JUDGMENT - N.P. CHAPALGAONKAR, J.:---Both these writ petitions challenge orders separately made in respect of Rajesh R. Khushalani and Tushar M. Shah under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ordering their detention and housing them at Central Prison, Bombay. Since the points of facts and law to be considered and raised in these petitions are common, they are being disposed of by this common judgment.

2. It is alleged that M/s. Tushar Enterprises, M/s Aum Enterprises and M/s. Shah Enterprises had remitted abroad foreign exchange worth Rs. 5 crores with the help of some fake import documents presented to Union Bank of India. It is alleged that the business which was used as a cover was import of chemicals and besides some genuine transactions with the help of one Ram living in Hongkong a conspiracy was hatched and Ram was helping to prepare the said documents and send them to India. Four persons namely, Tushar Shah, who is said to be the King-pin ; Kirit L. Shah; Pankaj Valia and Ramesh Khushalani came to be detained by separate orders passed by Shri Mahendra Prasad, Joint Secretary to the Government of India on 5th of September, 1991 under section 3(1) of the COFEPOSA Act, 1974. All the four detenues had challenged the detention orders and out of them, Writ Petition No. 1375/1991 challenging the detention order of Kirti Shah came to be allowed by Division Bench of this Court and he was directed to be released. Whereas, Writ Petition No. 1408/1991 challenging the detention of Uday T. Valia came to be dismissed and his detention was confirmed by this Court on 4th March, 1992. The detentions of rest two detenues are the subject matters of the present writ petitions before us.

3. Shri Madhu Patel, learned Counsel appearing in support of Criminal Writ Petition No. 1448/1991 made following submissions for our consideration :

(1) The statement of the co-accused Harish Shah was considered by the Detaining Authority but retraction of the said statement was not placed before the Detaining Authority and was not considered. Therefore, the material which was necessary for the proper consideration was kept out of the consideration of the Detaining Authority.

(2) Some other documents relied by the Detaining Authority are not supplied to the detenu inasmuch as the copies thereof are illegible.

(3) In paragraph 14 of the grounds of detention, reference has been made to 11 bills of entry and it has been stated that the Bombay Customs has reported that they do not tally with the records. But certain endorsement is found only on the documents at serial Nos. 1 to 7 but no such endorsement is copied down in the copies supplied to the detenu in respect of the documents at serial Nos. 8 to 11. Since these are important documents constituting the basic facts, the non-supply of the said documents along with the material entries has infringed the right of the detenu under Article 22(5) of the Constitution of India and has deprived him for the opportunity to represent.

(4) That, the grounds supplied and sought to be supported by the Detaining Authority in the affidavit submitted before this Court materially differ thereby vitiating the subjective satisfaction which is the necessary pre-requisite for a detention order.

(5) Undue delay in executing the detention order has snapped the relation between the purpose of detention and the detention order and that the grounds have become stale.

4. Apart from these submissions for which the foundation was made in the petition, Shri Patel also wanted to submit that though the grounds of detention mention that the application for bail of the detenu was granted whether the detenu has actually availed the benefit of it has not been brought on record and considered by the Detaining Authority. There is no foundation for this oral submission of Shri Patel in the petition and apart from this, the record reveals that the fact was known to the Detaining Authority t

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