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2001 Supreme(MP) 364
2002 (1) JLJ 31
J.G. Chitre and A.M. Sapre, JJ.
Anjali Lahiri Hariya (Smt.) v. Union of India and others
Writ Petition No. 980 of 2001; Decided on 3.7.2001.
G.L. Rawal, Amarsingh and Bhagwansingh for petitioner;
B.G. Neema for Union of India
Headnote:(1) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 -- S. 3 -- order of detention -- investigations and collection of information for subjective satisfaction resulting in delay of some months in passing the order -- delay not fatal.
The petitioner, who happens to be the wife of the detenu Lahiri Hariya, is hereby assailing the correctness, propriety and legality of the order which has been passed by the Joint Secretary to Government of India, Revenue Finance Department, dated 14.11.2000, whereby by virtue of provisions of section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to for convenience as "COFEPOSA Act‘), her husband Lahiri Hariya slo Vasant Hariya r/o 23, Rajesh Nagar, Indore, has been detained. The petitioner mainly attacked the said order on following grounds :-
1. The order of detention has been passed after considerable delay.
2. All necessary and relevant documents have not been furnished to the detenu and it prevented the detenu from filing effective representation and that infringed his fundamental right guaranteed by Art. 22(5) of the Constitution of India.
3. Though it was not demanded, it was the duty of the detaining authority to supply him copies of all documents on which it not only relied upon but referred to.
4. The detenu is already facing a criminal prosecution in view of provisions of section 135 of the Customs Act and, therefore, this preventive action was not at all necessary. [Para 1
Held: This does not show any illegality on the part of the acts committed by the detaining authorities or callousness on its part or does not indicate any ulterior Motive on the part of its. Is decision Makes it clear that the authority was really satisfied by a due process of finding out the truth and after when it came to know about the truth, it passed the order on 14.11.2000. 1987 (12) Delhi Reported Judgments 66 and 1987 (31) ELT 676 distinguished. [Para 16
(2) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 -- S. 3 -- Constitution of India -- Art. 22 (5) -- detailed enquiry made categorically mentioned in detention order -- copies of all important documents supplied to detenu -- fundamental right not violated.
At the time of dealing with such submissions, it has to be seen whether on account of non-supply of the copy of any document, a prejudice has been caused to the fundamental right of the detenu which would jeopardize his right to get protection from the constitutional provisions as indicated under Art. 22(5). It gets brushed aside in view of a detailed order by which detention has been heralded. [Para 23
The Court has to consider whether the subjective satisfaction of the detaining authority was really based on some material which was justifying it or whether it is dehors in quality and lacks in sufficiency of the material in it. On these two important points, the detention order passes the test. AIR 1981 SC 1991 and AIR 1994 SC 575 followed. [Para 24
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vfHkfu/kkZfjr % blls fujks/k çkf/kdkfj;ksa }kjk fd, x, dk;ks± dh voS/krk vFkok mudh vksj ls dksbZ funZ;rk nf‘kZr ugha gksrh vFkok mudh vksj ls dksbZ varjLFk gsrq fufnZ"V ugha gksrkA mlds fu.kZ; ls ;g Li"V gS fd çkf/kdkjh dk lR; [kkstus dh lE;d~ çfØ;k }kjk okLro esa lek/kku gqvk Fkk vkSj tc mls lR; dh tkudkjh gqbZ] mlus 14-11-2000 dks mDr vkns‘k ikfjr fd;kA 1987 ¼12½ Mh vkj ts 66 rFkk 1987 ¼31½ bZ ,y Vh 676 çHksfnrA ¿iSjk 16
¼2½ fons‘kh eqnzk laj{k.k vkSj rLdjh fuokj.k vf/kfu;e] 1974&/kkjk 3&Hkkjr dk lafo/kku&vuq-22¼5½&fujks/k vkns‘k esa C;kSjsokj tk¡p fd;k tkuk Li"Vr% mfYyf[kr&fu#) dks leLr egRoiw.kZ nLrkostksa dh çfr;k¡ çnÙk&ewy vf/kdkj dk vfrØe.k ughaA
,sls vH;kosnuksa ij fopkj djrs le; ;g ns[kk tkuk gksxk fd fdlh nLrkost dh çfrfyfi ds vçnk; ls fu#) dk ewy vf/kdkj çfrdwyr% çHkkfor rks ugha gqvk gS tks vuq- 22¼5½ esa ;Fkk fufnZ"V lkafo/kkfud mica/kksa }kjk laj{k.k çkIr djus dk mldk vf/kdkj tksf[ke esa Mky nsxkA foLr`r vkns‘k dh n`f"V ls ftlls fujks/k ?kksf"kr gqvk gS] ;g ckr fdukjs jg xbZ gSA ¿iSjk 23
U;k;ky; }kjk fopkj fd;k tkuk gksxk fd fujks/k çkf/kdkjh dk oLrqfu"B lek/kku oLrqr% ,slh lkexzh ij vk/kkfjr Fkk tks rdZlaxr Fkh vFkok og xq.koÙkk ls jfgr gS vkSj mlesa rkfRodrk dh deh gSaA bu nks egRoiw.kZ fcanqvksa ij vkns‘k dlkSVh ij [kjk mrjrk gSA , vkb vkj 1981 ,l lh 1191 rFkk , vkb vkj 1994 ,l lh 575 vuqlfjrA ¿iSjk 24
Chitre, J. (Oral) --1. The petitioner, who happens to be the wife of the detenu Lahiri Hariya, is hereby assailing the correctness, propriety and legality of the order which has been passed by the Joint Secretary to Government of India, Revenue Finance Department, dated 14.11.2000, whereby by virtue of provisions of section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to for convenience as 'COFEPOSA Act'), her husband Lahiri Hariya S/o Vasant Hariya R/o 23, Rajesh Nagar, Indore, has been detained. The petitioner mainly attacked the said order on following grounds:
1. The order of detention has been passed after considerable delay.
2. All necessary and relevant documents have not been furnished to the detenu and it prevented the detenu from filing effective representation and that infringed his fundamental right guaranteed by Art. 22(5) of the Constitution of India.
3. Though it was not demanded, it was the duty of the detaining authority to supply him copies of all documents on which it not only relied upon but referred to.
4. The detenu is already facing a criminal prosecution in view of provisions of section 135 of the Customs Act and, therefore, this preventive action was not at all necessary.
2. Shri B.G. Neema pointed out in countering the submissions advanced by Shri Rawal who has been assisted by Shri Amarsingh and Shri Bhagwansingh, advocates, that the order of detention which has been passed by the detaining authority has been' well justified and supported by the material which reveals •that there has been reasonable approach taken by the detaining authority and the detaining authority took the decision of detaining the detenu after due subjective satisfaction. Shri Neema submitted that the grounds of attack putforth on behalf of the detenu are not sufficient enough to shatter the order of detention and the detention order cannot be called in any way perverse or illegal and therefore, this petition deserves to be dismissed and it be dismissed.
3. Shri Neema pointed out that the material which has been putforth justifying the detention order is self-eloquent and that shows that those documents have been considered by the detaining authority for passing the detention order which were relevant to the cause. He submitted further that copies of all those documents have been furnished to the detenu and, therefore, the detenu could file the effective representation which has been considered by the Government of India and, therefore, when the matter was referred to the Board it has been also duly considered and both Government of India and the Board were pleased to dismiss the representation.
4. During the course of the submissions, the learned counsel appearing for the parties made reference to various judgments which would be referred to in the course of this judgment whenever they are necessary to be referred to.
5. The first point which has been put forth by Shri Rawal, counsel appearing for the detenu is that the material which was available with the detaining authority was totally insufficient to detain the detenu. For dealing with this first point of attack, the short history of the matter will have to be mentioned because that would be necessary not only for providing an answer to this ground but would be unfolding the matter and would be giving the idea as to how the detenu came to be detained.
6. On 9.12.1999, a truck which was coming from Dewas side bearing no. HR-46-9898 having orange colour tarpaulin cover, was apprehended by the Police because they suspected that the said truck was loaded with articles obtained by committing theft. After the said truck was apprehended, some preliminary interrogation was done with driver Makhansingh and cleaner Dukhran Rai who were present in the said truck. It was revealed that the said truck was carrying some articles ball bearings, manufactured by some companies situated in countries like Korea, Japan, Romania and
