Delhi High CourtPrem Prakash vs Union Of India And Ors. on 17 February, 1995Equivalent citations: 1995(32)DRJ545JUDGMENT  

 Vijender Jain, J.(1) The petitioner was served with the preventive detention order underSection 3(1)of the Consideration of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to''COFEPOSA") passed by the respondent on 2.5.1994 on the same day while he was in judicial custody. He was also served with the grounds of detention and list of relied upon documents in pages running into 1780 pages on 5.5.1994.(2) Mr. Trilok Kumar, Learned counsel for the petitioner has argued that the petitioner was placed under arrest on 7.4.1994 and was remanded to judicial custody on 8.4.1994 and the detention order was served upon him on 2.5.1994 while he was in judicial custody and has challenged that there was no material before the detaining authority when the detenu was already in judicial custody to arrive at subjective satisfaction that nothing prevents him to avail remedies available to him under the law for getting himself released from the judicial custody. Mr.Kumar has stated that detaining authority had taken note of the fact that detenu has filed bail application dated 5.4.1994 which stood rejected on 22.4.1994 by Additional Chief Metropolitan Magistrate New Delhi and no bail application was filed or was pending after the above rejection and, therefore, the subjective satisfaction of holding that there was likelihood of the petitioner's release from the judicial custody and non- consideration of vital aspect shows non-application of mind and the detention order is passed on nonprobity or existing material as there was no imminent or likely release of the petitioner in near future. Another arguments advanced by learned counsel for the petitioner is that certain relied upon documents consist of documents in 'English' and 'Hindi', there were certain other documents which bore certain endorsement in 'Gurmukhi' and 'Urdu' without their translation in 'Hindi' language known to the detenu, were not supplied to him. On the basis of this submission, Mr.Kumar has argued that there was non- compliance of the provisions ofSection 3(3)of the Cofeposa Act read withArticle 22(5)of the Constitution of India. He has further argued that the petitioner has been supplied large number of documents which are claimed to have gone into for formation of subjective satisfaction of the detaining authority to detain the detenu. Those documents are wholly irrelevant documents and, therefore, that show non- application of the mind of the detaining authority. He has also assailed the detention order on the ground that documents, which were supplied, were not legible as the documents were voluminous the detenu pointed certain documents as illegible on 5.5.1994 itself and on 6.5.1994 detenu was served with a fresh set of documents but it was again found that certain documents were illegible and as bad as the documents supplied earlier to him. The petitioner has annexed with the petition copies of such documents as 'Annexure-E-1' to 'Annexure-E-5'. Learned counsel for the petitioner has argued that non-supply of these documents amounts to infraction of the provisions ofArticle 22(5)of the Constitution of India as the detaining authority failed to communicate the entire relied upon material which is part and parcel of the ground of detention within the statutory period and this has rendered the detention order invalid. Keeping in view the voluminous nature of documents, there was no undue delay in disposal of the representation of the petitioner so as to prevent him from making an effective representation. Supreme Court in Mst.M S.Umma Saleema V.B.B.Gujral & anr.  has held that 1-".....TRUE,it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt.Shalini Soni V.Union of India ). But these observations must be read in the context in which they were made in Shalini Soni's case, for example, the observation were made immediately after stating that "grounds" inArt.22(5)did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences. In Icchu Devi Choraria v.Union of India,  :   "IT is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention."THE stress was upon the words "relied upon". In Khudiram Das v.State of West Bengal  the Constitutional requirement ofArt.22(5)was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satis faction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement ofArt.22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the Fundamental Rights guaranteed byArt.22(5).In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon.by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed byArt.22of the Constitution."(3) MR.KUMAR has also averred that the legible copies of these documents were received on 15.6.1994 much beyond the statutory period.(4) Another ground urged before me by the learned counsel for the petitioner was that the affidavit, which has been filed in the present petition has not been filed by the detaining authority which passed the detention order. The detention order was passed by Mr.Mahendra Prasad, gh the affidavit has been filed by Mr.K.L.Verma, Joint Secretary, Department of Revenue, Ministry of Finance. What Mr.Kumar has contended is that when the allegations are of non- application of mind, double detention, affidavit of the detaining authority, who has clamped the detention order, should be filed. In support of his submissions he has cited .Mohinuddin @ Moin Master V.The District Magistrate, Beed & ors. (1-987) 3 Crime 1 |-    ".......INreturn to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by same responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or. other Officer duly authorised under the Rules of Business framed by the Governor underArticle 166of the Constitution to pass orders on behalf of the Government in such matters."(5) He has also cited the case of Glllab Mehra V.State of Uttar Pradesh 1988 Cr.L.J.168 and Mrs.Tsering Dolkar V.The Administrator, Union Territory of Delhi & Ors. 1987 Cr.L.J.988. Mr.Kumar has further argued that relevant material were not placed before the detaining authority for subjective satisfaction of detaining authority if the same were placed before it, it would have arrived at a different conclusion on placement of such material. He has argued that in the interim representation made by the petitioner on 17.5.1994, he had sought information about the placing and consideration of the medical report of the medical examination of the detenu as directed by the learned Additional Chief Metropolitan Magistrate, it is, therefore, clear that these informations were not disclosed before the detaining authority.(6) On the other hand, Ms.Meera Bhatia, learned counsel for the respondent, has argued that the petitioner had filed some petition at Calcutta High Court on 17.11.1993 and had obtained orders, that he shall not be arrested without the leave of the Court till 2.12.1993, against which a Special Leave Petition was filed in Supreme Court and the Supreme Court had set aside the order of Calcutta High Court on 4.2.1994. Learned counsel for the respondent has also argued that grounds of detention disclose in detail the activities of the petitioner and the clandestine manner in which he was involved. Learned counsel for the respondent has cited Kamarunnissa V.LIOI & anr.  in support of her arguments. Ms. Bhatia has also argued that the arguments of the learned counsel for the petitioner that non-supply of certain documents will not cause any prejudice to the detenu in making an effective representation and, therefore, in the present case those documents which were not legible had no bearing on making representation by the petitioner to the detaining authority or the Central Government and in support of her arguments, has cited Abdul Sathar lbrahim Manik V.Union of India & Ors. . She has vehemently argued that from the grounds of detention it would be amply clear that the activities of the petitioner is prejudicial to the economic activities of the State and the detaining authority after carefully arriving at the subjective satisfaction had clamped the detention order.(7) Respondent in reply to the affidavit filed on 23.8.1994 has stated that all the documents supplied to the detenu were legible. However, at the time of acknowledging the receipt of the documents, detenu has specifically mentioned that certain documents appear to be illegible and subsequently fresh legible copies of the documents were supplied to him. It is also averred in the said affidavit that in terms of the interim representation dated 17.5.1994 copies of relevant documents duly translated in the language known to the detenu have been supplied to the detenu and acknowledgement was obtained.(8) It has been further argued by Mr.Kumar that in the same representation detenu has requested the detaining authority to place for consideration Court's proceedings before the detaining authority with particular reference to Court's order dated 9.4.1994. No reply has been filed to this ground by the respondent.In support of his arguments Mr.Kumar has citedShri Gopal Chand Khandelwal V. Uoi & Ors.19.92 Jcc 489 that non-placing of relevant documents before the detaining authority has vitiated the subjective satisfaction and renders it illegal and invalid.To support his arguments that non-placement of medical report before the detaining authority at the time of passing of detention order amounts to non-application of mind, he has cited Varinder Singh Batra V.UOI & Ors. 1993 Jcc 460 and Shri Ram Goyal V. Uoi & Ore. 1984 Cr.L.J. 1048. In support of his arguments he has taken this Court to the contents of representation dated 17.5.1994 and argued that the reply was given for the first time by the respondent on 2.6.1994 and actually the legible copies were supplied only on 15.6.1994 and there is no explanation of delay by the sponsoring authority to supply the documents, which itself vitiates the order of detention. He has also argued that another representation was sent on 16.6.1994 which was rejected by the respondent on 23.6.1994 and the same was served on the petitioner on 26.6.1994 and the delay has not been explained.He has citedJulia Jose V. Uoi & Ors.1992 Cr.L.].109, Ratnesh Sahai V.UOI & Ors. 1992 CC.117, Raspati Ghale V. Uoi & Ors. 1992 Jcc 1, Baleshwar Prasad V. State 1992 Jcc 93, Satnam Singh v Uoi & Ors. 1992 Jcc 357 to support arguments that non-consideration of material documents like retracing of statement shows non-application of mind and on this ground alone the order of detention has to be quashed.He has also cited the case ofParammal Abdal Rahiman @ Abdu Rahiman V. Uoi & Ors.1989 (2) Delhi Lawyer 340.In support of his arguments that the retraction of the petitioner was not considered by the detaining authority, therefore, the subjective satisfaction of the detaining authority was vitiated, he has citedUoi & Ors. V. Manoharlal NarangandSita Ram Somani V. State of Rajasthan & Ors.1986 Cr.L.J'.860.To support his arguments that the proposition that extraneous matters which were not referred to in grounds influenced the mind of the detaining authority and hence order was vitiated, Mr.Kumar has cited the case ofVashisht Narain Karwaria V. State of U.P.& anr. 1990 Cr.L.J. 1311.(9) While dealing with the submissions of the learned counsel for the petitioner that the retraction statement of the detenu was not considered by the detaining authority and assuming that the ground relating to the retraction statement was an inadmissible ground on account of the retraction statement of the petitioner, still this Court has to see whether the order of detention is bad as the order of detention has been made separately on each of the grounds. I draw support from the observations made by the Supreme Court inMadan Lal Anand V. Uoi & Ors.in which the Supreme Court held I -    "IN the instant case, even assuming that the ground relating to the confessional statement made by the detenu underSection 108of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of the detention can be justified. The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly."(10) Now dealing with the contention of the learned counsel for the petitioner that the affidavit of detaining authority i.e. Mr.Mahendra Prasad, who was at the relevant time was Joint Secretary in the Department of Revenue, Ministry of Finance when the detention order was passed and instead the return has been filed by Mr.K.L.Verma, who is at present Joint Secretary in the Department of Revenue, Ministry of Finance. Supreme Court had occasion to deal with this aspect of the matter and it was held that non-filing of the affidavit by the detaining authority, who had passed the order of detention, may be an impropriety in the absence of allegations of mala fides. In State of Punjab & Ors. V.Jagdev Singh Talwandi , the Supreme Court held 1-"SARKARIA,J. observed on behalf of the Court  

 SINCE the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi the counter-affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order underSection 3was passed. If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention underSection 3cannot be furnished, the counter-affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor underArticle 166of the Constitution to pass orders on behalf of the Government in such matters.AFTER reviewing certain other decisions, the Court held that the failure to furnish the counter- affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority. In the result, the absence of the affidavit of the District Magistrate was held not to vitiate the order of detention."(11) Keeping in view the lawlaid down inState of Punjab & Ors.' s case (supra) and in the absence of any allegations of mala fides against the detaining authority, the arguments of Mr.Kumar regarding the non- filing of affidavit by Mr.Mahendra Prasad himself are not valid. As a matter of fact after Mr.Mahendra Prasad, Mr.K.L.Verma has come to occupy his seat as Joint Secretary in the Department of Revenue, Ministry of Fiance. I do not find any merit in this contention of the learned counsel for the petitioner.(12) However, the respondent in reply to the said ground has stated in their affidavit that the said medical report was also duly placed before the detaining authority and the same was also supplied to the detenu.(13) I have gone through the specific number of pages of documents, which have been asked for and supplied to the petitioner. All the documents were in a way linked with the petitioner resulting in the alleged transaction with which the petitioner was alleged to be connected, by taking into account all these documents. These documents were relevant. Some of them may not be connected with the petitioner or involving the petitioner directly but there was a link which ultimately connected the petitioner with such activities.(14) I have heard the submissions of the learned counsel for both the parties at length and gone through the voluminous pleadings of the parties and the catena of case laws cited before me. In the peculiar facts and circumstances of the case and seeing the conduct of the petitioner in not making himself available before the respondent for recording his statement and filing a petition before the High Court of Calcutta, I am of the opinion that there was compelling necessity of the detaining authority to arrive at subjective satisfaction that though the detenu was in judicial custody, there was likelihood of his being released and the detaining authority was also satisfied that the detenu was likely to indulge in activites which are prejudicial to the smuggling of foreign exchange.(15) I do not see force in the arguments of the learned counsel for the petitioner that vital documents, which were necessary, were not supplied to the petitioner or documents, which were necessary, were not supplied in time so as to preclude the petitioner from making an effective representation. The argument of the petitioner is contrary in terms because the petitioner has argued that irrelevant documents have been taken into consideration and the same have not been supplied to him. If the petitioner himself takes a position that a document is not relevant then to argue that the same have been relied upon by the detaining authority inasmuch as it has been stated so in the grounds of detention will itself not make those documents relevant. Sometimes, a document may be unrelated or innocuous to the detenu and non-supply of such documents will not vitiate the order of detention and it cannot be said on that basis that irrelevant material has been considered by the detaining authority showing non-application of mind. Reading of grounds of detention as a whole in the particular facts and circumstances of this case, I hold that the grounds are sufficient to support the detention order underSec.5Aof the Cofeposa Act. I hold that the petitioner was not precluded from making an effective representation to the authorities concerned in this case. In view of the explanation given in the counter-affidavit filed by the respondent, I do not hold that there was undue delay in disposing the representation of the petitioner. Following the lawlaid down bythe Supreme Court in Abdul Sathar lbrahim Manik's case (supra) and Virender Kumar Rai V.Union of India , I find that there is no force in the arguments of the learned counsel for the petitioner that there was inordinate delay in passing the detention order keeping in view the voluminous nature of documents and persons involved from whom the investigation was to be made by the sponsority authority  

(16) For the reasons stated above, I dismiss the writ petition. Rule is discharged.