2006 Supreme(SC) 1046

2006(9) Supreme 113
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.H. Kapadia and R.V. Raveendran, JJ.
Usha Agarwal - Appellant
versus
Union of India & Ors. - Respondents
Criminal Appeal No.1114 of 2006
(Arising out of Special Leave Petition (Crl.) No. 3012/2006)
With W.P. (Crl.) No.191 of 2006 (D-14072/2006)
Decided on 2-11-2006
Counsel for the Parties :
For the Appellant : Pratibha Jain, Advocate.
For the Respondents : Vikas Singh, A.S.G., Harish Chandra, Sr. Advocate, Ajay Sharma and B. Krishna Prasad, Advocates.

IMPORTANT POINTS
1. If the relevant facts or documents which may influence the subjective satisfaction of the detaining authority on the question whether or not to make the detention order, are not placed before the detaining authority, or are not considered by the detaining authority, it may vitiate the detention order itself.
2. Illegibility of portions of documents which are copies of documents furnished by the detenu, cannot be a ground for grievance by the detenu.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Order of detention - Procedural safeguards - Exclusion of a ‘relevant’ document - A document is relevant for considering case of a person for preventive detention when - Action of detenu in diverting duty free imported goods into the domestic market in violation of the Duty Exemption Entitlement Certificate Scheme, amounting to ‘smuggling’ of goods - Allegations that the sponsoring authority had withheld from the detaining authority a relevant material, i.e. order stopping EXIM benefits to firm of detenu - Document in question did not prove any smuggling/prejudicial activity on the part of detenu - Whether non consideration would vitiate the detention order - (No) - Constitution of India - Article 22(5).

       Held : The document in question did not prove any smuggling/prejudicial activity on the part of the detenu. It only shows that the Department of Foreign Trade had stopped all EXIM benefits to Sandip Exports Ltd., pending further action, as certain illegal activities of that company had come to its notice. The said document was, therefore, neither relevant nor necessary to decide whether the detenu had indulged in smuggling or other prejudicial activity. The detaining authority obtained satisfaction in regard to that aspect from the material that was placed by the sponsoring authority to show illegal activities which amounted to smuggling.(Para 12)

       The said document was also not relevant to establish propensity or potentiality of the detenu to continue his illegal activities. The export-import violations, which amount to smuggling, involve considerable planning, organization and establishing a network. The propensity is deducible from the modus operandi adopted by the violator, the inclination of the violator to indulge in such activities and the further opportunity to commit such illegal activities. Persons indulging in such prejudicial activities routinely create front companies and firms. The fact that a particular front company is denied the EXIM benefits will not deter a violator from continuing such activities, as he can always operate through other front companies/firms. The contention of the detenu that as the said order dated 15/20.4.2004, stopped the EXIM benefits to Sandip Exports Ltd., he could not have continued the alleged illegal activity, and therefore, the detention order was not warranted, is untenable. The EXIM benefits were stopped with reference to only one company namely, Sandip Exports Ltd., and that too till finalization of further action. The investigation and search by the Directorate of Revenue Intelligence, had disclosed that the detenu had other front companies. In fact the detention order makes reference to a similar violation by the detenu by using M/s. Scandia Investments (P) Ltd. which was another front company controlled by him and his family. When the benefits of illegal activity are stopped to a particular company, the brain behind the violation, would merely shift the operations to another front company or start the activities through a new company. It should also to be noted that whenever any irregularities/violations in regard to export/ import comes to the attention of the department, the benefits are stopped in the normal course, pending finalization of further action. Therefore, it cannot be said that the document whereby EXIM benefits to one of the companies controlled by the detenu was stopped, was a relevant document, non-consideration of which would vitiate the detention order.(Para 13)

       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Order of detention - Copies of documents furnished to detenu were illegible - Held, illegibility of portions of documents which are copies of documents furnished by detenu, cannot be a ground for grievance by the detenu - Detenu’s right to make an effective representation against his detention not hampered by non supply of legible copies - Constitution of India - Article 22(5).

       Held : The High Court has examined the copies that were furnished to the detenu. In regard to the grievance relating to illegible copies occurring between pages 493 and 887 and the last page, the High Court found that these were copies of the documents which were supplied by the detenu himself, and the department could do no better than to furnish the copies thereof. If the documents furnished by the detenu to the department contained some portions or pages which were illegible, obviously the copies thereof furnished by the detaining authority to the detenu will also contain such illegible portions. The learned counsel for the appellant contented that if really any document furnished by the detenu was illegible, it could not have been used against the detenu. But this contention overlooks the fact that a document may contain several sheets and illegibility of some sheets or parts of some sheets will not come in the way of the authorities making use of the legible portions of the documents furnished by the detenu, supplemented by other documents secured during investigation. There is nothing strange in the department making use of partially legible documents furnished by detenu. Therefore, illegibility of portions of documents which are copies of documents furnished by the detenu, cannot be a ground for grievance by the detenu. Insofar as the allegation that some of the sheets between pages 124 to 371B were illegible, the High Court after having gone through the copies of documents furnished to the detenu, has found no substance in the contention. In fact, while acknowledging the copies of documents, the detenu has made an endorsement that they were legible. (Para 16)

       The entire issue of furnishing of illegible copies is with reference to the question whether detenus right to make an effective representation against his detention is hampered by non-supply of legible copies. The High Court after an examination of the copies of documents found that the detenu was not so hampered. Having gone through the representations made by the detenu against his detention, we also find that he was in no way hampered by the fact that a few of the sheets/copies of documents were partly illegible.(Para 17)

       (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Order of detention - Delay in considering second representation made by detenu submitted to the Central Government - Words ‘as soon as may be’ occurring in clause (5) of Article 22 of the Constitution - Meaning - First representation made by detenu was disposed of by the Advisory Board, Detaining Authority and Central Government on 27-1-2006, 10-2-2006 and 13-2-2006 - Second representation dated 7-2-2006 given to the Central Government was nothing but a reiteration of the representation that was given to the Advisory Board on 16-1-2006 copies of which were given to detaining authority and Central Government - Any delay in disposing of the subsequent representation dated 7-2-2006 or any delay in communicating the decision on such representation will not vitiate order of detention - Constitution of India - Article 22(5).

       Held : The scope of Clause (5) of Article 22 which provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against such order, has been examined in several decisions.(Para 18)

       This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention.(Para 18)

       The order of detention states that detenu can make representations to (i) Detaining Authority, (ii) Central Government, and (iii) Advisory Board, in regard to the detention. The detenu has a constitutional as also statutory right to make a representation against detention not only to the Detaining Authority but to any authority which can revoke the order of detention. He can also represent to the Advisory Board constituted under section 8 of COFEPOSA Act. Such representations no doubt should be disposed of by the concerned authority as early as possible. The fact that the Detaining Authority or the Advisory Board have rejected the representation of the detenu does not discharge the Central Government from its responsibility to consider and dispose of the representation expeditiously.(Para 19)

       In this case we find that the first representation dated 16.1.2006 was disposed of by the Advisory Board, Detaining Authority and Central Government on 27.1.2006, 10.2.2006 and 13.2.2006. The second representation dated 7.2.2006 given to the Central Government is nothing but a reiteration of the representation that was given to the Advisory Board on 16.1.2006 copies of which were given to detaining authority and Central Government. The representation dated 16.1.2006 had already been considered and rejected by the Central Government by order dated 13.2.2006. Therefore applying the principle in Abdul Razak Dawood Dhanani (supra), any delay in disposing of the subsequent representation dated 7.2.2006 or any delay in communicating the decision on such representation will not vitiate the order of detention.(Para 22)