IMPORTANT POINT
Exoneration in adjudication proceedings could not necessarily be a ground to nullify the order of detention.

JUDGMENT

Dr. Arijit Pasayat, J. — Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Bombay High Court dismissing the Habeas Corpus Petition filed by the appellant. In the writ petition challenge was to the order of detention dated 27th August, 1998 passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (in short the ‘COFEPOSA’) in respect of one Bherchand Tikaji Bora alias Bharat alias Bhermal alias Dimple alias Dhayabhai (hereinafter referred to as the ‘detenu’).

3. The appellant had filed the writ petition challenging the detention of his brother-Bherchand Tikaji Bora the ‘detenu.

4. Though several grounds were urged in support of the writ petition at the time of hearing only two grounds were urged. Firstly (a) with reference to the facts given in grounds of challenge 1(a) to 1(f) it was argued that when the detenu was exonerated fully in the adjudicating proceeding, then there was no necessity of passing any detention order and (b) this aspect of exoneration of the detenu in the adjudicating proceedings should have been taken note of by the detaining authority.

5. The aforesaid two statements were made on the basis of following position.

6. The Enforcement Directorate, Mumbai carried out certain search of the residential premises of one Pravin Popatlal Shah under Section 37 of the Foreign Exchange and Regulation Act, 1973 (in short the ‘FERA’). On 16.1.1997 residence of detenu was searched by some officers of the same Directorate. Then detention order dated 27.8.1998 was passed. The show cause notice was given to the detenu on 18.1.1999 for contravention of the provisions of Section 9(1)(a) of the FERA. The Detenu submitted his written explanation on 30.3.1999 and adjudication order dated 29.11.1999 was passed by the Special Director of Enforcement.

7. The High Court analysed the position of law laid down by this Court in several cases and held that it was not a case of unexplained delay in execution of the order of detention. Further the exoneration in the adjudication proceedings cannot be a ground to nullify the order of detention. Accordingly the writ petition was dismissed.

8. In support of the appeal learned counsel for the appellant in addition to what was urged before the High Court submitted that certain documents which had relevance were not supplied to the detenu and he was, therefore, not in a position to make an effective representation. The detention order had also been challenged on the ground that the confessional statement of the detenu was retracted subsequently on 15.7.1994 and hence original confession allegedly made on 13.7.1994 could not have been used.

9. Learned counsel for the respondent on the other hand submitted that not only the original statement but the so called retraction was duly taken note of by the detaining authority. The said Authority referred to the retraction and after its consideration felt that order of detention was necessary.

10. At this juncture it would be appropriate to take note of what was stated by this Court in Sadhu Roy v. The State of West Bengal [1975(1) SCC 660]. In that case final police report terminated the criminal proceedings. The question was whether in such an event order of detention can be passed. This Court inter alia observed as follows:

xxx xxx xxx

“What is the impact of a discharge of the accused by the criminal court based on police reports on the validity of the detention order against the same person based on the same charge in the context of a contention of a non-application of the authority’s mind?

xxx xxx xxx

The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for “security” purposes. But if such discharge or acquittal proceeds on the footing that the charge if false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power un