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High Court Of Rajasthan
Judgename : N.M.KASLIWAL,MOHINI KAPUR
PRAKASH CHAND - Appellant
Versus
UNION OF INDIA - Respondent
CRI. H. C. P. 1719 Of 1984
Decided On : 04/09/1986
COFEPOSA - Detention - Non-Supply of Documents - SAFEMA - Jurisdiction - Constitutional Obligation.
Fact of the Case:
The petitioner was detained under COFEPOSA without being supplied with any documents forming the basis of the detention order and grounds. He challenged the detention and the subsequent proceedings under SAFEMA on the ground that the detention was illegal and without jurisdiction.
Finding of the Court:
The court held that the non-supply of documents along with the detention order violated the petitioner's constitutional right to make an effective representation under Article 22(5) of the Constitution. The court further held that since the detention under COFEPOSA was illegal, no proceedings could be taken under SAFEMA.
Issues: 1. Whether the non-supply of documents along with the detention order violated the petitioner's constitutional rights? 2. Whether the proceedings under SAFEMA could be taken when the detention under COFEPOSA was illegal?
Ratio Decidendi: 1. The court relied on a catena of Supreme Court judgments holding that the detaining authority is constitutionally obligated to supply the documents relied upon or referred to in the detention order or grounds of detention pari passu with the order. 2. The court held that SAFEMA applies only to persons detained under COFEPOSA, and since the detention under COFEPOSA was illegal, no proceedings could be taken under SAFEMA.
Final Decision: The court allowed the petition, quashed the detention order under COFEPOSA, and the proceedings under SAFEMA.
KASLIWAL, J.
( 1 ) THE petitioner carried on business of the handicrafts and jewellery at Mirza Ismail Road, Jaipur in the name of gem Palace, a partnership concern, till 15-11-76. On 20th and 21st Nov. , 1974 a search was conducted by the I.-T. O. at the business premises of Gem Palace as well as at the residence of the petitioner and a number of documents were also seized from the residence of the petitioner (and) were taken over, by the authorities of the Enforcement Directorate under the Foreign Exchange Regulation Act, 1973 (in short fear) from the I.-T. O. on the ground that the seized documents revealed violation of the Foreign Exchange Regulation Act.
( 2 ) THE case of the petitioner further is that he was arrested on 28-11-74 but on that very day he was admitted to bail by the Chief Judicial Magistrate, Jaipur in the sum of Rs. 10 lakhs. Thereafter the petitioner appeared on several dates before the learned Chief Judicial Magistrate from 3-1-75 to 19-5-76 but no complaint or charg-sheet was filed against the petitioner for any offence under the FERA and the Chief Judicial Magistrate was compelled to close the case. During this period the petitioner was examined by the Enforcement Officers and on 17-11-75 five show cause notices for initiating adjudication proceedings were issued.
( 3 ) IT has been further alleged by the petitioner that in July, 1977 while the petitioner was on a religious tour, he was taken seriously ill and was admitted in the Sawai Man Singh Hospital at Jaipur as an indoor patient for retention of urine, haematuria and general failing of his health. On 17-7-1977 the petitioner learnt in the hospital that there was some warrant of arrest against him and accordingly the petitioner requested some one attending upon him to inform the Inspector General of Police, Rajasthan, Jaipur about his being an indoor patient in the urology ward of the said Hospital at Jaipur and that he was not in a position to move about.
( 4 ) IN the meantime while the petitioner was in extremely bad state of health he was served on 20-7-77 with an order of detention dt. 11-11-76 along with the grounds of detention under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the COFEPOSA ). It was directed that the petitioner be detained and kept in custody in the Central Jail at Jaipur. The petitioner was informed that a meeting of the Advisory Board in the Delhi High Court was to take place and, therefore, if the petitioner desired to appear before the Board he could so appear but the petitioner expressed that he was unable to appear on account of his serious illness which did not allow him to move out of bed at all. The case of the petitioner is that while he was so confined in the Hospital, he continued to struggle between life and death for quite a long time and it was only some time in the middle of August, 1977 that the petitioner could think of looking into the order of detention and the grounds therefor. The order of detention and the grounds were not accompanied with any documents whatsoever forming the basis thereof. However, since the petitioner was in a very bad state of health he could not represent anything against the said order of detention particularly because the documents forming basis and referred to in the grounds of detention were not supplied to the petitioner either along with the order and grounds of detention or at any time thereafter while the petitioner continued to remain under detention. However, on the Jail authorities informing the petitioner that the meeting of the Advisory Board was to take place at Delhi he should go before them or send any representation if he so liked, the petitioner being under serious ailment, requested the Jail authorities to forward the order of detention and the grounds to his wife Smt. Chand Kanwar Bai and ask her if she could get some representation prepared. The Jail authorities acceded to th
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