Toriyli Alias Jabbar vs Union Of India
1992 Latest Caselaw 503 Del

ORDER

1. toriyli alias Jabbar, the petitioner herein was detained in pursuance to an order passed on 6th November, 1991 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as the 'COFEPOSA Act') by one Shri Sikander Khan, Joint Secretary to the Government of India. The detention order was passed with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange in future. Along with the detention order, the grounds of detention were also supplied to the petitioner.

2. The facts which led to the passing of the detention order dated 6th November, 1991 are that on 3rd October, 1991, the residential premises bearing No. 5320, Gali Yakub Wali, Kuchha Rehman, Chandni Chowk, Delhi was searched by the officers of the Enforcement Directorate and in the said premises six persons were found present. On search being conducted, some foreign exchange and documents were seized. Statement of 8 persons were recorded under section 40 of the Foreign Exchange Regulation Act. Statement of the petitioner under Section 40 was also recorded which was signed by him. Pursuant to that search, the petitioner along with two Afghan nationals and Shri Vipin Rajput, Shri Vipin Kumar and Shri Ashok Kumar were arrested. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody on 4th October, 1991.

3. The petitioner was still confined in the judicial custody when the present detention order under section 3(1) of the COFEPOSA Act was passed and served on him on 16th November, 1991. In the grounds of detention, the petitioner was also made aware that if he so wished, he could make a representation against his detention to the Central Government (Secretary to the Government of India, Ministry of Finance, Department of Revenue, Delhi) as well as to the Advisory Board. He was also made aware that he could be heard by the Advisory Board in due course if the board considers it essential to do so. He was also supplied the documents relied upon by the respondent. The petitioner was also made aware through a communication served on him in Jail on 18th November, 1991 that a reference has been made to the Advisory Board for opinion under sub-section (c) of Section 8.

4. The detention order has been assailed inter alia on the ground that the documents which were asked by the petitioner vide his representation dated 29th November, 1991 have not been supplied by the respondent. In fact the respondent never applied its mind to the representation of the petitioner. That the petitioner had asked for the documents and the information so that he could make an effective and purposeful representation before the Advisory Board as well as before the Central Government, because of the non-compliance of the statutory provision the detention is illegal and bad in law as it violates Article 22 of the Constitution of India. He further urged that the petitioner vide his representation dated 12th December, 1991 had asked the Advisory Board to allow him to examine the witnesses in rebuttal of the allegations made against him but the Advisory Board deprived him this valuable right. Coupled with this ground Mr. Malhotra took up the ground that the order passed by the detaining authority was influenced by the opinion of the Advisory Board. The petitioner was served with the communication in Jail dated 18-11-1991 whereby he was informed that a reference has been made to the Advisory Board for opinion under sub-sec. (c) of Section 8. That communication dated 18-11-1991 was served on the petitioner only after two days of service of grounds of detention thereby depriving the petitioner enough time to make the effective representation before the said reference was made. This means he was not given proper opportunity of making an effective and purposeful representation to the detaining authority as well as to the Central Government because the reference was made just after two days of the service of grounds of detention and hence the detention is illegal and bad in law.

5. I have heard Mr. Naveen Malhotra, counsel for the petitioner and Mr. B. P. Aggarwal counsel for Union of India. So far as the last ground taken by Mr. Malhotra is concerned that is the influencing of the decision of the detaining authority on account of confirmation order, I find no merits in the same. The Supreme Court in the case of Abdulla Kunhi and Abdul Khader K. M. v. Union of India, reported in 1991 (52) ELT 321 : (1991 Cri LJ 750 (SC) held that the consideration of the representation by the Government subsequent to confirmation of detention will not invalidate such confirmation when representation by the Government has been considered independently without any delay. The contention of Mr. Malhotra that in the above said case, the Supreme Court was not concerned with the proposition that the rejection of the representation after the confirmation of detention was not an independent consideration and, therefore, that decision of the Supreme Court is distinguishable. This argument of Mr. Malhotra has no merits in view of the facts of this case. In the counter-affidavit filed by the Joint Secretary to the Government of India the respondent has categorically stated that the ground of detention along with the relied upon documents were served on the petitioner on 16th November, 1991. Reference was made by the Ministry to the Advisory Board on 18th November, 1991. Thus there was sufficient time to make the representation to the concerned authority as the Advisory Board was to meet on 13th December, 1991. The reference made to the Advisory Board is an intimation only that this case has been forwarded to the Board for consideration. Moreover, the rejection of the representation of the petitioner was an independent act and was not based on the consideration of the confirmation order. Since the confirmation order was issued after considering the information as such it was not considered necessary by the Central Government to issue separate memo. In view of these facts having come on record, it cannot be held that the confirmation and the representation were not considered independently by the Government. Further, I find no delay in the consideration of the representation of the petitioner. Mr. Mahendra Prasad, Joint Secretary, has testified that representation of the petitioner dated 28th November, 1990 was received in the COFEPOSA unit of the Ministry on 5th December, 1991. On the same day it was placed before the detaining authority who in turn asked for the comments and also English Version of the representation from the sponsoring authority. Sponsoring Authority which received the said letter of the detaining authority on 13th November, 1991 submitted the comments on 18th December, 1991. The case was processed by the Joint Secretary to the Government of India, Department of Revenue on 23rd December, 1991 and submitted the same to the Director General (EIB) and Chairman (CBDT) on 24th December, 1991 who in turn forwarded the same to the Minister of State (Revenue) for consideration and the said State Minister forwarded the same to the Finance Minister on 27th November, 1991. Finance Minister after considering the said representation rejected the same on 31st December, 1991 which was communicated to the petitioner on 2nd January, 1992. The perusal of these facts would show that there is no delay in disposing the representation of the petitioner by the authority concerned. Mr. Malhotra's contention that there is no explanation in the counter-affidavit for eight days which were consumed between 5th December, to 13th December, 1991, to my mind, this has been properly explained in the counter-affidavit. It is stated that comments were called and also the English translation of the representation which was admittedly in 'URDU' in this case. Therefore, it must have taken some time to translate the same and also to collect the comments. Thereafter, Mr. Malhotra's contention that it took seven days time for the sponsoring authority to send the comments that is not so. In fact the affidavit clearly indicates that it took only five days for the sponsoring authority to submit the comments vide letter dated 18th December, 1991 though the same was received in the Ministry on 20th December, 1991. This four to five days time, to my mind, cannot be called unnecessary delay. Therefore, when there is no delay and the decision has been taken independently then it cannot be said that the detention is bad in law because the representation was considered and the confirmation order was passed also by the Central Government on the same day. Relying on the decision of the Supreme Court quoted above, it can be said that the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity with the power under the statute. As long as Government without delay considered the representation with an unbiased mind, there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the conformation of detention. There is no constitutional mandate under Clause 5 of Article 22 much less any statutory requirement to consider the representation before confirming the order of detention. The confirmation cannot be invalidated subsequent to conformation of the detention or on the same day. In view of the law laid down by the Supreme Court and taking into consideration the facts of this case I find no merits in this argument of Mr. Malhotra.

6. Now only argument which left to be considered is whether the document called for and information sought in his letter dated 28th November, 1991 were supplied to him or not. It had all along been the case of the petitioner that he asked for the documents and the information in order to make a useful and purposeful representation, but have not till date been supplied. This fact is mentioned in para 4 of the petition. In reply to this para in the counter-affidavit the factum of demand of documents and the information has not been refuted nor the fact that these documents have not been till date denied in the counter-affidavit. Para 4 of the counter-affidavit does not touch at all the question of supply of these documents to the petitioner, rather in para 13 of the counter-affidavit a plea has been taken by the respondent that it was not necessary that all the documents relied upon by the detaining authority in arriving at the subjective satisfaction of the detention should be described in the ground of detention or be supplied to the petitioner. It has been admitted in reply to ground G in the counter-affidavit that only chosen documents which were considered by the detaining authority necessary were supplied to the petitioner. All the documents which were placed before the detaining authority were not supplied. The Supreme Court in umpteen number of cases has held that all those documents which are relied by the detaining authorities should be supplied to the detenu. In this case as per respondent's own admission all the documents relied upon were not supplied. It clearly indicate violation of principle of natural justice on the part of the respondent. Moreover, the additional documents per memorandum dated 2nd January, 1992 have also not been supplied by the sponsoring authority nor any reason has been assigned for not sending the same. The contention of the petitioner that the documents asked for have not been supplied till date has not been refuted by the respondent nor any documentary evidence has been placed on record to prove that these documents were supplied or these documents could not be supplied for any reason. Since the documents asked for have not been supplied to the petitioner in spite of the demand, which according to the petitioner were relevant for making effective representation, to my mind, this act of the respondent renders the detention illegal and bad in law. It has been held by the Supreme Court that the non-supply of document asked by the petitioner results in miscarriage of justice because of depriving him of the excess of those documents the petitioner is made incapable of making an effective representation to present his case provided under Article 22(5) of the Constitution of India. In view of this fact that the petitioner has been deprived of making effective and purposeful representation because of non supply of the documents, I am of the considered view that the detention is illegal and bad in law.

7. With these observations I allow the writ petition and make the rule absolute and declare the detention bad in law and the continuous detention illegal and order that the petitioner be set at liberty forthwith if not required to be detained in any other case.

8. Petition allowed.