Ashok Kumar vs Union Of India - 1988 Supreme(SC) 82

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(SC) 82

SUPREME COURT OF INDIA
(BEFORE G.L. OZA AND B.C. RAY, JJ.)
ASHOK KUMAR
Versus
UNION OF INDIA AND OTHERS
Criminal Appeal No. 54 of 1988{From the Judgment and Order dated October 9, 1987 of the Delhi High Court in Crl. W.P. No. 262 of 1987}[Arising out of Special Leave Petition (Cri) No. 2798 of 1987], decided on January 27, 1988
Advocates appeared
Soli J. Sorabjee, Senior Advocate (Hukum Chand, Mrs Nisha Bachi, Vijay K. Verma, Advocates, with him), for the Appellant;
B. Datta, Additional Solicitor General (P. Parmeswaran, Ashok K. Srivastava, A. Subba Rao and C. V. Subba Rao, Advocates, with him), for the Respondents.

Advocates:
A.K.SRIVASTAVA, A.SUBBA RAO, B.DUTTA, C.V.SUBBA RAO, HUKAM CHAND, NISHA BAGCHI, P.P.Rao, SOLI J.SORABJI, VIJAY VERMA

Headnote:
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Section 3(3) - Foreign Exchange Regulation Act, 1973 - Section 37 - Constitution of India - Article 22(5) - Article 22(6) - Foreign Currency – Smuggled Gold - Detained From Residence - Order of Detention - Appellant was arrested and detained from his residence by an order of detention made with a view to prevent him from acting in any manner prejudicial to augmentation of foreign currency and also with a view to prevent him from engaging and keeping smuggled, gold – Held, Foreign currency i.e. US dollars as well as primary gold which were found out on search from house in cannot be connected with appellant as he had specifically stated in his representation that he is not owner of said house - It has also been submitted in this connection that in spite of specific objection taken by appellant in his representation, no attempt was made on behalf of Detaining Authority to ascertain who is owner of said house - Non-supply of documents had greatly handicapped appellant in making an effective representation against grounds of detention served on him - Manoj Kumar were present at time of search and appellant subsequently fled away go to show that house from where foreign currency and primary gold were recovered belonged to appellant - It has been held that right to be supplied the copies of the documents, statements and other materials relied upon in grounds of detention without any undue delay flows directly as a necessary corollary from rights conferred on detenu to be afforded earliest opportunity of making a representation against detention, because unless former right is available, latter cannot be meaningfully exercised - It has been further held that it is necessary for valid continuance of detention that subject to Article 22(6) copies of documents, statements and other materials relied upon in grounds of detention should be furnished to detenu along with grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from date of detention - There are no exceptions or qualifications provided to this rule and if this requirement of Article 22(5) read with Section 3(3) of COFEPOSA Act is not satisfied, continued detention of detenu would be illegal and void – Court direct government to release appellant from jail forthwith – Appeal Allowed.

Judgment

RAY, J.-Special leave granted. Arguments heard.

2. This appeal by special leave is directed against the judgment and order dated October 9, 1987 passed by the High Court of Delhi in Criminal Writ Petition No. 262 of 1987 discharging the rule and rejecting the writ petition.

3. The appellant was arrested and detained on March 21, 1987 from his residence at Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur by an order of detention made under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign currency and also with a view to prevent him from engaging and keeping smuggled, gold. The appellant was served with the grounds of detention by the Detaining Authority. Shri Tarun Roy, Joint Secretary to the Government of India. It had been stated therein that the appellant may make any representation to the Advisory Board against his detention.

4. In the grounds of detention it was inter alia stated that on the basis of the secret information received in the office of the Assistant Director, Enforcement Directorate, Agra, the appellant had been indulging in illegal sale and purchase of foreign currency and also in the sale and purchase of gold of foreign origin on a large scale and that search of the following premises connected with the appellant was carried out on December 10. 1986 under Section 37 of the Foreign Exchange Regulation Act, 1973 :

(i) Premises situated in Purana Laxman Mandir opposite Dr Ram Kumar, Bharatpur.

(ii) Premises situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur, and

(iii) Business premises of M/s Madanlal, Mohanlal and Baldev Singh, Karola, Laxman Mandir Crossing, Near Bata Shop, Bharatpur.

5. On April 6, 1987, the appellant made two representations : one to the Detaining Authority, respondent 2 and another to the Central Government, respondent 1. In the representation to the Detaining Authority, the appellant stated that he had no concern whatsoever as regards the residential premises situated at Purana Laxman Mandir, Opp. Dr Ram Kumar, Bharatpur where the search was conducted and on such search US dollars and primary gold were recovered, as the said premises does not belong to him but belongs to his sister-in-law. The appellants residential premises is situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur. It had also been stated therein that the relevant documents on the basis of which the detaining authority came to the subjective satisfaction were not supplied to him and unless the said documents are given to him it will not be possible for him to make any effective representation against the grounds of detention. In the second representation to the Secretary, Government of India dated April 6. 1987 also the appellant while reiterating the same facts stated that even the house from where the alleged recovery of foreign currency and gold was made is not his residential premises but is the residence of his sister-in-law. The appellant also stated that he was innocent and he should be released forthwith by revoking the order of detention. The appellant also stated that the Detaining Authority supplied him the relevant documents and also the information asked for in his letter dated April 6. 1987 only on April 24, 1987. The appellant also made a representation before the Advisory Board on April 27, 1987.

6. The appellant was produced before the Advisory Board on April 29, 1987 and the Advisory Board heard the appellant in respect of his representation. The appellant received, a communication dated May 7. 1987 from respondent 1 stating therein that his detention had been confirmed with effect from March 21, 1987 for a period of one year.

7. The appellant thereafter challenged the order of detention by a writ petition and also prayed for quashing of the said order of detention on the ground inter alia that the documents relie

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