation order. the detention order has been rendered illegal and void.

(6) I hive heard arguments advanced by learned counsel for the parties in respect of the above allegations.

(7) There is no denial about this fact that there was a search of the residential premises of B. K. Talwar and certain documents and other incriminatory articles were recovered from his premises including the particulars of the petitioner. It may further be noted ther it was only on the basis of the search of the residential premises of B. K. Talwar that the particulars of the present petitioner and his alleged activities come to the knowledge of the Customs officials. There is also specific reference to the search of the residential premises of B. K. Talwar in the grounds of detention. The existence of the search warrants of the house of B. K. Talwar and the petitioner etc. are not denied on behalf of the respondents. I am of the view that the non supply of these documents demanded by the petitioner before the date of confirmation of the order did cause prejudice to him and prevented him from making an effective representation to the detaining Authority, the Central Government and also the Advisory Board. The meeting of the Advisory Board took place on 24-5-89. There is no explanation as to in what circumstances the representation dated 19-5-1989 of the petitioner was received in the Cofeposa Unit of the Multistory after five days i.e. on 24-5-1989 on which date the Advisory Board had also met.

(8) A similar question arose before this Court in Parasmal Jain & Shanti Lal Jain Vs. Union of India and Others reported in 1989 (II) Crimes, 324(1). Santosh Duggal, J. in that case after discussing various authorities held on the point of noneupply of documents asked for by the detenu within a reasonable time and with due oespatch, particularly when these had been supplied after the representation was rejected and the detention order had been confirmed, that it was a case where the continued detention of the petitioner stood vitiated. The present case is absolutely identical.

(9) I, therefore, allow this petition and confirm the rule with the direction that the petitioner will be set at liberty forthwith if not required in any other case or proceedings.