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High Court Of Delhi
V.K.NASSAR - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 433 of 1989
Decided On : 11/07/1989
COFEPOSA ACT - SECTION 3(1), 8 - DETENTION ORDER - CONFIRMATION - DELAY IN CONFIRMATION - VALIDITY OF DETENTION - INTERPRETATION OF SECTION 8 - RATIO LAID DOWN IN SMT. PUSHPA V. UNION OF INDIA AND OTHERS, AIR 1979 SC 1953 FOLLOWED.
Fact of the Case:
The petitioner was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) on February 2, 1989. The petitioner challenged the detention order on the grounds that: (1) it was not disclosed in the order of confirmation when the reference was made to the Advisory Board and whether the Advisory Board had submitted its opinion within eleven weeks from the date of detention; (2) there was an unexplained delay in the disposal of the petitioner's representation; and (3) the detention was not confirmed within three months as required by law.
Finding of the Court:
The court found that: (1) the reference to the Advisory Board was made within five weeks from the date of detention and the Advisory Board gave its opinion within eleven weeks from the date of detention; (2) there was no undue delay in the disposal of the petitioner's representation; and (3) the detention was confirmed within three months from the date of detention, as the order of confirmation was made in the file within three months of the date of detention, even though the letter issued to the petitioner was dated May 9, 1989, and was served on the petitioner on May 15, 1989.
Issues: 1. Whether the detention order was valid, given that it was not disclosed in the order of confirmation when the reference was made to the Advisory Board and whether the Advisory Board had submitted its opinion within eleven weeks from the date of detention? 2. Whether there was an unexplained delay in the disposal of the petitioner's representation? 3. Whether the detention was confirmed within three months as required by law?
Ratio Decidendi: 1. The court held that the detention order was valid, as the reference to the Advisory Board was made within five weeks from the date of detention and the Advisory Board gave its opinion within eleven weeks from the date of detention, in compliance with Section 8 of the COFEPOSA Act. 2. The court held that there was no undue delay in the disposal of the petitioner's representation, as the representation was sent to the Deputy Director of Enforcement, Madras, for comments, and the comments were received and analyzed before the representation was put up to the Minister of State (Revenue) and the Finance Minister for approval. 3. The court held that the detention was confirmed within three months from the date of detention, as the order of confirmation was made in the file within three months of the date of detention, even though the letter issued to the petitioner was dated May 9, 1989, and was served on the petitioner on May 15, 1989, relying on the ratio laid down in Smt. Pushpa v. Union of India and others, AIR 1979 SC 1953.
Final Decision: The court discharged the rule and dismissed the writ petition.
( 1 ) VIDE order dated January 25, 1989, passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short cofeposa Act ) the petitioner has been detained on February 2, 1989, with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. This writ petition has been filed challenging the aforesaid detention order.
( 2 ) THE learned counsel for the petitioner has raised three grounds for challenging the said detention order. Firstly, he has argued that it is not disclosed in the order of confirmation served on the detenu on May 15, 1989, as to when, in fact, the reference was made to the Advisory Board and as to whether the Advisory Board had submitted its opinion within eleven weeks from the date of detention or not. Hence, he wanted the court to look into the record to verify these facts.
( 3 ) THE record shows that the reference was made to the Advisory Board on March 8, 1989 and the Advisory Board gave the opinion on April 20, 1989 and soon after the opinion was received by the Government. Under Section 8 of the COFEPOSA Act, the reference to the Advisory Board has to be made within five weeks from the date of the detention and the Advisory Board is required to give its opinion within eleven weeks from the date of the detention. These legal requirements have been complied with. Hence there is no merit in this contention.
( 4 ) THE learned counsel for the petitioner has cited Andrew C. Schmidtz v. Union of India and others, 25 (1984) Delhi Law Times 333. The facts of the said case are distinguishable because in the said case the last date for giving the opinion by the Advisory Board was June 2,1983 and it was not made clear by the authorities as to, in fact, when the opinion was submitted to the Government by the Advisory Board and thus, it was held that the opinion had not been submitted by the Advisory Board Government within the stipulated period of eleven weeks from the date of detention and thus, detention of the petitioner in that case was declared vitiated. Such is not the case here. The Advisory Board had given the opinion on April 20, 1989, and submitted the same well within eleven weeks from the date of detention of the petitioner.
( 5 ) THE second ground urged by the learned counsel for the petitioner is that the petitioner had made a representation dated March 16, 1989, to the Central Government and the same came to be rejected on April 21, 1989 and thus, there had taken place under and unexplained delay in disposal of the aforesaid representation.
( 6 ) SHRI Kuldip Singh, Under Secretary, Ministry of Finance, Department of Revenue, New Dilhi, in the counter-affidavit has averred that in fact, the representation addressed to the Central Government was dated March, 27 1989 but it was signed by the petitioner on March 30, 1989 and the same was received in COFEPOSA. Unit of the Ministry on April 4, 1989 under cover of letter dated March 31, 1989 of the Department of Home, Government of Kerala. It may be mentioned here that the detenu stands detained in the Central Prison, Trivendrum (Kerala ). The representation was sent to the Deputy Director of Enforcement, Madras, for comments and the comments were received on April 12, 1989 and they were analysed and put up by the Under Secretary on April 13, 1989, before the Assistant Director General who recorded his note and sent the file to the Minister of State (Revenue) on April 17, 1989 and the Minister recommended the rejection of the representation subject to approval of the Finance Minister on April 17, 1989 and the Finance Minister rejected the representation on April 20, 1989 and the rejection memo was issued on the following day. It is also mentioned in the affidavit that April 14 to April 16, 1989, were holidays and so also April 18,1989.
( 7 ) THE learned counsel for the petitioner has argued that the representation should not have been sent
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