Delhi High Court
Harish Kumar vs Union Of India (Uoi) And Ors. on 4 May, 2005
Equivalent citations: 120(2005)DLT78, 2005(82)DRJ602
Author: Manmohan Sarin
Bench: Manmohan Sarin, R.S. Sodhi
JUDGMENT Manmohan Sarin, J.
1. Petitioner Harish Kumar, detenue under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as the COFEPOSA) had filed the present petition through his brother Shri Satish Kumar Mahant, challenging the detention order No.673/26/2002-CUS/VIII dated 14.6.2002, passed by the Joint Secretary, Government of India, under Section 3(1) of COFEPOSA. The said order was served on 5.9.2002. Petitioner Harish Kumar is an IPS officer of 1977 batch. At the relevant time he was holding the post of Director, National Crime Record Bureau (NCRB).
2. For the purpose of disposal of the present writ petition, it is not necessary to go into the allegations of involvement of the petitioner in the offending activities or the grounds for detention. It is also not necessary to go into the petitioner's role in the company in question where his father and wife were directors or on other grounds like non supply of legible copies of documents etc. contained in the writ petition.
3. Mr.Salman Khurshid, Senior Advocate has urged only the ground regarding non consideration of the representation dated 1.10.2002 by the Central Government. This he submits vitiates the detention order being violative of the protection granted under Article 22(5) of the Constitution of India. The petitioner, it appears, made representation dated 23.9.2002, which was duly considered by the Detaining Authority as also by SS, DGCB on behalf of the Central Government and response was sent to the detenue.
4. The controversy in the present writ petition is regarding non consideration by the Central Government of the representation sent by detenue's advocate Mr.R.K.Handoo vide his letter dated 27.9.2002, addressed to the Superintendent, Tihar Jail, Tihar. The said letter is reproduced for facility of reference:-
"R.K.HANDOO, LL.M. Advocate.
Ref: Date: 27.09.2002 The Superintendent, Tihar Jail, Tihar, New Delhi.
Sub: REPRESENTATION IN RESPECT OF SH.HARISH KUMAR, COFEPOSA DETENUE, DETAINED UNDER ORDER NO.673/26/ 2002-CUS/VIII DATED 14.6.2002.
Dear Sir, Sh.Harish Kumar is lodged in your jail under COFEPOSA Order of Detention No.673/26/2002-CUS/VIII DATED 14.6.2002.
Kindly find enclosed seven copies of the representation against his detention prepared on his instructions.
You are kindly requested to get each copy of the representation signed from the detenue Sh.Harish Kumar at the place marked above my signature on last page of each of the copy of the representation and send a copy of each representation to the detaining authority central government and advisory board on the addresses which are mentioned in the grounds of detention a copy of which is available with you.
Thanking you, Yours faithfully, Sd/-
(R.K.HANDOO)
5. The above letter was received by the Jail Superintendent on 30.9.2002 and after getting the representations signed from the detenue, the Jail Superintendent forwarded copies of the representation of the detenue on 3.10.2002 to the following agencies:-
1. Sh. Som Nath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue.
2. Deputy Secretary to the Government of India, Ministry of Finance, Department of Revenue.
3. Chairman, Advisory Board, Hon'ble High Court of Delhi.
4. Deputy Secretary (Home) Government of NCT of Delhi.
5. The Commissioner of Customs, IGIA.
6. It would be seen that the copy of the representation was not sent to the Secretary, Ministry of Finance, Government of India. It is the non consideration by the Central Government of the representation, which the petitioner claims has vitiated the detention order. Petitioner claims that in the letter dated 27.9.2002, petitioner's advocate had requested the Jail Superintendent to forward the representation after signature of the detenue, to the detaining authority, Central Government and Advisory Board. The representation had not been sent to the Central Government and hence was not considered by the latter.
7. The respondent Union admitted in its affidavit that the representation had not been considered on behalf of the Central Government. This was sought to be justified on the plea that the detneue did not address any representation to the appropriate authority of the Central Government for consideration. Detenue also did not desire that his representation should be considered on behalf of Central Government. Such a request was neither made in the letter of detenue's Advocate to the Jail authorities nor by the Jail Superintendent, who forwarded the representation. In the supplementary affidavit filed, the Superintendent, Central Jail, claimed that to the extent the request made in the letter of the Advocate of the detenue were intelligible, the same were followed. It was further claimed that since grounds of detention, wherein provision is made for addressing representations to the Central Government through the Secretary, were not available with Jail authorities, hence the same could not be acted upon.
Learned counsel for the respondent in a vain and futile attempt to justify the non forwarding of the representation to the Central Government by urging that in the request letter there was no comma between the words "detaining authority" and "Central Government" as such it could be read as "detaining authority of the Central Government" to whom the request was forwarded. The said plea does not carry conviction. The letter of request had to be read as a whole and the mere missing of a comma cannot be used to change the substance of the request. Petitioner had specifically requested for sending of the copies of the representation to the authorities mentioned and whose addresses were given in the grounds of detention. In para 104 of grounds of detention, the detenue is advised that he could make representation against the detention to the detaining authority, to the Central Government as well as to the Advisory Board. Para 104 of the grounds of detention further stipulates that representation meant for the Central Government should be addressed to the Secretary, Government of India, Ministry of Finance, Department of Revenue. In case, the Jail Superintendent did not have the "grounds of detention" with him or was not aware of the address to which the representation is to be sent, he could have sought a clarification. In any case due to lapse either of the Jail authorities or the respondent Union resulted in the non consideration of the representation by the Central Government. The petitioner cannot be made to suffer for the same.
8. During the course of proceedings in the writ petition it was mentioned that the said representation dated 1.10.2002, has been subsequently considered by the Secretary, Government of India, on behalf of the Central Government and rejected on 30.1.2003. Writ petition challenging the detention order had been filed as far back as on 25.11.2002. The belated consideration by the Central Government cannot make alive the detention order dated 14.6.2002 which stands vitiated on the ground of non consideration of the representation dated 1.10.2002
9. The legal position in this regard may be briefly noted. In Crl.W. No. 427/95 titled as Fakhruddin Ali v. Union of India and Ors. Division Bench of this Court held that non consideration of the representation by the Central Government under Section 11 of the COFEPOSA amounts to violation of Article 22(5) of the Constitution of India and directed the release of petitioner, if not required in any other case. Similarly in Crl. W. No. 61/95 titled as Shri Surbir Singh v. Union of India and Ors. the Division Bench held that the independent consideration of the representation had to be apart from confirmation under Section 8(f) based on the Advisory Board's report. It was held that petitioner's right under Article 22(5) of the Constitution of India of having his case considered by the Central Government stood violated and release of the petitioner was directed.
10. Learned counsel for the respondent sought to place reliance on Union of India and Anr. v. Sneha Khemka and Anr. reported at JT 2004(2) SC 43. The Supreme Court in the said case was considering the question whether the representation before one authority by the detenue was required to be considered by the other authority? It answered the question in negative holding that such a procedure was not contemplated and would run counter to the Constitutional scheme. The same would entail delay and the detenue has a fundamental right to have his representation considered by the appropriate authority at the earliest opportunity. The cited case would not advance the petitioner's case. Rather in the cited case, the Supreme Court has noted and reiterated the decision of Constitution Bench in Kamlesh Kumar Ishwardas Patel etc. v. Union of India and Ors. reported at JT 1995 (3) SC 639. The said decision also notes that Section 11 of the COFEPOSA vests the Central Government or the State Government, with the power to revoke an order of detention without prejudice to the provisions of General Clauses Act empowering the detaining authority to revoke its order. The Court also observed that each authority was required to apply its mind on the material placed on record and pass an order either rejecting or allowing a representation. The representation of the detenue having regard to clause (5) of Article 22 of the Constitution of India was required to be disposed within a reasonable time. The detenue had constitutional right to make representation which includes the right to obtain appropriate consideration thereof by the authorities to whom it is made.
11. In view of the foregoing discussion, it is held that there has been a failure on the part of respondents to consider within a reasonable time the representation of the petitioner sent vide letter dated 27.9.2002, by the Central Government as required in terms of Section 11 of the COFEPOSA thereby vitiating the detention order dated 14.6.2002 which had been rendered otiose. Held accordingly. As the period of detention is already over and the petitioner is not under detention no direction for release of the petitioner are required to be given.
Writ petition stands disposed of.