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Gobind Ram and Another Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Nos. 127 and 128 of 1984
Judge
Reported in1986(23)ELT353(Del)
Acts Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1) and 8; Constitution of India - Articles 22(5) and 226
AppellantGobind Ram and Another
RespondentUnion of India and Others
Cases ReferredKirit Kumar Chamanlal Kundaliaya v. Union of India and
Excerpt:
customs - detention - sections 3 (1) and 8 of conservation of foreign exchange and prevention of smuggling activities act, 1974 and article 22 (5) of constitution of india - validity of detention - petitioner detained under section 3 (1) - all documents to defend himself not provided by authority - violation of right guaranteed under section 8 and article 22 - detention order quashed. - - 8. during the hearing on january 3, 1985, a very interesting situation arose......the detention has been challenged on diverse grounds, including the contentions, (a) that various documents referred to, mentioned or relied upon in the grounds of detention have not been supplied to the petitioner despite request, resulting in an effective opportunity to make a representation against the detention being denied to him; (b) illegible copies were supplied along with the grounds of detention of various documents relied upon in the grounds of detention; (c) there was non-application of mind by the detaining authority as most of the documents and the account were in the urdu script which was a script with which the detaining authority was not familiar; (d) there was undue delay in passing the order of detention inasmuch as the investigations in regard to the alleged.....
Judgment:

Prakash Narain, C.J.

1. The petitioner has been detained with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange by virtue of an order dated June 28, 1984, passed under the signatures of an Additional Secretary to the Government of India, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the Act. The grounds of detention dated June 28, 1984 were served on him.

2. The detention has been challenged on diverse grounds, including the contentions, (a) that various documents referred to, mentioned or relied upon in the grounds of detention have not been supplied to the petitioner despite request, resulting in an effective opportunity to make a representation against the detention being denied to him; (b) illegible copies were supplied along with the grounds of detention of various documents relied upon in the grounds of detention; (c) there was non-application of mind by the detaining authority as most of the documents and the account were in the Urdu script which was a script with which the detaining authority was not familiar; (d) there was undue delay in passing the order of detention inasmuch as the investigations in regard to the alleged violations of the Foreign Exchange Regulations Act had concluded by January 21, 1984; and (e) vital and material facts and circumstances were kept back from the detaining authority with the result that the detention order has been passed in ignorance of relevant circumstances of an facts.

3. As noticed earlier, the petitioner was detained by virtue of the aforesaid order of detention. On July 27, 1984 he made a representation through his counsel asking for legible copies of documents already supplied to him and also for supply of other documents mentioned, referred to or even casually referred to in the grounds of detention. This request was summarily rejected by the detaining authority by an order of July 18, 1984 which gives no reason why the documents could not be supplied as asked for. Another representation was made by the petitioner on August 6, 1984 to the same effect. A representation, reiterating the earlier request, was made to Advisory Board on August 22, 1984 but with no result. The detention of the petitioner having been confirmed by the Central Government, he had no option but to move this Court for a writ of habeas corpus under Article 226 of the Constitution of India. Mr. Harjinder Singh, learned counsel for the petitioner, has strongly urged the points already noticed above.

4. By way of return, an affidavit of Shri M. N. V. Rao, Additional Secretary to the Government of India (Anti-Smuggling) Ministry of Finance, Department of Revenue, New Delhi was filed in this Court. During the course of the hearing, another affidavit sworn by Shri M. V. N. Rao, on January 5, 1985 has also been filed. The contentions of the petitioners have been traversed and it has been urged that there is no infirmity, as alleged, in passing of the order of detention or in continuing the detention by virtue of the said order.

5. In the view that we are going to take, it is not necessary to dilate upon all the points urged by the petitioner. In our view, the detention has to be quashed on the short ground of the petitioner having been denied his statutory right of making an effective representation, as postulated by Section 8 of the Act and as ordained by Article 22(5) of the Constitution.

6. The petitioner has asked for documents referred to in the 'Panchnamas' copies whereof were supplied to the petitioner along with the grounds of detention. These 'Panchanamas' are in regard to documents seized from premises in occupation of Sarvshri Gobind Ram and Sadhu Ram, business premises of M/s Al. Kabir Trading Co., residential premises of Manohar Lal in Greater Kailash, and residential premises of S. Prakash in East Patel Nagar. There is another 'Panchanama' dated December 14, 1983 regarding search of residence of Nand Kishore Kapoor residing at E-86 Greater Kailash, Part II and 'Panchnama' dated February 3, 1984 relating to search of business premises of M/s. Nivedita Enterprises and residential premises of Narinder Kumar. Panchnamas were also drawn upon in search of premises of M/s. Radhey Sham Sohan Lal, residential premises of Sohan Lal, business premises of Vishwanath Sathis Kumar and the residential premises of Vishwanath Kapoor.

7. Admittedly, some of the documents mentioned in the Panchanamas were not supplied. Mr. Harjinder Singh, learned counsel for the petitioner, has urged that it was obligatory on the part of the detaining authority to have supplied these documents if not along with the grounds of detention, at least on demand. Mr. R. M. Bagai, learned counsel for the respondents, on the other hand, has contended that since these documents were not relied upon for purposes of passing the order of detention, they would be irrelevant and the detaining authority rightly did not supply the same on demand being made by the petitioner.

8. During the hearing on January 3, 1985, a very interesting situation arose. Learned counsel for the respondents has urged that since some of the documents asked for were not relied upon for passing of the detention order and were not even referred to in the grounds of detention, there was no obligation to supply the said documents even if demanded by the detenu. The point that arose was whether these documents had at all been placed before the detaining authority. If the same had been placed before the detaining authority, then it must be assumed that he had considered them and so, these had to be supplied along with the grounds of detention, whether relied upon or not relied upon for purposes of passing of the detention order. If these were not placed before the detaining authority or not seen by him, it could be said that relevant material had been withheld from the detaining authority or had not been considered by him and so, the satisfaction was likely to be vitiated. Paragraph 18 of the grounds of detention reads as under :-

'18. While passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the material contained in the statements and documents mentioned in the enclosed list. A copy of the said grounds and copies of statements and documents are also enclosed.'

The list shows the 'Panchanamas' already referred to earlier. It also refers to certain documents. It would have indeed been very strange if the detaining authority had merely seen the Panchanama and not the documents mentioned therein to arrive at the subjective satisfaction as to whether the person should be detained or not. Had that been so, we would have had no doubt in saying that the detaining authority had not applied its mind to all the relevant material. Fortunately it is not so, as is apparent by the second affidavit of Shri Rao, sworn on January 5, 1985. In this affidavit, Shri Rao deposes that the documents seized by the Enforcement Directorate from the various premises delineated therein were produced before him and the same were seen by him. He found the said documents to be irrelevant and as such ignored the same while passing the detention order. These documents are the ones that are mentioned in the 'Panchnamas' adverted to earlier. In short, thereforee, the position today is, the detaining authority did consider the documents mentioned in the 'Panchnamas'. Whether he based the detention order on those documents or not, is not in issue. The documents were material which was considered for passing the impugned detention order. If that be so, these documents had to be supplied to the petitioner when asked by him even if the documents have not been relied upon for passing the detention order. These documents were in the possession of the sponsoring authority, and, thereforee, available to the detaining authority. The law on this point is settled. If asked for, the documents had to be supplied to the detenu to enable him to make an effective representation. It could be said that the detaining authority was not bound to supply these documents along with the grounds of detention because he had not relied upon them. He could not, however, deny these documents to the petitioner once he asked for them.

9. Mr. Bagai invited our attention to a judgment of the Bombay High Court in Tejpal K. Mandot v. The Asstt. Secretary, Government of Maharashtra 1983 Maharashtra Law Journal 47. This case does not help the contention raised by learned counsel for the respondents. The point in issue before the Beach of the Bombay High Court was whether it was mandatory to supply the copies of the documents mentioned in the Panchnamas along with the grounds of detention. The point as to whether these documents should be supplied, if asked for, was not considered by the Bombay High Court. Mr. Bagai also referred to Kirit Kumar Chamanlal Kundaliaya v. Union of India and others : [1981]2SCR718 of this judgment reads as under :-

'We not come to the merits of the cases. So far as the writ petition filed in the High Court is concerned the only point taken was that two documents referred to in the order of detention were not supplied to the detenu. The High Court rejected this contention on the ground that the documents were merely referred to and not relied on by the detaining authority and after having examined the documents it found that the same were not relevant. With due respect to the Judge we are unable to agree with the view taken by them. In the first place, it was not open to the Court to have waded through the confidential file of the Government in order to fish out a point against the detenu. Secondly, the question of relevance was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected. As the reasoning of the High Court was legally erroneous the order of the High Court cannot be allowed to stand and is hereby quashed.'

From the above observations made in this paragraph, learned counsel wants to find support for his contention that it was for the detaining authority to decide whether the documents were relevant or not relevant for purpose of Article 22(5) of the Constitution. We read no such rule as having been laid down by the Supreme Court. The observations that the detaining authority had to decide the relevancy was made in the context of the reasonable opportunity contemplated by Article 22(5) of the Constitution.

10. The result is that we quash the detention of the petitioner, Gobind Ram, and direct that he be set at liberty forthwith unless required to be detained by virtue of any valid order or detention or any order of a Court.


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