IMPORTANT POINT
Time taken in completing the process of issuance of order of detention has not to be tested by applying same standard as is applied in matter of consideration of representation of detenu.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Section 3 — Detenu acting as an agent of some exporters was found to be involved in fraudulent exports — Preventive detention order — Delay in passing order of detention — Detenu was arrested in connection with criminal case on 30-3-2005 and was released on bail on 12-4-2005 — Detention order was passed on 27-1-2006 — Time taken in completing the process for issuance of order of detention has not to be tested by same standard as is applied in matter of consideration of representation of detenu — Details furnished by detaining authority provided sufficient explanation for time taken in issuing order of detention — Detention order could not be said vitiated.
       Held : We are satisfied that there was no delay on the part of the authorities in taking necessary steps in connection with issuance of the order of detention. Moreover, the time taken in completing the process for issuance of order of detention has not to be tested applying the same standard as is applied in the matter of consideration of representation of a detenu. This Court in several judgments has emphasized the promptness with which the concerned authority must deal with representation received from the detenu. The right to represent and its fair and prompt consideration by the concerned authority is a constitutional right guaranteed to a detenu. The authorities dealing with such representations must be aware of the fact that the detenu is languishing in custody without a trial. Their conduct must, therefore, disclose a consciousness of the urgency in the matter. The norms and standards laid down by this Court in the matter of consideration of the representation of a detenu, cannot be strictly applied to the case of processing of a proposal for detention of a person under the Act. No doubt, if there is inordinate delay in issuing the order of detention, it may well be argued that the live link between the prejudicial activity of the detenu and the purpose for which order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention. In the facts and circumstances of this case, we are satisfied that the details furnished by the detaining authority provide sufficient explanation for the time taken in issuing the order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but in view of the voluminous record which had to be scanned and scrutinized before issuance of the order of detention, the order could not be issued earlier.(Para 7)
       There is one other reason which explains why the order of detention could not be issued earlier. We have been informed that the petitioner had moved the High Court and obtained an order of stay on June 30, 2005. Such an order was passed in view of the fact that an application for compounding of the offence was pending and it was, therefore, prayed that pending consideration of that application, no such proceedings should be resorted to. It appears that the said order was modified on October 19, 2005. This also explains why the order could not be passed earlier and only after the order was modified, the then Detaining Authority had made an endorsement for the issuance of order of detention, but the same could not be issued immediately for the reasons explained by the Detaining Authority. We, therefore, find no substance in the first submission urged on behalf of the petitioner.(Para 8)
       (ii) COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Non-application of mind — Detenu acting as an agent of some exporters was found to be involved in fraudulent exports — Detaining authority who issued detention order took charge on 10-1-2006 and she passed detention order on 27-1-2006 and documents ran into about 2000 pages — Contention that authority signed the order on grounds which were prepared by her predecessor — No basis for assertion that detaining authority without applying her mind passed the order.
       Held : The order of detention was not prepared overnight. As explained by the detaining authority it is a continuous process. The proposal of the sponsoring authority is first examined by the Screening Committee and thereafter by the officers of the Home Department at various levels. The material collected is then placed before the detaining authority for its consideration. In this case the sponsoring authority had made a proposal much earlier, but from time to time further generated documents were being dispatched to the detaining authority which were considered by the detaining authority. There is really no basis for the assertion that the detaining authority without applying her mind passed the order of detention.(Para 11)
       We entertain no doubt that the detaining authority did apply her mind to the material on record and only on being subjectively satisfied about the compelling necessity to issue the order of detention, issued the order and grounds of detention. It may be that she also considered the draft grounds of detention which may have been prepared by the earlier detaining authority, but that by itself will not vitiate her order if she applied her mind to the relevant material on record and recorded an independent subjective satisfaction on the basis thereof. In the facts and circumstances of this case, we are satisfied that the detaining authority did not proceed to issue the order of detention mechanically on the basis of the subjective satisfaction of her predecessor, but applied her mind to the material on record and independently reached the subjective satisfaction that it was necessary, in the facts of the case, to issue the order of detention. The second submission urged on behalf of the petitioner is also rejected.(Para 13)
       (iii) COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Challenged on ground that translated copies of all documents, statements and other material were not furnished within statutory period of five days to detenu — Documents served were in English — Within 10 days translated documents were made available to him — Ample material to establish that detenu in fact was conversant with English language and corresponded with authorities in that language — Service of documents upon him in English language did not breach Article 22(5) of Constitution.
       Held : On the following day the detenu no doubt sent a letter to the detaining authority through the Jail Superintendent that the order of detention and the grounds of detention supplied to him were in English language which he did not understand. He, therefore, requested that he may be supplied all those documents translated in Marathi. Thereafter, on 10th February, 2006 i.e. within 10 days the translated documents were made available to him. There is ample material on record to establish that the detenu in fact was conversant with the English language and corresponded with the authorities in that language. The authorities, therefore, had no reason to suspect that he did not know the English language. One such document on record is a letter addressed by him to the Directorate of Revenue Intelligence which is dated 24th December, 2005. The letter is written in the English language and signed by the petitioner in English. Counsel sought to explain this letter saying that the letter contains legal submissions and, therefore, that may be a letter drafted by his advocate and only signed by the detenu. However, there is also another letter of 18th January, 2006 written to the Senior Intelligence Officer, DRI, Mumbai notifying his change of address. This letter is also in the English language and signed by him in English. There is, therefore, material on record to establish that the petitioner understands the English language and has been corresponding with the authorities in that language. Moreover, if one were to notice the manner in which he was conducting his export business, it would leave no manner of doubt that having regard to the large number of documents to be filed and required to be filed, he could not have conducted his business on such a large scale without being conversant with the English language. He has signed all documents in English.(Para 15)
       On the basis of the material before us we are satisfied that the detenu knows the English language and, therefore, service of the documents upon him in the English language did not breach Article 22(5) of the Constitution of India. However, by way of abundant caution translated copies of documents were provided to him within 10 days of his request. We, therefore, find no merit in the last submission urged on behalf of the detenu.(Para 16)

JUDGMENT

B.P. Singh, J. — The instant Habeas Corpus petition has been filed by the petitioner Sheetal Manoj Gore, wife of Manoj Arjun Gore (the detenu) impugning the order of detention passed under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on January 27, 2006. The order of detention has been challenged mainly on three grounds namely, delay in passing the order of detention, non-application of mind by the detaining authority and supply of documents in a language which he did not understand.

2. According to the petitioner, the detenu is the proprietor of M/s. Manoj Enterprises. It is stated in the impugned grounds of detention that the detenu acted as an agent of some exporters and was found to be involved in fraudulent exports made by those exporters. On a perusal of the order of detention it would appear that goods seized were found to be mis-declared as to their nature and value. Some of the seized goods were goods cleared without payment of Central Excise duty from factories declaring them as meant for export but diverted to local market. In the corresponding airway bills the goods were described as “Industrial Raw Material” as against their specific names. On a consideration of all the material placed before her the detaining authority was satisfied that the petitioner had played a very crucial role in perpetuating the whole fraud on the revenue alongwith two others. The detenu had, therefore, actively aided and abetted the smuggling of the goods as defined by Section 2 (39) of the Customs Act, 1962, and as adopted in the COFEPOSA Act, 1974 vide Section 2(e) thereof. Considering the nature and gravity of the offence and the well organized manner in which the detenu was engaged in prejudicial activities, with a view to prevent him in future from abetting smuggling of good, it was necessary to detain him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

3. It is the case of the petitioner that the first statement of the detenu was recorded under Section 108 of the Customs Act by the officers of the DRI on March 29, 2005. Thereafter, several statements of his were recorded, the last on April 28, 2005. Similarly, the statements of his accomplices were also recorded between March and June, 2005. The detenu was arrested on March 30, 2005 in connection with a criminal case registered against him but he, as well as one of his accomplices, was released on bail on April 12, 2005. On January 10, 2006 the impugned order of detention was passed.

4. Shri Uday U. Lalit, learned senior counsel appearing on behalf of the petitioner submitted that there was an inordinate delay in passing the order of detention which resulted in snapping of the live link between the acts complained of and order of detention. He submitted that the prejudicial activity of the detenu must have come to the notice of the detaining authority some time in March, 2005, but the order of detention was passed 10 months later. If there was really any material to support the allegations against the detenu, and there was urgency in the matter, the detaining authority could not have waited for so long before passing the order of detention. He further submitted that the detaining authority who passed the impugned order namely, Smt. Chandra Iyengar, was empowered under Section 3(1) of the COFEPOSA Act, 1974 to act as a detaining authority by the State Government on January 10, 2006. Before her one Ms. Neela Satyanarayana was empowered under Section 3(1) of the Act to act as the detaining authority. She had been so empowered on June 3, 2003 and continued as such till January 9, 2006. She must have received the proposal for the detention of the detenu between April 12, 2005 and September 12, 2005 that is the date of release of the detenu on bail and the date of receipt of further generated documents as mentioned in para 28 of the impugned grounds of detention. Despite this Neela Sat

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2006 Supreme(SC) 747

IMPORTANT POINTTime taken in completing the process of issuance of order of detention has not to be tested by applying same standard as is applied in matter of consideration of representation of detenu.

Cases Referred (2)

IMPORTANT POINT
Time taken in completing the process of issuance of order of detention has not to be tested by applying same standard as is applied in matter of consideration of representation of detenu.