IMPORTANT POINTS
1. Delay of only one week in sending some of the relevant record to Advisory Board u/s 8 of COFEPOSA Act may not by itself make the whole reference illegal and vitiated.
2. No right in favour of detenue to get his successive representations based on same grounds rejected earlier to be formally disposed of again.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 8—Preventive detention order—Delay in sending relevant documents to Advisory Board within period of five weeks—Reference was made to Advisory Board within 5 weeks enclosing set of order of detention along with grounds of detention and documents—Other relevant documents were sent to Advisory Board after a week—Delay of only one week in sending some record may not by itself make whole reference illegal and vitiated.
       Held : The contention of the appellant in this case is that though the reference was made within the stipulated period of five weeks from the date of detention, all the material papers were sent to the Advisory Board only on 23.3.1996 whereas the statutory period of five weeks had already expired on 14.3.1996. This, according to the appellant’s learned Counsel, is illegal and, therefore, for all practical purposes, the reference was beyond the period of five weeks of detention and the entire proceedings are vitiated. We do not find much force in this contention. It is true that it is a valuable right of the detenue to have the validity of his detention examined by the Advisory Board. It is a fundamental right of the detenue guaranteed under Article 22 of the Constitution. Any violation of the procedure is to be viewed seriously. But, in our opinion, the delay of only one week in sending some of the relevant records may not by itself make the whole reference illegal and vitiated. Under clause (c) of Section 8 of the COFEPOSA Act, a period of eleven weeks from the date of the detention is given to the Advisory Board to give its opinion. The Advisory Board is also empowered to call for any information from the appropriate Government. If the relevant materials were not placed before the Advisory Board at the time it had taken the decision, that would have been a serious violation of the right guaranteed under Article 22 of the Constitution. The fact that merely because some of the materials were inadvertently not sent along with the reference, will not vitiate the proceedings.(Para 7)
       (ii) COFEPOSA Act, 1974—Section 3—Preventive detention order—Representation submitted on behalf of detenue not placed before Advisory Board and Representation was rejected belatedly—It was one of the five representations sent on behalf of detenue which was in Tamil—Only that representation was pending where as other representations were disposed of in time—Non-placement of that representation did not cause any prejudice to detenue.
       (iii) COFEPOSA Act, 1974—Section 3—Detention order—Delay of 119 days in disposing of the representation made by wife of detenue by detaining authority—Delay was caused mainly due to non-availability of translated copy of representation which was in Tamil—Earlier two representation made by detenue and two by his lawyer were disposed of in time—As soon the translation was received it was disposed of within a short period—There was no inordinate delay in disposing of the representation.
       Held : On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenue shall receive immediate attention and that the same shall be considered by the appropriate authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenue.(Para 16)
       In the instant case, as already noticed, the detenue himself filed two representations and on his behalf, his Counsel submitted another two representations and there is no allegation that these representations were not considered in time. But the representation filed by the present appellant, the wife of the detenue was disposed of only with a delay of 119 days. The delay was caused mainly due to non-availability of the translated copy of the representation. The representation was made in “Tamil” and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation.(Para 17)
       It is true that this court in series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside. Nevertheless, it may be noticed that if the delay is reasonably explained and that by itself is not sufficient to hold that the detenue was bad and illegal. In Smt. K. Aruna Kumari Vs. Government of A.P. & Ors. (1988) 1 SCC 296 relying on State of U.P. Vs. Zavad Zama Khan (1984) 3 SCC 505 this Court held that there is no right in favour of the detenue to get his successive representations based on the same grounds rejected earlier to be formally disposed of again and also pointed out that in any event no period of limitation is fixed for disposal of an application.(Para 18)
       (iv) COFEPOSA Act, 1974—Section 3—Preventive detention order—Challenged on plea that it was based on sale material as detention order was passed in Feb., 1996 after about two years of alleged involvement of detenue for violation of FERA—Allegations were serious which involved several crores of rupees—Various transactions were done in clandestine manner and all such material contributed to delay—Detention order was not vitiated.(Para 26)
       (v) COFEPOSA Act, 1974—Section 3—Preventive detention order—Challenged on plea that detenue was a non-resident Indian—No material to prove that detenue was a non-resident Indian and thus was beyond ken of provisions of COFEPOSA Act.(Para 27)

JUDGMENT

K.G. Balakrishnan, J.—This appeal is preferred against the judgment of the Division Bench of the Madras High Court in a Habeas Corpus Petition field by the present appellant challenging the order of detention passed by the authorities under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA Act’). The detention order was passed on 5.2.1996 and executed on 7.2.1996. The brief facts which are necessary to appreciate the contentions advanced by the appellant are as follows.

2. The detenue was born in Thanjavur district in Tamilnadu. He completed his Plus Two education in 1981 and later jointed the B.E. Course in an Engineering College and completed the same in 1986. His father was a Government Servant working in a Local Administrative Department at Trichy. During 1988-89, the detenue came to Madras and worked as a Trainee in Madras Builders’ Office. Later, he entered the field of real estate business and came in contact with others in that business. A firm was formed in 1991 by name M/s. Emerald Promoters Pvt. Ltd. The detenue married the present appellant in 1992. Apart from M/s. Emerald Promoters Pvt. Ltd., the detenue had an interest in some other financial concerns as well. The detenue was also the proprietor of M/s. T.C.V. Engineering Pvt. Ltd. in Madras. In 1995, the Enforcement Directorate received certain information that the detenue was engaged in transaction in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (hereinafter being referred to as “FERA”). Notices were issued to the detenue under Section 40 of the FERA on 12.7.1995, 15.7.1995, 3.8.1995, 17.10.1995 and 25.10.1995. According to the Enforcement Directorate, the detenue evaded all these notices for about four months and ultimately the detenue was examined and his statements were recorded on various dates starting from 1.11.1995 to 31.1.1996. The Enforcement Directorate alleged that a letter dated 4.8.1994 of the Barclays Bank, Sutton, UK, with a list attached thereto, indicated that 21 cheques involving a total amount of US $ 1,04,93,313 were deposited in the account of M/s. Dipper Investments. Subsequently, some documents were recovered by the Enforcement authorities which revealed that 13 cheques for US $ 62,61,313 favouring M/s. Dipper Investment Ltd., were to be credited in account no. 3001-8937 of the said company in Barclays Bank.

3. The detenue was questioned on his trips abroad to varied destinations such as Singapore, Hong Kong, London, etc. He was also questioned regarding his financial connection with Nianish Desai and one Ramachandran and also one Mr. Rajoo of Malaysia about depositing one million Singapore Dollars with the company, by name M/s. Adventure Holding Pvt. Ltd., Singapore, so as to make the detenue the Director of that Company in place of one N.C. Rangesh. From the materials collected by the Enforcement Directorate, the detaining authorities came to the conclusion that an order under Section 3(1) of the COFEPOSA Act is to be passed for preventive detention of the detenue.

4. On behalf of the detenue, the present appellant raised several contentions challenging the detention order. The Division Bench of the High Court rejected all those contentions and held that the detention order was legal. One of the contentions raised by the appellant was that the detenue was having the status of an NRI and, therefore, he was beyond the reach of the provisions contained in the COFEPOSA Act. This plea was elaborately considered by the High Court and rejected. The other contention raised by the appellant was that the representation submitted on behalf of the detenue was not considered in time. There was a delay in dealing with that representation and hence there was a serious infraction of the valuable right of the detenue under Article 22 of the Constitution. It was also argued that the COFEPOSA Advisory Board was not supplied with the

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2006 Supreme(SC) 381

Cases Referred (14)