RAKESH KUMAR GUPTA v. UNION OF INDIA — 1994 DIGILAW 799 (DEL)

Mr. Arun Kumar, J. ( 1 ) THIS writ petition challenges the order of detentiondated 23/03/1994 bearing No. F. No. 673/30/94-Cus. VIII, passed by Sh. Mahendra Prasad, Joint Secretary to the Govt. of India under section 3 (1) of theconservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (hereinafter referred to as the COREPOSA Act) by which the petitioner wasordered to be detained and kept in custody in Central Jail, Tihar, Delhi. ( 2 ). Briefly the facts are that the officers of the Enforcement Directorate, Delhizonal Office, intercepted a Maruti Car bearing registration No. DL-2c-F4598 and amaruti Van with registration No. DL-3c-E1822 at Sonauli Border while the said twovehicles were driving to cross over to Nepal alongwith their passengers. The searchof both the vehicles was conducted under Section 36 of Foreign Exchange Regulationact, 1973.-As a result of the search foreign exchange as per details given below wasrecovered arid seized. It was found concealed in the cavities of the vehicles. ( 3 ). Apart from the above seized foreign exchange certain incriminating documents were recovered and seized from the cavities of the said vehicles. As thevehicles were allegedly being used for illegal trafficking of foreign exchange, thesame were also seized by the officers of the Directorate. Statements of the passengersof the vehicles, namely, S/shri Naresh Bhardwaj Virender Chopra, Jaspal Singh,m. M. Sharma, Geeta Arora and Kumari Poonam Arora, under Section 39 of theforeign Exchange Regulation Act, 1973 were recorded. In view of some of thestatements recorded by the officers of the Directorate of Enforcement respectively,the premises of Praveen Kapur at 62, Sainik Vihar was searched on 22. 1. 94. 200 goldcoins 6. 5 lacs of Indian currency and certain documents were seized from there. Statement of Beena Kapur wife of Praveen Kapur was recorded. Statement of O. P. Gupta, father of the present petitioner was also recorded. ( 4 ). On 23/03/1994 order of detention was passed against the petitionerunder Section 3 (1) of the COFEPOSA Act by respondent No. 2 with a view to preventhim from acting in any manner prejudicial to the conservation of foreign exchange. According to the respondents as disclosed in the grounds of detention the petitionerwas also a passenger in one of the cars which were intercepted on 21. 1. 1994 and heslipped and ran away towards Nepal side of the border. Therefore, no statement ofthe petitioner was recorded. On 11. 6. According to the respondents as disclosed in the grounds of detention the petitionerwas also a passenger in one of the cars which were intercepted on 21. 1. 1994 and heslipped and ran away towards Nepal side of the border. Therefore, no statement ofthe petitioner was recorded. On 11. 6. 1994 the order of detention was served on thepetitioner by the police and he was taken in custody. On 15/06/1994 grounds ofdetention and list of relied upon documents containing the documents were servedon the petitioner. On 20/06/1994 reference was made to the Advisory Boardunder Section 8b of the COFEPOSA Act. ( 5 ). The petitioner has taken several grounds in the writ petition challenging thedetention order. However, the main emphasis at the time of hearing was on theground of non-supply of legible copies of relied upon documents to the petitioner. As already noted a list of relied upon documents alongwith photo copies of thedocuments was served on the petitioner on 15/06/1994. On 1. 7. 1994 a representation was sent by the petitioner to the Central Government whereby legible copiesof some of the relied upon documents were asked for. A copy of the saidrepresentation has been placed on record as Annx. X-II. As per para 4 of therepresentation the petitioner submitted that documents Nos. 2 and 98 of the Englishbunch of documents and documents Nos. 54 to 57,93,94,102,103,110,115,116, 121,123, 125 and 127 of the Hindi bunch of documents were absolutely illegible. Thepetitioner submitted that because of this the petitioner was unable to make aneffective and purposeful representation which was his fundamental right in view ofthe provisions of Art. 22 of the Constitution of India. ( 6 ). In this behalf it is to be noted that the impugned detention order itself makesthe petitioner aware of his right to make a representation in para 211 of the groundsof detention where it is stated as under:- "21. 4 You have a right to make representation to the Central Government,detaining Authority and Advisory Board. If you wish to make a representation against your detention to the Central Government (Secretary to thegovernment of India), Ministry of Finance, Department of Revenue/detaining Authority, you may do so by addressing it to the Secretary/joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Deptt. If you wish to make a representation against your detention to the Central Government (Secretary to thegovernment of India), Ministry of Finance, Department of Revenue/detaining Authority, you may do so by addressing it to the Secretary/joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Deptt. of Revenue,central Economic Intelligence Bureau, 6th floor, B Wing, Janpath Bhawan,janpath, New Delhi-110 001 and forward the same through the Superintendent of the Prison wherein you are detained. If you desire to make anyrepresentation to the Advisory Board, you may address it to the Chairman,central Advisory Board (COFEPOSA), High Court of Delhi, Sher Shah Road,new Delhi and forward the same through the Superintendent of the Prisonwherein you are detained. You are further informed that you shall be heard bythe Advisory Board in due course, if the Board considers it essential to do soor if you so desire. " ( 7 ). The petitioner has further averred that on 2/07/1994 the petitioner wasproduced before the Central Advisory Board (COFEPOSA ). He made a representation before the Advisory Board and reiterated his request of supply of documentsas per his representation dated 1/07/1994. The petitioner requested for anadjournment on this ground. A copy of the representation dated 2/07/1994made to the Advisory Board has also been placed on record as Annx. X-III. Themeeting of the Advisory Board was adjourned to 5/08/1994 in view of the representation of the petitioner regarding supply of legible copies of the documents. ( 8 ). The Central Government vide its order dated 29/07/1994 dealing withthe representation of the petitioner dated 1/07/1994 rejected the request of thepetitioner for revocation of the order of detention but the Sponsoring Authority wasdirected to supply again to the petitioner legible copies of the documents which wereillegible as per the petitioner s representation. Inspite of the said order of the Centralgovernment legible copies of the illegible documents were not supplied to thepetitioner even upto 5. 8. 1994 when the meeting of the Advisory Board was againfixed. On 5. 8. 1994 the petitioner again represented before the Advisory Board thatthe legible copies of the documents have not been supplied to him. The order of thecentral Government containing the direction to the Sponsoring Authority to supplylegible copies was also brought to the notice of the Advisory Board. The petitionerexpressed his handicap in the matter of making effective and purposeful representation in the absence of legible copies of relied upon documents. The order of thecentral Government containing the direction to the Sponsoring Authority to supplylegible copies was also brought to the notice of the Advisory Board. The petitionerexpressed his handicap in the matter of making effective and purposeful representation in the absence of legible copies of relied upon documents. However, theadvisory Board concluded the matter of hearing of the petitioner s case on 5. 8. 94. The legible copies of the documents were supplied to the petitioner only on 9. 8. 94. Thus it is obvious that the petitioner was deprived of his right to make an effectiverepresentation before the Advisory Board. ( 9 ). The learned Counsel for the respondents submitted that the copies of thedocuments initially supplied to the petitioner itself were all legible copies and thereis no substance in the plea of the petitioner that copies of certain relied upondocuments supplied to him were illegible. To examine this aspect my attention wasdrawn to some of the illegible documents photocopies whereof have been placed onrecord by the petitioner. In fact at the time of hearing learned Counsel for thepetitioner produced the photocopies which were actually supplied to the petitioneras relied upon documents. A bare look at most of the documents shows that theyare illegible. It is impossible to decipher some of the documents referred to by thepetitioner in this behalf. The purpose of ensuring supply of legible copies of reliedupon documents to a detenu is to enable him to exercise his fundamental rightsunder Art. 22 of the Constitution of India. Therefore, the requirement for supply ofcopies of relied upon documents is not a mere formality. When the Constitutionguarantees a right of representation to a detenu, it is natural that it should be ensuredthat the right can be effectively exercised and it is not reduced to a mere formality. Preventive detention means detention without trial and, therefore, certain safeguards have been laid down under Art. 22 for the detenu. We are a countrygoverned by the rule of law and Courts have to ensure that the executive performsits statutory functions in accordance with law and does not function in an arbitrarymanner. ( 10 ). Preventive detention means detention without trial and, therefore, certain safeguards have been laid down under Art. 22 for the detenu. We are a countrygoverned by the rule of law and Courts have to ensure that the executive performsits statutory functions in accordance with law and does not function in an arbitrarymanner. ( 10 ). In fact the adjournment granted by the Advisory Board on 2/07/1994in view of representation of the petitioner dated 1/07/1994 for supply of legiblecopy of the relied upon document shows that the Advisory Board was also of theview that the petitioner had been supplied illegible copies of relied upon documentswhich was frustrating the right of the petitioner to make a representation to theadvisory Board as also to the Central Government Ultimately as per the facts whichhave emerged the right of the petitioner to make a representation to the Advisoryboard has been totally denied in the present case. Till 5. 8. 1994 when the hearing ofthe Advisory Board concluded legible copies of relied upon documents had not beensupplied to the petitioner. It is not suggested on behalf of the respondents that thepetitioner ever waived the demand. The detenu has a right to make a representationbefore the Advisory Board as well as before the Central Government. In fact thepetitioner was made aware of this right by the communication containing thegrounds of detention, para 21 whereof has been quoted herein before. ( 11 ). Learned Counsel for the petitioner has brought to my notice severaljudgments of this Court on the aforesaid point where the detention was quashed onthe ground of denial of right to the detenu to make effective representation to theauthorities on account of lapse on the part of the Detaining Authority to ensure thatlegible copies of relied upon documents were supplied to the detenu. The point istoo obvious and well settled and, therefore, I need not cite all these judgments. ( 12 ). The result is that in the facts and circumstances of the case the continueddetention of the petitioner is vitiated and it is ordered that the petitioner be releasedforthwith unless otherwise required to be detained in connection with any othercase. For decades the law is settled that non-supply of legible copies of relied upondocuments to a detenu is violative of his fundamental rights under Art. 22 (5) of theconstitution of India and detentions have been quashed on this ground. For decades the law is settled that non-supply of legible copies of relied upondocuments to a detenu is violative of his fundamental rights under Art. 22 (5) of theconstitution of India and detentions have been quashed on this ground. I am painedto note that inspite of this clear legal position, the officers of the Government dealingwith such cases continue to violate the law. Whether a document is legible or not isnot an issue on which there is scope for two opinions. Preventive detention is sucha serious matter and still if the concerned officers continue to act in this illegalmanner, the inference is obvious. They are apparently doing this to help the detenusto get their detentions quashed. In the process they are defeating the laudable objectof the legislation and bringing the entire Government machnery to disrepute. It ishigh time that some serious thinking is given to this issue and responsibility is fixed. Action is called for against such erring officials. I am constrained to say this becausecase after case I find similar defaults on the part of the government officers handlingpreventive detention cases which result in detentions being quashed. A copy of the judgment be sent to the Supdt. Central Jail. Copies of thisjudgment be also sent to the Secretaries, Ministry of Finance (Department ofrevenue) and Ministry of Law, Justice and Company Affairs, Government of India. The petition is disposed of.