Navin Kumar Kapoor vs The Administrator, Union ...
1989 Latest Caselaw 433 Del

JUDGMENT

Leila Seth, J.

(1) (ORAL) (Rule D.B.). The petitioner has challenged the detention order dated 21st April 1989 passed by the Administrator, Union Territory of Delhi, under Section 3(1) read with Section 2(7) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

(2) The main ground of challenge to the sail order is that the replies dated 27th March, 1989 and 3rd April, 1989 to the show cause notice were not placed by the sponsoring authority before the detaining authority and consequently could not be. considered by the detaining authority before arriving at its subjective satisfaction and passing the detention order.

(3) An affidavit in reply to the petition has been filed by Mr. A. S. Dagar, Deputy Secretary (Home), Delhi Administration, affirmed on 3rd July, 1989. In the said affidavit, the respondent has stated that the petitioner's replies dated 7th February, 1989, 1st March, 1989, 10th March, 1989 and 13th March, 1989 were duly considered by the Administrator at the time of passing of the detention order. The averment in paragraph 7 of the petition pertaining to the non-consideration and non-placement of the replies dated 27th March, 1989 and 3rd April, 1989 have not been controverter except that it has been stated that these were not relevant "and were not considered by the detaining authority" as they "were not furnished by the sponsoring authority".

(4) In the rejoinder affidavit filed by the petitioner, die pleas taken in the petition have been reiterated and it is asserted that the said communications were vital, important and relevant. Copies of all the six replies are on record.

(5) We have perused the said replies. The first four replies basically deal with inspection and production of documents. The replies dated 27th March, 1989 and 3rd April, 1989, apart from requesting for inspection and supply of documents also deal with the matter on merits. In paragraph 4 of the reply dated 27th March, 1989, it is asserted as follows: "IT is respectfully submitted that the charge against the notice in the show cause notice is violation of Section 13(2) r/w Section 67 of the Fera, 1973, on the allegation of attempt to export "Foreign Currency" out of India. It is submitted that the charge is unsustainable at the very face of it because, it is understood, that the impugned travellers cheques had ceased to be "Foreign Currency" inasmuch as these were duty discharged and endorsed at the back and are drawn in foreign exchange outside India and are payable in foreign exchange outside India, as per the endorsement. A traveller cheque for the purposes of "foreign exchange" is one which is "expressed or drawn" in Indian currency but payable in any foreign currency [Section 2(h) of the FERA. 1973]".

(6) In paragraphs 2 & 3 of the reply dated 3rd April 1989, the matter has again been dealt with on merits.

(7) In Kurjibhai Dhanjibhai Patel v. State of Gujarat and others, (1985) I Scale 964, (1) the Supreme Court has held that the subjective satisfaction of the detaining authority is vitiated if the relevant material is not placed before it by the sponsoring authority.

(8) Tulzapurkar, J., speaking for the Court noticed that admittedly neither the show cause notice nor the detenu's reply was forwarded by the sponsoring authority (The Customs) to the detaining authority which ultimately passed the detention order. The Court opined that it cannot be disputed that the show cause notice and the detenu's reply thereto, particularly the latter, though these documents formed part of adjudication proceedings constituted the most relevant material which was essential to be placed before the detaining authority before the issuance of the impugned order. The Court then went on to observe that the relevant material, namely, the detenu's reply dated 5th March, 1984 "Certainly had a bearing and would have influenced the subjective satisfaction of the detaining authority one way or the other before issuing the detention order and such relevant material" not having been ''placed by the sponsoring authority before the detaining authority at the appropriate time" would vitiate the subjective satisfaction of the detaining authority.

(9) As above noticed, the Supreme Court was already of the view that the reply to the show cause notice was relevant material and ought to have been placed before the detaining authority. In the present case, as above indicated, admittedly the two replies dated 27th March, 1989 and 3rd April, 1989 (apart from seeking production of documents also dealt with the matter on merit) were not placed by the sponsoring authority before the detaining authority. They are relevant documents and their non-placement before the detaining authority vitiates the impugned order.

(10) Counsel for the respondent, however, contends that since Navin Kumar Kapoor, the person against whom the detention order has been passed, has not been served nor has he surrendered, the matter is premature and consequently the petitioner cannot ask for the impugned order to be quashed.

(11) It is, no doubt, correct that the impugned detention order has not yet been executed. But, the present petition is not for a writ of habeas corpus but for a mandamus/certiorari to quash the impugned order. Further, the contention raised by learned counsel for the respondent has already been decided by a Bench of this Court. In Ram Kishore Gupta v. Administrator. Union Territory of Delhi. Criminal Writ Petition No. 169/88 (decided on 25th May. 1988), (2) Talwar, J., speaking for the Court, placed reliance on a decision of the Bombay High Court in Hira Lal Somabhai Damania v. Dr. Gopal Singh and others, 1988 (1) Crimes 857, (3) and held that the petition is maintainable. The quotation from the judgment of the Bombay High Court on this aspect is relevant : "WE may point out that the Cofeposa Act is a preventive piece of legislation which affects the fundamental right of liberty of a citizen. When fundamental rights, specially the fundamental right to liberty, are involved, it is manifest that there should be no bounds for the exercise by the High Court of its extra-ordinary jurisdiction under Article 226 of the Constitution in order to protect and safeguard those fundamental rights guaranteed by the Constitution. Of course, a writ of habeas corpus cannot be entertained unless and until a person surrenders to the concerned authorities and is already under detention. But the power of the Court to examine and to adjudicate in the question of the legality of an order which affects the liberty of a citizen, cannot be limited by the fact that the prospective. detenu has not surrendered to the concerned authorities or that the detention order was not served on him."

(12) It was, therefore, .held that a writ of mandamus/certiorari can issue in such a case.

(13) The position in the present case is similar and The question of law is settled that the court has power to examine the question of the legality of the detention order even before the prospective detenu has surrendered -and/or the order has been executed.

(14) For the reasons outlined above, we quash the impugned order.

(15) Before parting with the case, we would like to record our unhappiness about the fact, that the detention order has had to be quashed because the sponsoring authority did not take due care to furnish and place the relevant material before the detaining authority which was admittedly in its possession some time before the making of the detention order on 21st April, 1989. This is even more unfortunate because the above mentioned judgment of the Supreme Court, passed as far back as on 16th April, 1985, is clear and the respondent must[should have been aware of it.

(16) Consequently, we have no option but to quash the order even though the detenu might really be involved in illicit activity, as the procedural safeguards have not been observed. The result is that the present petition is allowed and the impugned detention order is quashed.