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1997 DIGILAW 156 (KER)

Sultan Alibhai Sharieff v. Union Of India

1997-04-04

S.SANKARASUBBAN, U.P.SINGH

body1997
Judgment :- SANKARASUBBAN, J. This Original Petition is filed by Sultan Alibhai Sharieff, who is detained in the Central Prison, Trivandrum as per detention order dated 1-4-1996 issued by the Government of Kerala under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'the COFEPOSA Act'). Immediately after detention, the detenu was served with the grounds of detention. Petitioner filed a representation 15-5-1996 with regard to the grounds of detention. Copies of the representation were sent to the State Government, Chairman, COFEPOSA Advisory Board. Ernakulam and Additional Secretary to the Government of India, Ministry of Finance, New Delhi. 2. On 2-5-1996, the Government of India, Ministry of Finance, Department of Revenue issued the declaration under Section 9(1) of the COFEPOSA Act. Copy of the declaration is produced as Ext. P20. To Ext. P20, petitioner sent a representation dated 22-5-96. 3. The State Government rejected the representation dated 15-5-1996 by order dated 23-5-1996 and rejected the representation dated 22-5-1996 by order dated 25-5-1996. The Central Government rejected both the representations on 2-7-1996. The COFEPOSA Advisory Board by its opinion dated 31-5-1996 held that there was sufficient evidence for the detention of the petitioner under Section 3(1)(i) of the COFEPOSA Act and further continued detention under Section 9(1) of the COFEPOSA Act. The Government of Kerala passed order dated 18-6-1996 confirming the detention under Section 10 of the COFEPOSA Act, for a period of two years from 3-4-1996. 4. Even though many grounds were taken in the Original Petition challenging the detention order under Section 3(1)(i) and declaration under Section 9 of the COFEPOSA Act, Shri. B. Kumar, learned counsel appearing for the petitioner pressed only one ground challenging the declaration under Section 9(1) of the COFEPOSA Act. Hence, we are considering only that ground. 5. Ext. P21 is the copy of the declaration issued under Section 9(1) of the COFEPOSA Act. The declaration order was passed after carefully considering the ground of detention, the materials served on the detenu and the additional document annexed therewith. As already stated the petitioner filed a representation against the order of declaration. In Paragraph 3(iii) of the representation, it is stated thus : "No documents were supplied to the detenu. Hence non-supply of material documents is fatal. Regarding the same matter, the petitioner has stated in Ground Nos. As already stated the petitioner filed a representation against the order of declaration. In Paragraph 3(iii) of the representation, it is stated thus : "No documents were supplied to the detenu. Hence non-supply of material documents is fatal. Regarding the same matter, the petitioner has stated in Ground Nos. xix and xx as follows : "(xix) The petitioner says and submits that the impugned declaration issued under Section 9(1) of the COFEPOSA Act is mala fide, null and void on the same grounds on which the impugned order of detention is challenged herein as mala fide, null and void. (xx) The petitioner says and submits that in the said declaration, it is averred by the declaring authority that he had considered the grounds of detention and the material served on the detenu and the "additional document annexed herewith". The petitioner respectfully says and submits that it is therefore, enjoined upon the declaring authority to satisfactorily establish before this Hon'ble Court as to whether the said "additional document" mentioned in the said declaration was in fact served on him and if so, furnish a copy of the same, in as much as, subject to correction, the said declaration only was served on him without any "additional document". The petitioner says and submits that if the said "additional document" was not so served on him along with the said declaration, then in that case, the impugned declaration, in law, is violative of both the facets of Article 22(5) of the Constitution of India and is accordingly rendered mala fide, null and void". 6. In paragraph 29 of the counter affidavit filed on behalf of the State Government, it is stated as follows : "The wording 'additional documents' as stated in the declaration is usual. It is submitted that no additional documents have originated in this case at the time of the Section 9(1) proposal". Even though three counter affidavits were filed on behalf of the Union of India, the first two counter affidavits did not refer to this aspect. In the counter affidavit dated 29-11-1996, it is stated that the additional document considered was copy of the retraction petition dated 20-2-1996. It also did not state whether the document was served on the petitioner. On a perusal of the file, we find that there is an intimation to the Commissioner of Customs, Cochin along with the order of declaration. In the counter affidavit dated 29-11-1996, it is stated that the additional document considered was copy of the retraction petition dated 20-2-1996. It also did not state whether the document was served on the petitioner. On a perusal of the file, we find that there is an intimation to the Commissioner of Customs, Cochin along with the order of declaration. It is as follows : "He is requested to ensure that the contents of the declaration are correct in all respects. He is also requested to arrange for a free translation of the declaration and the additional documents, if any, in the language known to the detenu and thereafter forthwith arrange to handover two copies of the declaration accompanied by free translation of the declaration and the additional documents, if any, in the language known to the detenu, to the officer-in-charge of the jail (where the detenu is kept) so that he may hand over one copy along with the translation to the detenu immediately and return the other copy to the undersigned with detenu's dated acknowledgment along with the translation of documents described above". Then we requested the Senior Central Government Standing Counsel to get instructions from the Collector of Customs as to whether any additional document was served on the petitioner. On instruction, Shri. Tharakan, Senior Central Government Standing Counsel submitted that no additional document was served on the petitioner. Thus it is now proved that the additional document mentioned in Ext. P. 21 was not served on the petitioner. The retraction petition is not among the document relied on in the grounds of detention. 7. Article 22(5) of the Constitution of India gives a right of representation to the detenu against the order of detention. The detenu's right to make representation includes his right to receive copies of the statements and documents which are referred to in the grounds of detention expeditiously, Ramachandra v. Union of India, AIR 1980 SC 765. 8. In Abdul v. Union of India, AIR 1991 SC 336 : (1991 Cri LJ 430) and Ahmedkutty v. Union of India, 1990 (2) SCC 1 the Supreme Court held that where certain documents were considered by the detaining authority or should have considered as vital materials, non-supply of them would vitiate the order of detention. 9. The declaration under Section 9 of the COFEPOSA Act results in serious consequences to the detenu. 9. The declaration under Section 9 of the COFEPOSA Act results in serious consequences to the detenu. Among other things the declaration contains a decision regarding the adverse subjective satisfaction which is the basis for extending the detention up to two years. 10. The opportunity to give representation must be effective. It should not be an empty formality. Unless the detenu is informed about the document considered by the authority, the detenu will not be able to make an effective representation. It was submitted on behalf of the Union of India that the additional document was the retraction petition of the detenu and hence no prejudice was caused to the latter by the non-service of the additional document. We do not agree. If the detenu would have been informed that the additional document was his own retraction petition, then he could have possibly explained the reason why on the basis of the document the declaration should not be made. This opportunity was lost to the detenu. 11. In the result, we quash the declaration issued by the Government of India under Section 9(1) of the COFEPOSA Act passed against the petitioner on 2-5-1996. Consequently, the confirmation order confirming the detention of the petitioner for two years is quashed. We further declare that the detention order of the petitioner is valid only for one year from the date of the detention of the petitioner. Petitioner shall be released on the completion of one year of detention, if he is not required in any other case. Order accordingly.