1997 Supreme(Bom) 44

IN THE HIGH COURT OF BOMBAY
A.V. Savant S.S. Parkar, JJ.
Anand Swaroop Ram Kumar Gupta.... Petitioner.
Versus
The Union of India others.... Respondents.
Criminal Writ Petition No. 394 of 1996, decided on 24-1-1997.
Advocates appeared :
M.G. Karmali with Maqsood Khan and Smt. A.M.Z. Ansari, for petitioner.
R.M. Agrawal, for respondent Nos. 1 and 2.
Smt. V.K. Tahilramani, for respondent Nos. 3 and 4.

Headnote:

COFEPOSA ACT - SECTION 3(1) - ARTICLE 22(5) - DETENTION - REPRESENTATION - CONSIDERATION: The second representation dated 11th April 1996 was submitted to the Advisory Board when it met at New Delhi on 12th April 1996. A copy of the said representation was also handed over to the Sponsoring Authority when the said Authority was present before the Advisory Board at New Delhi on 12th April 1996. Admittedly two new contentions, which were not raised in the first representation dated 2nd April 1996, were raised in the second representation dated 11th April 1996. While it is not necessary for us to consider the merits of the two new contentions raised in the second representation for the purpose of deciding this petition, we may briefly indicate the nature of the new points that were raised in the second representation. Two new points that were raised in the second representation are as under :- (i) The Detaining Authority had taken into account the statements made by Ashok Pokharkar, the Proprietor of Amol Shipping Agency and Amit Garments. However, the statement of retraction made by Ashok Pokharkar on 3rd August 1995 was not placed before the Detaining Authority nor has a copy thereof been supplied to the detenu. (ii) Failure to place before the Detaining Authority the statements dated 2nd August 1995 and 18th September 1995 of Saida Nizam Saiyed, employee of Ashok Pokharkar and the consequent failure to furnish copies of the same to the detenu. Similarly the statements of Sumati Shetty recorded on 4th August 1995 and 13th September 1995 as also the statements of Balchandra Vasant Jadhav recorded on 3rd August 1995 and 9th August 1995 have neither been placed before the Detaining Authority nor have the copies thereof been furnished to the detenu. All these persons viz. Saida Nizam Saiyed, Sumati Shetty and Balchandra Vasant Jadhav are alleged to be the employees of Ashok Pokharkar. The second representation dated 11th April 1996, though addressed to the Advisory Board, contained a specific statement in para 3 that it should be considered by the appropriate authorities empowered to revoke the impugned order of detention. The pleadings viz. the affidavits of Shri K.L. Verma, the Detaining Authority and of Shri V.R. Parmaj, the Assistant Commissioner of Customs, who was the sponsoring authority leave no doubt whatsoever that though the second representation dated 11th April 1996 was placed before the Detaining Authority, Shri Verma, he only "Noted" the same but he did not pass an order of rejection thereon but "only cleared the file" or forwarded the matter with his endorsement to the Additional Secretary and finally to the Minister for Finance who rejected the second representation. Admittedly the rejection by the Minister for Finance is the rejection of the second representation dated 11th April 1996 by the Central Government. There is no rejection by the Detaining Authority which contention is advanced by Shri Karmali before us and on which we have heard both the learned Counsel at length. In the light of the above facts we may briefly refer to some of the authorities that were cited before us.

Fact of the Case:

Intelligence was received by the officers of the Marine Preventive Wing of the Customs Preventive Commissionerate, Mumbai to the effect that certain exporters of textile fabrics were indulging in large scale fraudulent misuse of the Duty Exemption Entitlement Certificate Scheme (DEEC Scheme) misdeclaring their blend/composition of polyester fabrics and inflating the weight of the consignments. They also used to fabricate the documents to show higher exports without either having made the exports physically or having made exports of a much lesser value and thus receiving Advance Import Licences claiming to have fulfilled the export obligation under the said DEEC Scheme. Consequently, such exporters used to obtain higher and inflated entitlement of duty free imports of polyester filament and yarn. Such Import Licences were then sold in the open market where they were bought at premium. Such licences are transferable. In short, by fraudulent means, licences for duty free import of polyester filament/yarn were being obtained for a much higher amount than what one was entitled to.

Finding of the Court:

In the result the order of detention is liable to be set aside. Accordingly the order of detention at Exhibit 'A' dated 4th March 1996 is quashed and set aside. The detenu is ordered to be released forthwith unless he is otherwise required to be detained in any other case.

Issues: Whether the failure on the part of the Detaining Authority viz. Shri K.L. Verma who was specially empowered under section 3(1) of the COFEPOSA Act to consider the second representation dated 11th April 1996 is violative of Article 22(5) of the Constitution of India.

Ratio Decidendi: The second representation dated 11th April 1996 contained two distinctly fresh contentions which were not raised in the first representation dated 2nd April 1996. The first representation was considered by the Central Government, the Detaining Authority as also by the Advisory Board. Shri Verma was the Officer specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention. The second representation dated 11th April 1996 was placed before the Detaining Authority, albeit, in the process of the matter being placed before the Central Government viz. the Finance Minister. At the highest it appears that Shri Verma 'noted' the said representation and recommended its rejection. It is well settled that the representation has to be considered by the detaining authority as well and decision taken thereon by the detaining authority. In Criminal Writ Petition No. 361 of 1996 decided by us on 16-1-96 we have taken the view that in case of the Detaining Authority being an officer specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention it is that specially empowered officer who has to consider and take a decision on the said representation. Admittedly that has not been done in the present case.

Final Decision: Petition allowed.