Important point
Detenu has a right to be supplied with material documents on which reliance is placed by detaining authority but detention order will not be vitiated if document although referred to in the order is not supplied which was not relied upon by detaining authority for forming of its opinion or was made basis for passing detention order.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3—Detention order —Huge quantity of electronic goods recovered from baggage which appellant detenu was carrying having arrived from Colombo—Appellant gave a statement before officials of Directorate of Revenue Intelligence—Detention order was challenged on ground that authorities concerned made reference of two seized passports of appellant but copies of same were not supplied—High Court confirmed the detention order—Appeal —Detention order will not be vitiated if document although referred to in the order was not supplied which was not relied upon by detaining authority—Though detaining authority in the grounds of detention had referred to the passports but could not be said to have relied upon the document as appellant in his statement had admitted about his visits 23 times to Sri Lanka and 10 visits to Hong Kong—Passport entries were not made basis of detention order—Basis was of admission of foreign visits made by detenu in his statement—Non supply of copies of passports did not vitiate detention order.
Held : From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenue’s right to make a representation against the order of detention, is hampered by non-supply of the particular document. In the present case although the detaining authority in the grounds of detention had referred to the passports and the entries made therein for the foreign trips made by the detenu but that cannot be said to have been relied upon by the detaining authority for passing the detention order. The detenu-appellant has admitted in his statement dated 17.7.2004 which was in his own hand-writing, that he had an old passport under which he travelled 23 times to Sri Lanka out of which 10 visits were made to Hong Kong via Sri Lanka; that he had traveled once to Singapore and under the current passport he had traveled 4 times to Hong Kong via Sri Lanka. It is this statement of the detenu-appellant made before the authorities on 17.7.2004, was the basis for passing of the detention order and reference of the two passports containing entries of the foreign visits by the detenu is only a passing reference. The passport entries are not made the basis of detention order. The basis is admission of the foreign visits made by the detenu in his statement. We fail to understand as to how non-supply of copies of the passports of the appellant-detenu prejudicially affect his right to make a proper representation against the order of detention. The non-supply of copies of the passports will not have the effect of vitiating the detention order. (Paras 9 and 10)

Judgment

P.P. Naolekar, J.—Leave granted.

2. This appeal is preferred by the detenu, appellant challenging the order of the High Court dated 10th December 2004 whereby the High Court has confirmed the order of detention dated 23rd July 2004 made under the provision of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as “the COFEPOSA Act”). As per the impugned detention order the officers of the Directorate of Revenue Intelligence, Chennai received an intelligence on 16.7.2004 to the effect that detenu was arriving at Anna International Airport, Chennai from Colombo by Sri Lankan Airlines Flight UL-123 bringing electronic goods and other items in trade quantity in order to smuggle the same without payment of appropriate customs duty. In pursuance of the intelligence received, the appellant was intercepted by the customs authorities on his arrival on 16.7.2004. A personal search was conducted by the customs officials but nothing was found. However, from his personal baggage and hand baggage, custom officials found huge quantity of electronic goods valued at Rs. 19,92,200/-. The said goods were seized. Appellant was arrested and he gave a statement before the officials of the Directorate of Revenue Intelligence and on the basis of the said material found on 23.7.2004, an order of detention was issued. The appellant was served with the grounds of detention on 27th July 2004.

3. On 6th August 2004, detenu submitted a representation to the State and the Central Authority and, thereafter made representation to the Advisory Board. The representation made to the Advisory Board was rejected on 8.9.2004. The order of detention was confirmed on 24.9.2004. Thereafter, the appellant-detenu preferred a writ petition, challenging the order of detention which was dismissed by the High Court. Hence, the present appeal by Special Leave.

4. Learned counsel for the appellant has submitted that while passing the order of detention, authorities concerned made reference of two seized passports of the appellant but copies of the same were not supplied to the appellant. The detenu has a right to be furnished along with grounds of detention, copy of the documents relied upon and if there is failure or even delay in furnishing those documents, it tantamounts to denial of the right to make an effective representation guaranteed under Article 22(5) of the Constitution of India. Detenu has not been supplied with the copies of the passports, entries of which have been relied upon by the detaining authority for passing the detention order. The detention order, therefore suffers with the non-compliance of the constitutional protection and thus liable to be quashed.

5. In the grounds of detention it is said that on 17.7.2004 the detenu gave a statement in his own hand-writing in Tamil before the Senior Intelligence Officer, D.R.I., Chennai stating inter alia that he is the resident of Pudur Village in Sivagangai District. He arrived at Chennai on 16.7.2004 by Sri Lankan Airlines Flight UL-123; that he had obtained Passport bearing No. B-5315177 at Trichi. From the year 2002, he has been going abroad to procure electronic and other goods; that he had gone to Hong Kong and Singapore many times; that whenever he returned to India from abroad, he used to come through Chennai Airport only; that while returning to Chennai from abroad, he used to bring foreign goods, particularly, wrist watches; that he used to smuggle the goods through green channel and sell them outside; that this time on 14.7.2004 he went by UL-124 flight to Sri Lanka and from there on 15.7.2004 he went to Hong Kong; that on 15.7.04 he boarded the flight UL-123 at 7 O’Clock in the evening and arrived at Chennai and while returning, he brought 4 checked-in baggages and an hand baggage and paid Rs. 2000/- towards excess baggage charges. Under the old Passport he travelled about 23 times to Sri Lanka, 10 times to Hong Kong via Sri

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2005 Supreme(SC) 1086

Cases Referred (3)