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CASE NO.:

Appeal (crl.) 178 of 1997

PETITIONER:

D. Anuradha

RESPONDENT:

Joint Secretary & Anr.

DATE OF JUDGMENT: 24/04/2006

BENCH:

K.G. BALAKRISHNAN & B.N. SRIKRISHNA

JUDGMENT:

J U D G M E N T

K.G. BALAKRISHNAN, J.

This appeal is preferred against the judgment of the

Division Bench of the Madras High Court in a Habeas Corpus

Petition filed by the present appellant challenging the order of

detention passed by the authorities under Section 3(1) of the

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 (hereinafter referred to as

'COFEPOSA Act'). The detention order was passed on

5.2.1996 and executed on 7.2.1996. The brief facts which are

necessary to appreciate the contentions advanced by the

appellant are as follows.

The detenue was born in Thanjavur district in

Tamilnadu. He completed his Plus Two education in 1981 and

later joined the B.E. Course in an Engineering College and

completed the same in 1986. His father was a Government

Servant working in a Local Administrative Department at

Trichy. During 1988-89, the detenue came to Madras and

worked as a Trainee in Madras Builders' Office. Later, he

entered the field of real estate business and came in contact

with others in that business. A firm was formed in 1991 by

name M/s. Emerald Promoters Pvt. Ltd. The detenue married

the present appellant in 1992. Apart from M/s. Emerald

Promoters Pvt. Ltd., the detenue had an interest in some

other financial concerns as well. The detenue was also the

proprietor of M/s. T.C.V. Engineering Pvt. Ltd. in Madras. In

1995, the Enforcement Directorate received certain

information that the detenue was engaged in transactions in

violation of the provisions of the Foreign Exchange Regulation

Act, 1973 (hereinafter being referred to as "FERA"). Notices

were issued to the detenue under Section 40 of the FERA on

12.7.1995, 15.7.1995, 3.8.1995, 17.10.1995 and 25.10.1995.

According to the Enforcement Directorate, the detenue evaded

all these notices for about four months and ultimately the

detenue was examined and his statements were recorded on

various dates starting from 1.11.1995 to 31.1.1996. The

Enforcement Directorate alleged that a letter dated 4.8.1994 of

the Barclays Bank, Sutton, UK, with a list attached thereto,

indicated that 21 cheques involving a total amount of US

$ 1,04,93,313 were deposited in the account of M/s. Dipper

Investments. Subsequently, some documents were recovered

by the Enforcement authorities which revealed that 13

cheques for US $ 62,61,313 favouring M/s. Dipper Investment

Ltd., were to be credited in account no. 3001-8937 of the said

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company in Barclays Bank.

The detenue was questioned on his trips abroad to varied

destinations such as Singapore, Hong Kong, London, etc. He

was also questioned regarding his financial connection with

Nainish Desai and one Ramachandran and also one Mr. Rajoo

of Malaysia about depositing one million Singapore Dollars

with the company, by name M/s. Adventure Holding Pvt. Ltd.,

Singapore, so as to make the detenue the Director of that

Company in place of one N.C. Rangesh. From the materials

collected by the Enforcement Directorate, the detaining

authorities came to the conclusion that an order under

Section 3(1) of the COFEPOSA Act is to be passed for

preventive detention of the detenue.

On behalf of the detenue, the present appellant raised

several contentions challenging the detention order. The

Division Bench of the High Court rejected all those contentions

and held that the detention order was legal. One of the

contentions raised by the appellant was that the detenue was

having the status of an NRI and, therefore, he was beyond the

reach of the provisions contained in the COFEPOSA Act. This

plea was elaborately considered by the High Court and

rejected. The other contention raised by the appellant was

that the representation submitted on behalf of the detenue

was not considered in time. There was a delay in dealing with

that representation and hence there was a serious infraction of

the valuable right of the detenue under Article 22 of the

Constitution. It was also argued that the COFEPOSA Advisory

Board was not supplied with the materials as contemplated

under Section 8 of the COFEPOSA Act and thus there was no

proper reference to COFEPOSA Advisory Board. These pleas

were also rejected by the Division Bench.

In the instant appeal before us, the main contention

urged by the learned senior Counsel Shri B. Kumar was that

the relevant documents were not forwarded to the Advisory

Board within a period of five weeks, stipulated under Section

8(b) of the COFEPOSA Act. It was urged that the

representation addressed to the Joint Secretary was not

placed before the Advisory Board and the same should have

been sent to the Advisory Board within a period of five weeks

from the date of reference. The reference had been made to

the Advisory Board on 22.2.1996 enclosing one set each of the

Order of detention along with the grounds of detention and

other documents. The first meeting of the Advisory Board

was scheduled on 22.3.1996, but the reference was not

considered on the said date. The learned Counsel for the

appellant contended that while making reference to the

Advisory Board under Section 8(b), the entire documents were

not sent to the Advisory Board. It was pointed out by learned

Counsel for the appellant that the detention order was

executed on 7.2.1996 and the period of five weeks from the

date of execution would expire on 14.3.1996, but all the

relevant documents were sent to the Advisory Board only on

23.3.1996. This, according to the appellant, is in gross

violation of Section 8 of the COFEPOSA Act.

As per Section 8(b) of the COFEPOSA Act 1974, the

appropriate Government, within a period of five weeks from

the date of detention of a person, shall make a reference in

respect thereof to the Advisory Board constituted under clause

(a) of Section 8 to enable the Advisory Board to make a report

under sub-clause (a) of clause 4 of Article 22 of the

Constitution. Clause (c) of Section 8 of the Act further says

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that the Advisory Board, to which a reference is made shall

consider the materials placed before it and after calling for

such further information as it may deem necessary from the

appropriate Government or from any person called for the

purpose through the appropriate Government, or from the

person concerned, shall give its opinion as to whether or not

there is sufficient cause for the detention of the person

concerned and submit the same within a period of 11 weeks

from the date of the detention of the person concerned. The

Advisory Board has also got the power to hear the detenue in

person for the purpose of arriving at such opinion.

The contention of the appellant in this case is that

though the reference was made within the stipulated period of

five weeks from the date of detention, all the material papers

were sent to the Advisory Board only on 23.3.1996 whereas

the statutory period of five weeks had already expired on

14.3.1996. This, according to the appellant's learned

Counsel, is illegal and, therefore, for all practical purposes,

the reference was beyond the period of five weeks of detention

and the entire proceedings are vitiated. We do not find much

force in this contention. It is true that it is a valuable right

of the detenue to have the validity of his detention examined

by the Advisory Board. It is a fundamental right of the

detenue guaranteed under Article 22 of the Constitution. Any

violation of the procedure is to be viewed seriously. But, in

our opinion, the delay of only one week in sending some of

the relevant records may not by itself make the whole

reference illegal and vitiated. Under clause (c) of Section 8

of the COFEPOSA Act, a period of eleven weeks from the date

of the detention is given to the Advisory Board to give its

opinion. The Advisory Board is also empowered to call for any

information from the appropriate Government. If the relevant

materials were not placed before the Advisory Board at the

time it had taken the decision, that would have been a serious

violation of the right guaranteed under Article 22 of the

Constitution. The fact that merely because some of the

materials were inadvertently not sent along with the reference,

will not vitiate the proceedings.

Strong reliance was placed on the decision of this Court

in Icchu Devi Vs. Union of India and others (1980) 4 SCC

531. That is a case where the order of detention under

Section 3(1) of the COFEPOSA Act was served on the detenue

on June 4, 1980 and when the detenue was arrested on May

27, 1980 he was given the grounds of detention. The grounds

of detention referred to several documents and statements and

the detenue demanded for copies of the documents,

statements and other materials. It was only in July 11, 1980

that the copies were supplied but still copies of some other

records were not given. There was a delay of one month in the

supply of copies of document.

In the fact situation of the above case, this Court held

that the burden of showing that the detention is in accordance

with the procedure established by law is always on the

detaining authority in view of the clear and explicit terms of

Article 22 of the Constitution. It was also held that the right

to be supplied copies of the documents, statements and other

materials relied upon in the grounds of detention without any

undue delay flows directly as a necessary corollary from the

right conferred on the detenue to be afforded the earliest

opportunity of making a representation against the detention

and unless the former right is available, the latter cannot be

meaningfully exercised.

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The learned Counsel for the appellant also contended

that the representation submitted on behalf of the detenue

was not placed before the Advisory Board and, therefore, it

had no occasion to consider this material before giving its

opinion. It was contended that the appellant had submitted

the representation on 22.2.1996 and the Ministry had

admitted that the same was received on 25.2.1996. When the

reference was made on 23.3.1996, neither a copy of the

representation was sent to the Advisory Board nor any

decision was taken on the representation. It was urged by the

appellant's learned Counsel that the representation was

rejected belatedly and the Advisory Board did not have the

advantage of considering the representation. This plea is also

devoid of any force. Firstly, this is one of the five

representations sent on behalf of the detenue. On 22.2.1996,

appellant, the wife of the detenue sent a representation in

Tamil and on 24.2.1996 and 26.2.1996 on behalf of detenue,

two representations were sent by S. Ramachander Rao, the

senior Advocate to the Central Government. The detenue also

sent two other representations, one on 27th February in Tamil

and another on 16th March, 1996. Whatever materials

available with the State Government were sent to the Advisory

Board and the representations were disposed of in time and

the only representation sent by the appellant on 22.2.1996

was pending with the authorities when the reference was

made. We do not think that the non-placement of that

representation had caused any prejudice to the detenue.

Yet another serious contention urged by the appellant's

learned Counsel is that the representation sent by the

appellant, the wife of the detenue, to the detaining authority

was disposed of after a delay of 119 days. It was pointed out

that the representation was received by the Ministry on

25.2.1996 and the same was sent for translation on 27.2.1996

as the representation was in Tamil language. The translated

copies did not come within a period of three months and it

reached COFEPOSA Section on 3.6.1996 and on 6.6.1996

para-wise comments were sought and the representation was

rejected only on 26.6.1996. This according to the appellant's

learned Counsel caused serious prejudice to the detenue and

this inordinate delay by itself is sufficient to set aside the

detention order.

Reference was made to various decisions. In B. Alamelu

Vs. State of Tamil Nadu and Others AIR 1995 SC 539, there

was a delay of 84 days in forwarding a copy of the

representation to the Central Government and that was held

to be in violation of the procedure and the detention was held

to be illegal. That is a case where the wife of the detenue sent

a representation addressed to the Superintendent of the

Central Prison where the detenue was kept in prison. In the

representation, it was specifically stated that it should be sent

to the persons mentioned in the grounds of detention. The

Superintendent of the Central Prison did not send a copy of

the same to the Central Government in time and there was a

delay of 84 days in sending the same to the Central

Government. That was held to be a serious violation of the

right guaranteed under Article 22 of the Constitution.

Similar view was taken in Jai Prakash Vs District

Magistrate, Bulandshahar, U.P. and Others 1993 Supp. (1)

SCC 392. That was a case where the Jail Superintendent

did not send the representation to the Central Government

though sufficient copies were served on it. The Jail

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Superintendent had sent the representation only to the State

Government.

In Francis Coralie Mullin Vs. W.C. Khambra and

Others (1980) 2 SCC 275, this Court held that (1) the

detaining authority must provide the detenue a very early

opportunity to make a representation; (2) the detaining

authority must consider representation as early as possible

and this preferably must be before the representation is

forwarded to the Advisory Board; (3) the representation must

be forwarded to the Advisory Board before the Board makes its

report; and (4) the consideration by the detaining authority of

the representation must be entirely independent of the hearing

by the Board or its report, expedition being essential at every

stage. In this case reference was also made to Prabhakar

Shankar Dhuri Vs. S.G. Pradhan (1971) 3 SCC 896(II) and

Kanti Lal Bose Vs. State of West Bengal (1972) 2 SCC 529

and in these two cases, delay of 16 days and 28 days

respectively in disposing the representation of the detenue was

held to vitiate the detention.

The learned Counsel for the appellant also relied on Mst.

L.M. S. Ummu Saleema Vs. Shri B.B. Gujaral and another

(1981) 3 SCC 317 and contended that the detaining authority

was under an obligation to adequately explain each day's delay

and the representation made by the detenue has to be

considered by the detaining authority with utmost expedition.

On a survey of the various authorities, it is clear that the

representation, if any, submitted on behalf of the detenue

shall receive immediate attention and that the same shall be

considered by the appropriate authorities as expeditiously as

possible. Any delay would naturally cause prejudice to the

detenue.

In the instant case, as already noticed, the detenue

himself filed two representations and on his behalf, his

Counsel submitted another two representations and there is

no allegation that these representations were not considered in

time. But the representation filed by the present appellant,

the wife of the detenue was disposed of only with a delay of

119 days. The delay was caused mainly due to non-

availability of the translated copy of the representation. The

representation was made in "Tamil" and it is submitted by the

Union Government that it took about three months to get a

proper translation of the representation and as soon as the

translation was received, the authorities took urgent steps and

it was disposed of within a short period. In the facts and

circumstances of the case, we do not think that there was

inordinate delay in disposing of the representation.

It is true that this court in series of decisions has held

that if there is any serious delay in disposal of the

representation, the detention order is liable to be set aside.

Nevertheless, it may be noticed that if the delay is reasonably

explained and that by itself is not sufficient to hold that the

detenue was bad and illegal. In Smt. K. Aruna Kumari Vs.

Government of A.P. & Ors. (1988) 1 SCC 296 relying on

State of U.P. Vs. Zavad Zama Khan (1984) 3 SCC 505 this

Court held that there is no right in favour of the detenue to get

his successive representations based on the same grounds

rejected earlier to be formally disposed of again and also

pointed out that in any event no period of limitation is fixed

for disposal of an application.

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In Union of India Vs. Paul Manickam & Anr. 2003(8)

SCC 342 this Court deprecated the practice of sending

representations to various authorities which were not directly

or immediately concerned with the detention, and delay, if

any, in disposing of such representations shall not be taken

advantage of by the detenue. In the present case also, all the

representations were not addressed to the concerned

authorities.

As regards delay in disposing of the representation, this

Court, as early as 1981 observed in Ummu Saleema case

(supra) that there cannot be any fixed time and the delay, if

any, in disposal of the representation is to be considered vis-

`-vis any prejudice that may be caused to the detenue. In

Para 7 of the said judgment the following observations were

made:-

"Another submission of the learned counsel

was that there was considerable delay in the

disposal of the representation by the

detaining authority and this was sufficient to

vitiate the detention. The learned counsel

submitted that the detaining authority was

under an obligation to adequately explain

each day's delay and our attention was

invited to the decisions in Pritam Nath Hoon

v. Union of India and in Shanker Raju Shetty

v. Union of India. We do not doubt that the

representation made by the detenu has to be

considered by the detaining authority with

the utmost expedition but as observed by one

of us in Frances Coralie Mullin v. W.C.

Khambra "the time imperative can never be

absolute or obsessive". The occasional

observations made by this Court that each

day's delay in dealing with the representation

must be adequately explained are meant to

emphasise the expedition with which the

representation must be considered and not

that it is a magical formula, the slightest

breach of which must result in the release of

the detenu. Law deals with the facts of life. In

law, as in life, there are no invariable

absolutes. Neither life nor law can be reduced

to mere but despotic formulae."

Considering the entire facts, we do not think that in this

case the detention is liable to be quashed on the ground that

one out of the five representations was not disposed of in time.

The delay has been satisfactorily explained and the failure to

get the translated copy of the representation was an

unavoidable delay. We do emphasise that such delays should

be avoided.

The contention raised by the appellant's learned Counsel

is that some of the relevant materials were not placed

before the detaining authority and the omission to place those

materials before the detaining authority had caused serious

prejudice to the detenue. It was urged that the investigating

authorities had collected the materials and once these

materials were received by the sponsoring authority, they had

no right to edit and decide which materials were relevant and

they were bound to send the entire materials to the detaining

authority. The learned Counsel for the appellant drew our

attention to some of the relevant documents which were not

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placed before the detaining authority. This contention was

elaborately considered by the Division bench and it was held

that all relevant materials were placed before the detaining

authority.

The contention of the appellant is that the reply of N.C.

Rangesh and several other documents were not placed before

the detaining authority and the satisfaction arrived at by the

detaining authority was incorrect and the detention was

illegal. It was contended that the sponsoring authority did not

place the statements of N.C. Rangesh and another Rajoo

which are relevant and vital documents, in passing of the

detention order. It may be noted that in the reply of N.C.

Rangesh, he has stated that he is a lawyer in Singapore and

that the detenue had taken legal assistance and that he was

not obliged to reveal the materials as they were confidential

communications. Therefore, it is clear that the statement of

N.C.Rangesh was of no consequence and the sponsoring

authority rightly withheld the same as it was irrelevant.

Moreover, the detention order itself is passed on various

grounds and even if some materials are not placed therefore

the detaining authority, it would only affect one of the grounds

stated in the detention order and the detention order by itself

is sufficient to stand on its own on the basis of other grounds.

The detention as a whole cannot be held to be illegal. If there

are severable grounds, the vague nature of one of the grounds

would not vitiate the entire detention order.

In Ahmad Nassar Vs. State of Tamil Nadu (1999) 8 SCC

473, referring to the cases of Ashadevi Vs. K. Shivraj, Addl.

Chief Secy. to the Govt. of Gujarat (1979) 1 SCC 222; Ayya

Vs. State of U.P. (1989) 1 SCC 374; Sita Ram Somani Vs.

State of Rajasthan (1986) 2 SCC 86, this Court held:

"A man is to be detained in the prison based on the

subjective satisfaction of the detaining authority.

Every conceivable material which is relevant and

vital which may have a bearing on the issue should

be placed before the detaining authority. The

sponsoring authority should not keep it back, based

on his interpretation that it would not be of any

help to a prospective detenue. The decision is not

to be made by the sponsoring authority. The law on

the subject is well settled; a detention order vitiates

if any relevant document is not placed before the

detaining authority which reasonably could effect

his decision."

In the instant case, the statement of Rangesh did not

divulge any details which would have in any way affected the

decision of the detaining authority.

The learned Counsel for the appellant lastly contended

that since the detention order was passed only in February

1996, that is, after about two years of the alleged involvement

of the detenue for violation of the provisions of FERA on the

basis of stale materials, the same was illegal. The allegations

made against the detenue are of serious nature. It involved

several crores of rupees. The various transactions had been

done in a clandestine manner with the help of foreign

nationals and the detenue himself had claimed to be a Non-

Resident Indian. All these materials had contributed to the

delay and the detaining authority had to consider these

materials and cross-check the transactions. It was submitted

by the learned Counsel for the respondent that the detention

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order was not passed on stale materials.

The learned Counsel for the appellant had urged before

the High Court that the detenue was a non-resident Indian

and, therefore, the detention order could not have been passed

against him. This contention was elaborately considered in

point no. 1 in the impugned judgment and it was held that the

detenue was not a Non-resident Indian. No materials have

been placed before us to prove that he was a Non-resident

Indian and therefore beyond the ken of the provisions of

COFEPOSA Act. The order of detention was rightly passed

and we find no reason to interfere with the impugned

judgment.

The criminal appeal is without any merits and is

accordingly dismissed.