(July 20, 2001) 2001 (TLS)125293

2001-AD (Del)-6-29 :: 2001-ILRDLH-5-51

AKHILESH KUMAR TYAGI Vs. UNION OF INDIA

ARIJIT PASAYAT

( 1 ) ORDER of detention passed on 11/08/2000 by the Joint Secretary to the Government of India under Section 3 (1) of the Conservation of Foretgn Exchange and Prevention of Smuggling Activities Act, 1974 (in short, the Act ) pursuant to which the petitioner Akhilesh Kumar Tyagi (hereinafter referred to as detenu ) is detained in the Central Jail, Tihar, New Delhi, is assailed in this habeas corpus petition.

( 2 ) DETENTION of the detenu was considered necessary by the Detaining Authority with a view to prevent him from smuggling goods in future. The grounds of detention dated 11/08/2000 were supplied to the detenu in both English and Hindi language. The detenu was made aware of his right to make representation against the detention to the Detaining Authority, Central Government as well as the Advisory Board. It was indicated that the representation meant for the Detaining Authority was to be addressed to the Joint Secretary, (COFEPOSA), Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau; the representation meant for the Central Government was to be addressed to the Secretary, Ministry of Finance, Department of Revenue; and the representation meant for the Advisory Board to be addressed to the Chairman, Advisory Board (COFEPOSA), Delhi High Court. The grounds were communicated for the purpose of clause (5) of Article 22 of the Constitution of India, 1950 ( in short, the Constitution ) and Section 3 (3) of the act. The detenu made representations to the Detaining Authority, the Central government and the Advisory Board, but the prayer for revoking the detention did not find acceptance.

( 3 ) IN support of the writ petition primarily following stands have been taken: -

A)THERE was no ground for directing detention;

B)THERE was variation between the English version and the hindi version of the grounds of detention on material aspects, thereby depriving the detenu the opportunity of making an effective representation;

C) a prayer was made for examination of witness, who was present outside the room where the Advisory Board s meeting was held, and notwithstanding the specific prayer made in this regard the witness was not called, and therefore, the detenu was deprived of a valuable learned counsel for the respondents, however, submitted that the factual position highlighted in the grounds of detention shows that on the basis of past conduct the propensities of the detenu indulging in activities considered objectionable and clearly predictable in future. It was further submitted that the detenu is a highly qualified and his feigned ignorance of English language was only a ruse to hide the truth. Even if it is accepted, there were minor variations in the two versions, that in no manner prejudiced the detenu and or deprived him from making an effective representation. At the time of hearing, the challenge to the order was restricted only on the ground of variation in the two versions and to the ground of non-examination of the witness. There was no prayer made before the Advisory Board to examine any witness as claimed.

( 4 ) WE shall first deal with the plea about non-examination of the witness, claimed to be present on the date of hearing before the Advisory Board. For the limited purpose of verifying whether in fact this representation dated 10/10/2000 was before the Advisory Board, we had called for the records of the advisory Board. On a perusal thereof, we find that the Advisory Board had taken note of the representations dated 07/09/2000 and 04/10/2000. There is not even a reference to the representation dated 10/10/2000, wherein a mention is made about the presence of a witness, i. e. , S. P. Sharma. In the order of the advisory Board, reference has been made to various submissions of learned counsel appearing for the detenu before the Advisory Board. Alleged