1996 Supreme(Guj) 530

Gujarat High Court
Judgename :M.R.CALLA
URMILA NARESH MITTAL - Appellant
Versus
UNION OF INDIA - Respondent
S.C.A. 5274 of 1996
Decided On : 10/29/1996

Headnote:(a) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Provision of the Act - With special reference to safeguards provided under Arts. 21 & 22 of Constitution - Approach & orientation.

       Whereas, violation of Foreign Exchange Regulations and Smuggling Activities have increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State and whereas the manner in which such activities or violations are organised and carried on and whereas certain areas are highly vulnerable to smuggling, and smuggling activities are of a considerable magnitude and are organized and carried on clandestinely, the legislature thought it fit that an Act be enacted to effectively prevent such activities and the violations so as to provide for detention of persons concerned in any manner therewith. Thus, the legislative intent providing for the detention in appropriate cases to take care of deleterious effect on the national economy in the context of violation of Foreign Exchange Regulations and Smuggling Activities is very clear in the enactment of COFEPOSA Act by the Parliament.

       The Constitution of India which is the fountain source of the laws provides in Art. 21 of the Constitution of India that no person shall be deprived of his life or personal liberty except according to the procedure established by law and through Art. 22 the protection has been provided against arrest and detention in certain cases and accordingly no person is to be detained in custody without being informed at the earliest possible opportunity of the grounds of such arrest and he is not be denied the right to consult and defend. While providing further safeguards against the preventive detention, the authority making the detention order has been charged with the obligation under Art. 22(5) of the Constitution of India of communicate the grounds on which the detention order is based at the earliest possible opportunity and a right to representation against such detention has been given to the detenu. Accordingly, when an order is made with regard to the preventive detention and if it comes to challenge before the Court, the validity of such order of preventive detention is to be decided with reference to the Act under which the detention order has been passed with due regard to the provisions contained in Arts. 21 and 22 of the Constitution of India and the validity of the detention orders have been examined by the Courts in various cases on the basis of the clear test as to whether the order has been pased in conformity with the provisions of the Act and as to whether the due safeguards provided under the law and under the Constitution of India have been violated or not.

       [Para 4]

       Cherished values and objects of the Act with reference to national economy are not be defeated but at the same time the constitutional safeguards and the rights conferred under Arts. 21 and 22 of the Constitution of India cannot be sacrificed at the altar of the preventive detention under the Act. In my opinion, this distinct test based on the observations made by the Supreme Court must take care of the object of the Act enacted by the Parliament, command of the Constitution which we, the people of India, have given it to ourselves.

       [Para 9]

       (b) Constitution of India, 1950 - Art. 22(5) - Provision under - Scope of - Imposes dual obligation on the authority making the order of preventive detention (i) communicate ground of detention to detenue and (ii) afford him earliest opportunity of making representation.

       While referring to Art. 22 (5) of the Constitution of India it has been held that the provision has same force and sanctity as any other provision relating to fundamental rights. Article 22 (5) imposes a dual obligation on the authority making the order of preventive detention : (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made and (ii) to afford the person detained the earliest opportunity of making representation against the order of detention.

       [Para 8]

       (c) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Sec. 3(1) - Constitution of India, 1950 - Art. 22(5) - Detention - Delay in deciding petitioners representation - Admittedly in the case representation made on 16.2.1996 was rejected on 29.3.1996 but under the facts and circumstances it can not be said that there were any remissness on the part of authority or that they acted with a supine indifference - Explanation given by respondents is acceptable and there is no force in the submission that petitioners right of making effective representation under Art. 22(5) has been in any way violated.

       The explanation which has been given in the three affidavits by the respondents for the periods 16th February, 1996 to 29th March, 1996 shows that there were as many as 11 holidays falling in between this period which was sufficient to put the brake in the exercise of the consideration of the representation, calling for the comments and the time taken for that purpose cannot be held to be unwarranted or uncalled for nor it can be said in the facts of the case that calling of the legal opinion was not necessary or unwarranted and if the officers were required to attend the Advisory Boards Meeting at Pune where the cases of the present petitioners were required to be considered by the Advisory Board and for that purpose if some time was taken, it is not a case in which a view can be taken looking to the matrix set out hereinabove that there were any remisseness on the part of the authority to consider the representation of the petitioners or that they have acted with a supine indifference or that they have acted with such a negligence which is inexcusable. I just do not find any force in that submission of the learned counsel for the petitioners that the petitioners right of making effective representation under Art. 22(5) of the Constitution of India has been violated and thus the first contention raised on behalf of the petitioners is hereby rejected.

       [Para 37]

       (d) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Sec. 3(1) & (3) - Constitution of India, 1950 - Art. 22(5) - Non-supply of documents referred to and relied upon by the detaining authority in the grounds of detention - Requirement was to supply such documents with the grounds of detention or within 5 days thereof - In the instant case documents were supplied on 20.1.1996 after the service of grounds on 17.1.1996 & thus not beyond the outer limit indicated by Supreme Court - Consequently question of violation of fundamental right to make effective representation under Art. 22(5) does not survive.

       The outer limit for the supply of the grounds being 5 days and the principle which has been enunciated by the Supreme Court in several decisions that the documents and materials forming an integral part of the grounds, the supply of the documents and material not with the grounds but separately and yet within a period of 5 days would be sufficient to meet the requirement of Sec. 3(3) and merely because the grounds are supplied on an earlier date and the documents and material are supplied on a later date would, in my opinion, not infringe upon in any manner whatsoever, the right of effective representation under Art. 22(5) of the Constitution and hence on the correct meaning of the word "pari passu" and the interpretation of this requirement as has been given in the several decisions of the Supreme Court, it would not be correct to use this as lever to render the detention order as void if the grounds are supplied on an earlier date and the documents and materials are supplied on a subsequent date though within the outer limit of 5 days.

       [Para 43]

       (e) Constitution of India, 1950 - Art. 22(5) - Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Sec. 3(1) - Detention - Non-supply of documents relating to evasion of alleged custom duty by petitioners - Grounds of detention coupled with the documents supplied leave no scope to say that grounds supplied are vague - Obviously petitioners can not claim to supply of evidence - As a result contention that goods supplied are vague in absence of documents pertaining to alleged custom duty by petitioners is not acceptable.

       The question whether the grounds in a given case are vague or not and as to whether on that account the right under Art. 22(5) has been violated or not is a question which is to be decided on the basis of the contents of the grounds supplied in each cases. In the case at hand the grounds including the particulars with regard to the evasion of customs duty, the person through whose agency the petitioners were alleged to be operating, what is the modus operandi which was applied etc., had all been furnished and these grounds of detention are to be read along with the documents which have been supplied and in my opinion, the grounds of detention coupled with the documents which have been supplied to the petitioners on 20th January, 1996 leave no scope to say that the grounds supplied in the instant case are vague. Obviously the petitioners were not entitled to supply of the evidence and therefore, in my opinion, none of the decisions relied upon by the petitioners in this regard are of any help to the petitioners so as to hold that the grounds are vague and therefore the third contention raised on behalf of the petitioners also fails and the same is hereby rejected.

       [Para 52]

       (f) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Sec. 3(1) - Constitution of India, 1950 - Art. 22(5) - Detention - Non-supply and non-consideration of vital documents - Effect of - Petitioners right of making effective representation is violated - Explanation subsequently given that the alleged documents consideration of which not indicated in order of detention, held not acceptable.

       It is found to be a case in which certain vital documents have not been supplied, copies of certain documents are not legible and certain documents are not at all readable, and further that the order of detention does not find the consideration of certain documents mentioned in the addendum at item Nos. 54 to 73 about which a subsequent explanation is being given that they were considered which explanation is not at all acceptable in view of the settled proposition of law, I find that the petitioners right under Art. 22(5) of the Constitution of India has been violated to that extent.

       [Para 67]