Calcutta High Court
Aswini Kumar More And Lily More vs Union Of India & Ors. on 30 July, 1999
Equivalent citations: (1999)3CALLT440(HC)
JUDGMENT N.A. Chowdhury, J.
1. In this application under Article 226 of the Constitution of India, the petitioner, who is the wife of the detenu Aswini Kumar More has challenged the order of detention of her husband, the detenu, passed by the Joint Secretary ot the Government of india, Ministry of Finance, Department of Revenue, being No. F. No. 673/9/99 - CUS VIII dated New Delhi the 27th January 1999 in exercise of the powers conferred by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activites Act, 1974 as amended, hereinafter referred to as COFEPOSA Act, with a view to preventing him from smuggling goods in future. The order of detention and the grounds on which the said order of detention was passed bearing the same date are contained in Annexure "A" to the writ petition.
2. It has been alleged inter alia in the grounds of detention that the documents seized from the residence and offices of the detenu and from other places and the statements of several persons recorded during enquiry of some secret information received by the detaining authority, revealed total evasion of duty by illegal importation and illegal duty-free clearance of copper cathode and RBD of palmolein including misdeclaration of value amounting to more than Rs. 4.5 crores (approx) and the imports were done in the names of fictitious firms under bogus advance licences, and benami accounts were opened in various Banks for realising the domestic sale-proceeds of the goods illegally imported and sending remittances abroard against those imports by abusing the scheme of import through DEEC scheme and misdeclaration of value of imported goods by deliberate and conscious involvement of the detenu by various acts and ommlssions contained in detail in the grounds of detention.
3. The detenu made three separate representations, one dated 2.3.99 addressed to the Joint Secretary to the Government of india, the second dated 5.3.99 addressed to the Secretary to the Government of india and the third dated 8.3.99 addressed to the Hon'ble Chairman. COFEPOSA Advisory Board as per paragraph 52 contained in the grounds of detention. The said three representations are annexed as annexures "B", ~C" and "D" to the writ petition. Out of those three representations it is stated in the writ petition that the first and the second were considered and rejected by the authorities with unexplained delay but the detenu did not receive any communication regarding his third representation, annexure "D" to the writ petition. However the learned counsel for the Respondent showed the order of rejection of the third representation also by the Hon'ble Chairman. COFEPOSA Advisory Board but no affidavit has been filed on behalf of the Respondent in support thereof.
4. Mr. Pradip Kumar Ghosh. learned senior Advocate, appearing on behalf of the petitioner, however, does not challenge the merits of the order and grounds of detention although the allegations contained in the grounds of detention against the detenu have been denied. Mr. Ghosh challenges the order of detention mainly for violation of constititutional safeguards under Article 22(5) of the Constitution of india and the statutory safeguards under section 3(3) of the COFEPOSA available to the detenu, for which, he contends, the order of detention, is liable to be set aside.
5. Mr. Ghosh's challenge to the order of detention may be considered under the following five heads:
i) Non-supply of documents.
ii) Non-supply of documents pari passu with the grounds of deten tion.
iii) Supply of documents in the language not known to the detenu.
iv) Supply of illegible documents.
v) Delay in consideration of the representations.
vi) Delay in passing the order of detention.
6. Emphasing the need for supply of document in this particular case, it is submitted that the detenu in this case being a resident of Calcutta and the allegations contained in the grounds mainly being related to Calcutta, it is obvious that the satisfaction of the detaining Authority who is in Delhi, for passing the order of detention, was based on the documents placed before him and as such it is mandatory and incumbent on the part of the Detaining Authority to provide legible, and full copies of all the documents relied on by the detaining Authority for passing the impugned order of detention.
7. In this connection the learned counsel for the petitioner drew the attention of this Court to the decision (Kamala Kanyalal Khusalani, v. State of Maharashtra). In paragraph 2 of that decision the apex court referred to a decision (Icchu Devi Choraria v. Union of India) in which Bhagawati J. speaking for the court at 539-40 (Para 6) inter alia observed as follows:
"Now it is obvious that when clause (5) of Article 22 and sub-sectlon(3) of of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within 5 or 15 days as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnised to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause(6) of Article 22 in order to constitute compliance with clause(5) of Article 22 and section 3, sub-section(3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu at the earliest opportunity to make a representation against his detention and 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. There can therefore be no doubt that a proper construction of clause{5) of Article 22 read with section 3, sub-section(3) of the COFEPOSA Act it is nesecssary for the valid continuance of the detention that subject to clause (6) of the Article 22, copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than 5 days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention. If this requirement of clause(5) of Article 22(5) read with section 3, sub-section(3) is not satisfied the continued detention of the detenu would be illegal and void."
8. It is further contended that the aforesaid observation of Bhagwati J. has been made absolutely clear by a later decision of the apex Court in Shalini Soni case wherein endorsing the aforesaid observation of Bhagwati J. In Icchu Devi case it has been observed as follows:
"The matter may also be looked at from the point of view of second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, all the inferences of fact but of all the factual material which have led to the inferences of fact. if the detenu is not to be so informed, the opportunity so solemnly granted by the constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The "grounds" must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds".
9. It appears from the averments in paragraph 3 of the writ petition that the order of detention dated 27th January, 1999 was served on the detenu on 19th February 1999 along with the grounds of detention without the documents as required to be served along with the grounds of detention.
10. In paragraph 4 of the writ petition it has been specifically stated that some documents relied upon in the grounds of detention were served upon the detenu in a piecemeal manner later on e.g. pages 1 to 260 of the documents were served upon the detenu on 28th February 1999, pages 261 to 534 were given to the detenu on 21st February 1999, pages 535 to 1036, 1038 and 1040 to 1070 were served on the detenu on 22nd February 1999, pages 1037 and 1039 were served on the detenu of 26tli February 1999 and acknowledgement of receipt on each page of the document bearing the date of receipt was obtained by the officers of the Directorate of Revenue intelligence. True copies of those documents are annexed to the writ petition as annexure "X" and included in Parts II, III and IV of the writ petition.
11. It appears fron the affidavit-in-opposition on behalf of the respondent Nos. 1 and 2 that in paragraph 5 therein it has been stated that the grounds of detention were served upon the detenu and all those documents which have been relied upon were supplied and served upon the detenu by 22.2.1999 i.e. within 5 days from the date of detention and it has been further stated in paragraph 6 of the Affidavit-in-opposition that the detenu has deliberately and mischieviously put the wrong date 26.2.99 at page 1039 as the report of the Superintendent, Presidency Jail which is annexure 'A' to the Affidavit-in-opposition shows that the documents relied upon have been served upon the detenu on 2O.2.99, 21.2.99 and 22.2.99 only.
12. Regarding the documents served on the detenu it is further contended on behalf of the petitioner that besides the documents served being incomplete in as much as all documents relied on by the detaining authority for the purpose of satisfaction of issuing the order of detention as appear from the grounds of detention depriving the detenu of his constitutional and statutory right of making an effective and purposeful representation as required in law, some of the documents were illegible and some of the documents were in Hindi but the detenu has no working knowledge in Hindi and he knows only English and Bengali but no translation of those documents in English was given to the detenu and as such the detenu was deprived of his right for making an effective and purposeful representation.
13. In pragraph 6 of the writ petition it has been stated that six statements, e,g, (a) statement of Sri S. Sharma dated 24.5.98, (b) statement of Sri Om Prakash Bansal dated 6th April, {c} statement of Rajkumar Mundhra (b) statement of Sri Vikram Singh dated 26.3.98 and (e) statement of Sri MonouJ Kumar in Hindi were given to the detenu in Hindi of which the translations in English were not given to the detenu inspite-of demand for translations of those documents in English which amounted to non-communication of those documents to the detenu.
14. In the Affidavit-in-opposition on behalf of the Respondents to the said allegation in paragraph 7 it has not been denied that the copies of those statments served on the detenu were not in Hindi or the translations of those documents in English were given to the detenu but it has been stated that it is absolutely false that the detenu has no working knowledgte in Hindi.
15. Referring to paragraph 7 of the writ petition it is submitted on behalf of the petitioner that five pages, e.g. pages 213,214,217 and 219 of the copies of documents served on the detenu were illegible and supply of such illegible documents amounted to non-communication of those documents depriving the detenu of making effective and purposeful representation.
16. The said allegation of supply of illegible copies has been dealt with in paragraph 8 of the Affidavit-in-opposition in which the allegation has been denied and it has been further stated that assuming without however admitting that those 5 pages are not clear that cannot be ground for depriving the detenu from making an effective and purposeful representation particularly because those 5 pages are of standard formats and do indicate the relevant information for the purpose of making effective representation.
17. We have looked into those five pages and found that pages Nos. 214. 216, 217 and 219 of the copies served on the detenu contained in Vol II of annexure "X" to the the writ petition are absolutely illegible and cannot be deciphered at all.
18. It is next contended on behalf of the petitioner with reference to paragraph 8 of the writ petition that the following documents relied upon in the grounds of detention have not been communicated to the detenu.
i) copies of 48 out of 60 Sale Bills of M/s. Associated industries mentioned in item No.l of Panchanama (only 12 pages given).
ii) Copies of 76 pages Transport vouchers out of 80 pages (only 4 pages given).
iii) 849 pages out of 850 pages of Import invoices and relevant shipping documents as per panchanama (only 1 page given.)
iv) No document showing that the firms M/s. More international, M/s, Mere international, M/s. M.K. Exports Imports, M/s. Uniexcel international Ltd., M/s Hindustan National Bag & Burlap Ltd. and M/s. R.K. Exportes were the firms controlled by the detenu or the above firms did the busisness of trading of plastic raw material, brass scrap. RDB palmolein.
19. The said allegations have been dealt with in paragraph 9 of the Affidavit-in-opposition wherein it has been stated that all those documents which had been considered relevant and relied upon by the Detaining Authority were supplied to the detenu.
20. Referring to paragraphs 9 and 10 of the writ petition it is further submitted that in respect of High Sea sale contracts relied on by the Detaining Authority in paragraph 15(iii) of the grounds of detention the detenu did not get the copies of the alleged High Sea sale agreements between M/s. Associated industries and M/s. Uniexcel international Ltd. and the detenu also did not get the copy of the invoices allegedly seized from the office of the detenu in the names of M/s. More Overseas, and M/s Uniexcel international except one invoice of M/s. More international inspite of demands, depriving the detenu from making an effective and purposeful representation.
21. The allegations in paragraphs 9 and 10 of the writ petition have been dealt with in paragraph 9 of the Affidavit-in-opposition wherein it has been stated that since the transctions entered into by the detenu through his alleged various companies bearing alleged different names were all of similar character and repetitive in nature and therefore only a specimen document in support of the said illegal transaction has been supplied to the detenu indicating the nature of the transactions entered into by him.
22. Referring to paragraph 11 of the writ petition it is submitted on behalf of the petitioner that it has been stated in paragraph 15(vi) of the grounds of detention that the port of registration in the 4 Advance Licences and Duty Exemption Entitilement Certificate, DEEC for short, was Calcutta but the copy of the DEEC was not supplied to the detenu.
23. The said allegation has been dealt with in paragraph 11 of the Affidavit-in-opposition in which the non-supply of DEEC has not been denied but it has been stated that advance Licence supplied to the detenu contains al! necessary ingredients of DEEC.
24. Referring to paragraph 12 of the writ petition it is submitted that the copy of Transfer Release Advice. TRA for short, bearing No. 532E/1826/97 dated 12.12.97 for US$ 7,89365.50 alleged to be forged was not given to the detenu and in paragraph 12 of the Affidavit-in-opposition it has been stated that the copy had been given to the detenu but it contained typographical error at page 217. However it appears that the said page is illegible.
25. Referring to paragraph 13 of the writ petition it is submitted that correspondence with the Transporter M/s. M.R. Shah of the Detenu drawing adverse presumption against him has not been supplied to him and in paragraph 13 of the Affidavit-in-opposition the allegation has not been denied.
26. Referring to paragraph 14 of the writ petition and the grounds of detention, it is submitted by the learned counsel on behalf of the petitioner that from the grounds of detention, it is clear that the Detaining Authority relied upon all the seized documents but the copies of the documents seized as mentioned in the panchanama dated 25th/26th March, 1998 have not been supplied to him inspite of his request in his representation to furnish the same and in paragraph 14 of the Affidavit-in-opposition it has been stated that the documents mentioned in the panchanama considered relevant and relied upon have been supplied to the detenu and thus the detenu has been deprived of making his effective representation.
27. Referring to paragraph 15 of the writ petition and paragraph 21 and 22 of the grounds of detention it is submitted similarly of non-supply of some documents mentioned in the paragraph but in paragraph 15 of the Affidavit-in-opposition in respect thereof it has been stated that the allegations contained therein can only be revealed through investigation and not simply relying on documents.
28. Referring to paragraph 16 of the writ petition and paragraph 11 of the grounds of detention it is submitted that there is no material in the said ground from which it can be inferred that 6700 mts. were released under the duty-free licence and accordingly such nature of ground shows total non-application of mind on the part of the Detaining Authority in passing the order of detention and in the Affidavit-in-opposition to the corresponding paragraph it has been Stated that it is a minor error and does not prevent the detenu from making effective representation.
29. In the similar way, learned Advocate for the petitioner has drawn the attention of this court to the later paragraphs upto paragraph 25 of the writ petition and also to the corresponding paragraphs in the Affidavit-in-opposition indicating non-supply of documents as required in law preventing the detenu from making effective representation. It is submitted that there is no categorical denial of non-supply of those documents on the part of the Respondents but only an attempt has been made in the Affidavit-in-opposition to Justify that the non-supply of those documents cannot prevent the detenu from making effective representation and as such the order of detention is not liable to be set aside on that ground.
30. Mr. Ghosh, specifcally submitted that the following document referred to in grounds of detention amongst others were not supplied to the detenu preventing him from exercising his constitutional right under Article 22(5) of the Constitution of india and statutory rights under section 3(3) of the COFEPOSA Act. Those documents may be shortly described with refernce to the grounds of detention as follows :-
Sl. No. Nature of documents Paragraph No. Referred to in the grounds of detention.
(i) High Sea contract between Associated Industries and Uniexcel International.
15(iii)
(ii) Invoices of More Overseas Hinduthan Bag. Uniexcel which are alleged to be certain.
15(iii)
(iii) DEEC Books 15(iv)
(iv) T.R.A. No. 532/E/S26/97 dated 12.12.97.
15(vi)(vii)(ix) and (xii)
(v) Correspondence with M/s. M.R. Shah.
16(vi) Bill of Entry No. F-8975.
15(1)
(vii) Demand Draft Nos.
21(viii) Statement of Account of M/s. Associated Industries.
21(ix) Demand Draft received at Hindusthan Lever.
22(x) Enquiry report from Karnataka Bank.
22(xi) Bank guarantee.
40(xii) Commercial invoices of three firms, Hindusthan Agency, Amby Agency & Raj as than Enterprises.
39(xiii) Letter seized along with draft of Rs. 3,55,750/-.
6(xiv) Bulk of the documents supplied are truncated amounting to non-supply.
(a) BILL OF ENTRY at pages 186 to 201 (truncated)
(b) Pages 462 to 463, 466 to 476, 485 to 495, 508, 509, 514 & 515. (only one side of these pages are supplied, Reverse containing important materials such as declaration made by the clearance order etc. not given).
(c) Reverse of TRA at page 222 not given:
(d) Reverse of Licence No. 2003380 (pages 216 & 219) not given.
(xv) Document of More International., M. K. Export, Uniexcel Hindusthan National, R.K. Export showing.
(i) those firms carried on business from the same place.
(ii) those firms were controlled by the detenu.
(iii) Documents and files showing import of domestic sale of R.B.D. Palmolein.
(a) Sale bills to various buyers. .....
9 (xvi) Bail order passed by the C.J.M. Bhuj. ..... 43
31. In support of his aforesaid submission, learned Counsel for the petitioner referred to paragraph 9 of the judgement of the apex court (Ibrahim Ahmed Batli v. State of Gujarat) which reads as follows:-
"Two more decisions of this Court in the context of the obligation to supply cocuments, statements and other materials referred to in the grounds of detention may be noted. In Kamala Kanyalal Khuslani case and Sunil Dutta case this Court has taken the view that all the documents, statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention must be served upon the detenu along with the grounds. The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made the same being ex-hypothesi in existence at the time of issuance of the detention order and framing of the grounds, were not supplied to the detenu along with the grounds and consequently the detenu was prevented from making effective representation against his detention, the continued detention of the detenu would be illegal in as nuch as such non-supply of documents, statements and materials along with the grounds of detention amounted to a violation of the safeguard available to the detenu under Article 22(5)".
32. Mr. Ghosh also cited the decisions reported in (1) 1996 Cr. LJ 579 (Tapas Chowdhury v. Union of india) (ii) (Kirit Kumar v. Union of India) {ill) (Nafisa Khalifa Ghenom v. Union of India) (iv) 1987 (Suppl.) SCC 576 (Nandagopal Saha v. Union of India.) (v) 1998 Cr. LJ 974 (Amit Kumar Agarwal v. Union of india.) (vi) (Md. Alam v. State of West Bengal.) (vii) 1998(1) Cr. LJ 333 (Naina Jain v. Union of india) in support of his submissions.
33. In the case of Tapas Chowdhury v. Union of India (supra) a Division Bench of this court at paragraph 12 referred to the decision (Mehrunissa v. State of Maharashtra) wherein it was held by the apex court that it was hardly an answer of the part of the detaining Authority that the copies of the documents were not supplied to the detenu as the detenu was already aware of the contents of the documents.
34. "Another decision of the apex court (Mohd. Zakir v. Delhi Administration) was also referred to wherein it was held by the apex Court that "the question of demanding the documents is wholly irrelevant because it fs the constitutional mandate which required the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation Immediately instead of waiting for the documents to be supplied with".
35. In the case of Kirit Kumar v. Union of india it was held that it is not open to the court to have waded thorugh the confidential file of the Government in order to fish out a point against the detenu and the question of relevance of the documents (mentioned in the grounds of detention) was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected. It was further held that there is no particular charm in the expression "relied on", "referred to" or "based on" because ultimately all these expressions signify one thing, namely that the subjective statisfactlon of the detaining Authority has been arrived at on the documents mentioned in the gorunds of detention and the question whether the grounds have been referred to, relied on or based on is merely a matter of describing the nature of the grounds.
36. In the decision reported in 1998 Cr LJ 974 (Amit Kumar Agarwal v. Union of india) it has been held by a Division Bench of this court at paragraph 22 that in the case in which the detaining Authority had formed his opnion on the basis of certain documents. It was imperative on the part of the detaining Authority to supply legible copies of all such documents which formed part of the ground for detention.
37. It is further submitted that out of the documents mentioned in serial Nos. 1 to 16 above, there is no answer in the Affidavit- in-opposition regarding the documents mentioned in serial Nos. 3,4,5,6,7,8,9,10,11,12,13,14,15 and 16 and regarding the documents mentioned in serial Nos. 1,2, and, 12 only specimen copies were given and it is contended on behalf of the Respondents that the documents mentioned therein are identical in nature and only the particulars given therein are different and as such only the specimen copies were given. It may be mentioned that Mr. S. B. Mukherjee learned counsel appearing on behalf of the Respondent submitted also that all the documents in respect of at least one transaction nan ely R. B. D. Palmolein has been furnished and specimen copies of identical document relating to the other transactions have been furnished. It is further submitted that the detenu was in possession of all the documents furnished along with the show cause notice and the same documents were relied upon for passing the order of detention and as such non-supply of those documents with the order of detention cannot prejudice the detenu in any way or prevent the detenu form effective representation.
38. Regarding the submission on behalf of the petitioner that all the documents relied on by the detaining Authority in passing the order of detention must be given to the detenu pari passu with the order of detention, learned counsel for the petitioner referred to paragraph 20 of 1990(2) SCC 13 (M. Ahmed Kutty v. Union of India) which reads as follows :
"It is Material whether the detenu already knew about their contents or not. In Mehru.nn.issa v. State of Maharashtra) it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure-list was held to be fatal. To appreciate this point one has to hear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakirv. Delhi Administration it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu with the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguard enshrined in Article 22(5)".
39. Against the said submission it is submitted by the learned counsel for the Respondent that all the documents were served within 5 days of service of the order of detention on the detenu and the said delay ws also caused by the detenu himself by taking long time in counting the pages of the copies and putting bis signature and dates and in one page he deliberately put the date 26.2.99 instead of 22.2.99.
40. With respect to the submission on behalf of the petitioner regarding supply of illegible and truncated copies to the detenu and that nowhere it has been stated in the order or grounds of detention or in the Affidavit-in-opposition that only the legible portions of the copies supplied to the detenu were taken into consideration for passing the order of detention and as such the order of detention is liable to be set aside, reference is made to the judgment of a Division Bench of this Hon'ble Court reported in C Cr Lr (Cal) 456 (Kamala Devi Kedia v. Union of india) at page 459 (para 3) wherein following the decision reported in 1996 Cr LJ 579 and other decisions of the apex court referred to in the said Judgment, it has been held that :There is no doubt that the law is well settled that supply of illegible copies of documents relied upon by the Detaining Authority in passing the detention order virtually amonts to non-supply of such documents which vitiates the detention."
41. Regarding the allegation of supply of illegible documents to the detenu, it is submitted on behalf of the Respondent that the documents complained of as illegible are the petitioner's own document some of which are not genuine. It is further submitted that copies had been made from the original documents seized in this case and in any event the main document is legible and there is no scope of any Improvement of the copies to be made legible from seized illegible copies and hence this plea on behalf of the detenu cannot be sustained.
42. In respect of the allegation on behalf of the petitioner regarding delay in disposing of the three representations of the detenu, it is submitted by the learned counsel for the petitioner with reference to paragraph 34 of the writ petition that the detenu made three representations, the first addressed to the Joint Secretary to the Government of india dated 2nd March, 1999 the second addressed to the Secretary, Government of india dated 5th March 1999 and the third dated 8th March, 1999 addressed to the Hon'ble Chairman. COFEPOSA Advisory Board but there has been undue and unexplained delay in disposing of the first and second representation, even assuming that those were disposed on 23.3.99 as stated in paragraph 29 of the Affidavit-in-Opposition. It is futher submitted that the Affidavit-in-opposition is silent about the date of disposal of the 3rd representation and in any event there is no averment in the Affidavit-in-opposition that these were disposed of expeditiously and the dealy has been satisfactorily explained and as such continuation of detention of the detenu is illegal and the detenu is entitled to be released forthwith on this ground.
43. In support of his submission learned counsel for the petitioner referred to paragraph 8 of the Kamala Devi case (supra) wherein it has been mentioned that in the case of Durga Shaw & Ors. , the detention order was quashed for unexplained delay of 16 days only. In the case of Prof. K. Ihocha Singh v. State of Manipur . the Supreme Court quashed the detention order for an unexplained delay of 17 days in disposing of the representation of the detenu. In Kundan Bhai v. District Magisrate, , the Supreme Court quashed the detention for a dealy of 18 days not properly explained in disposing of the representation of the detenu. In Vantt. Mathi v. State of Tamil Nadu , the Supreme Court held an unexplained delay of about three weeks, in disposing of the representation of the detenu, fatal for continued detention.
44. In Vijoy Kumar v. State of Jammu & Kashmir , there was a dealy of 14 days in transit and a time gap of 19 days thereafter in disposing of the representation and the Supreme Court quashed the detention. Considering the aforesaid decisions it was held that it is evident that even an unexplained time-gap of about 16 days in disposing of the representation of the detenu against the order of detention has been treated as fatal to continued detention. It is submitted that in view of the aforesaid decisions the detenu is entitled to be released forthwith. It is specifically emphasised that the silence in the Affidavit-in-opposition regarding the disposal of the 3rd representation has strengthened his submission of non-consideration of the representation if it has been disposed of in the meantime.
45. Mr. Ghosh learned counsel for the petitioner also submitted that the errors in the grounds of detention admitted as minor error in the Affidavit-in-opposition and supply of documents irrelevant to the grounds of detention as mentioned in the writ petition show total non-application of mind of the Detaining Authority in passing the order of detention and as such the order of detention is liable to be struck down by this Hon'ble Court.
46. Mr. S.B. Mukherjee learned Additional Solicitor General, appearing on behalf of the Respondents, referring to the writ petition and the Affidavit-in-opposition, submitted that there is no merit in the writ petition and as such the writ petition is liable to be rejected.
47. Submissions of the learned Additional Sollctor General may be briefly summarised as follows:-
It is submitted that the allegations in the grounds of detention against the detenu are of very grave and serious nature and the very fact the the merit of the allegations, the gravity and seriousness of the economic offences alleged against the detenu have not been challenged justifies that the writ petition should be dismissed by this Hon'ble Court.
48. It is further submitted that the grounds in the writ petition for challenging the order of detention are the concoctions and creations of the detenu in a well planned manner by giving a later date (26.2.99) in stead of 22.2.99 in acknowledging receipt of the documents with the grounds of detention and moving the writ petition before giving reasonable time for consideration of his representations.
49. It is also submitted that the Detaining authority must be given a reasonable time and opportunity to consider the representations of the detenu and in the present case there is no unreasobable delay in consideration and disposal of all the three representations of the detenu. In this connection the learned counsel referred to paragraph 28 of the representation of the detenu dated 2nd March 1999 to the Joint Secretary to the Government of india being annexure "B" to the writ petition at page 109 of the writ petition in which it has been stated that "You are requested to revoke the detention order. if you do not revoke you are requested to supply me all the documents demanded by me in this representation to enable me to make an effective and purposeful representation. You are requested to send a copy of this representation to the Secretary to the Government of india and to the Advisory Board for independent consideration".
50. It is further submitted that in the second representation addressed to the Secretary, Government of india dated 5.3.99, annexure "C" to the writ petition at page 117 paragraph 11 it has been stated that the representation has been made on the additional ground and it has been also stated that "you are requested to supply me the information demanded by me to enable me to make effective and purposeful representation."
51. It is next submitted that the 3rd representation, which bear no date addressed to the Secretary to the Government of india which has been made annexure "C" to the writ petition at paragraphs 15. 16. and 17 at page 122 of the writ petition there is no further request for supply of any other documents and accordingly by that time the detenu received all the documents for making the effective and purposeful representation. It is further submitted that the representations dated 4.3.99 and 5.3.99 were rejected by the authority by order dated 23.3.99 which have been annexed as annexures 'B' and 'C' to the affldavlt-in-opposltion and regarding the 3rd representation the learned counsel produced the order of rejection dated 13th May '99 before this court. Mr. Mukherjee, the learned senior counsel also submitted a list of dates explaining the period of time taken for disposal of those representations to Impress upon this court that all the 3 representations have been disposed of as expedltiously as possible in accordance with law and there is satisfactory reason for the time taken for disposal of all the 3 representations as will appear from the relevant official file and as such the contentions on behalf of the detenu that there was unexplained dealy in disposal of the 3 representations have been sufficiently explained by the list of dates sumitted before this Hon'ble Court. However no supplementary affidavit is filed before this Court regarding the disposed of the 3rd representation or the unexplained dealy in disposal of the representations or in support of the list of dates produced before this Court.
52. It is next submitted that the statements of the detenu is admissible as evidence under section 108 of Customs Act and referred to the statements of the detenu contained in pages 233 to 260 of volume II of the writ petition regarding his non-payment/evasion of customs-duty and smuggling and as an exporter and importer under the name and style of M/s. More Overseas, More international Ltd.. Hindustan National Bag & Burlap Co. Pvt. Ltd. and M/s. Untexcel intenational Pvt. Ltd. Referring to the judgments reported in (1974) 3 All R ER 217 at page 237 (Weller Steiner v. Moir) it is submitted that all those various concerns were used by the detenu as a facade, so that each could be treated as his alter ego. Each was in reality the detenu wearing another hat. Those were just the puppets of the detenu. He controlled their easy movements. Each danced to his bidding. He pulled the strings. They were his agents to do as he commanded and he was the principal behind them and the court should pull aside the corporate veil and treat these concerns as being his creatures for whose doings he should be, and is, responsible. At any rate, it was upto him to show that anyone else had a say in their affairs and he never did so.
53. Attention of the court is also drawn to the order of detention at page 62 of the writ petition and the grounds of detention from page 63 onwards of the writ petition specially to paragraphs 2, 3, 4, 5, 6, 9, 10, 11, 15, 16, 22, 23, 24, 26, 27, and 28 contained therein and the contents in paragraph 15, 16, 22, 23, 24, 26, and 27 are specifically emphasised and submitted that the detenu in collusion with one S. S. Sharma effected the illegal importation and illegal duty-free clearance of RBD palmolein including misdeclaration of value in the name of M/s. Associated industries as detailed in those paragraphs and no arguments have been made on behalf of the detenu in respect of the merit thereof except the bare denial of the allegations contained in those paragraphs.
54. Learned counsel also referred to paragraphs 43, 44, 46, 47, 48, 49, and 50 of the grounds of detention contained in pages 91 to 93 of the writ petition and submitted that no arguments have been advanced regarding the merits of those grounds and it has already been mentioned therein that the Detaining Authority is aware that the detenu is on bail after his arrest at Calcutta on 5.5.98 and adjudication proceedings have been initiated against the detenu under the Customs Act and while passing the detention order the Detaining Authority relied on the documents mentioned in the enclosed list which are also being served on the detenu and the Detaining Authority had carefully gone through the noties on "Palmolein case" along with relevant enclosures submitted on behalf of the detenu on 5.1.99.
55. Referring to section 3(3) of the COFEPOSA Act, Article 22(5) of the Constitution of india it is submitted that all the documents relied upon by the Detaining Authority in passing the order of detention were served within the statutory period of limitation of 5 days on 22.2.99 as the order of detention was served on 19.2.99 as have been stated in paragraph 6 of the Affidavit-in-opposition and anexure "A" thereto and as such it is not correct that the detenu was prevented from making effective representation for non-supply of the documents as alleged and the date 26.2.99 shown as date of receipt of one page 1039 was wrongly and deliberately put in at page 1039 as showing the date of receipt of the page instead of 22.2,99.
56. Referring to pages 1000 and 1002 of the writ petition it is submitted that in reply to the show cause notice acknowledging receipt of documents of about 1000 pages are referred to, indicating that all the documents were served with the show cause notice also and therefore it cannot be said that the detenu was not served with the documents which were required to be served on him and thereby the detenu was prevented from making effective representation against the order of detention.
57. Referring to the chart made on behalf of the petitioner about non-supply of documents mentioned as item Nos. 1 to 16, therein it is submitted on behalf of the Respondents that chart is incorrect and misleading.
58. Regarding item No. 1 of the said chart, alleged non-supply of High Sea contract between Associated industries and Unicedal international and item No. 6 Bill of Entry No. F-8975. of the said chart it is submitted that those are the documents of the detenu himself, and those were given with the show cause notice and there is nothing like High Sea contract. Regarding alleged non-supply of item No. 2 of the said chart e.g. Invoices of More Overseas, Hindustan Bag, Uniexcel, it has been specifically stated in paragraph 10 of the Affidavit-in-opposition that the bulk of the documents are of similar nature and accordingly only a specimen of the samples has been given (vide page 188) of the writ petition, and as such the requirments under Article 22(5) of the Constitution of india were complied with.
59. Regarding the supply of illegible documents contained in pages 214 to 218 of Volume II of the writ petition it is submitted on behalf of the Respondents that those are the annexures to the documents contained in pages 212 & 213 and as such it does not matter whether those documents are legible or illegible and illegibility of those two pages cannot prevent the detenu from making effective and purposeful represention. It is further submitted that those documents are not genuine and are fabricated documents.
60. Regarding non-mentioning of the disposal of the 3rd representation it is submitted that the Affidavit-in-opposition was affirmed on 31st March 1999 and the disposal of the 3rd representation is dated 13th May 1999 and as such the latter fact could not be included in the Affldavit-in-opposition and in any event Advisory Board can make its recommendation and submit report only and cannot pass any order of setting aside or confirming the order of detention on that representation. Producing a list of dates regarding the details of the period of time taken by the Authorities for disposing of the representations, it is submitted that the Authorities must be given minimum reasonable opportunity to consider and pass order on the representation and each case depends upon its facts and circumstances of that particular case and in this case there has been no delay in the facts and circumstances of the case.
61. Regarding non-supply of translated copies in English of the documents in Hindi supplied to the detenu it is submitted that the English translation of the documents in Gujrati language have been given to the detenu but it is denied that the detenu does not know Hindi language and in any event Annexure "A" to the Affidavit-in-opposition shows that all the documents were read over and explained to the detenu and as such it cannot be said that the detenu was prevented from making effective representation for non-supply of the English translations of the documents in Hindi.
62. Mr. S. B. Mukherjee, learned senior counsel on behalf of the Respondents cited a number of decisions of the Hon'ble Apex Court and the High Court in support of his submissions.
63. Referring to Kamala Kedia case it is submitted that the list of dates submitted on behalf of the Respondents clearly establish that the authorities disposed of the representations of the detenu as expeditiously as possible and there is no unexplained delay in disposal of the representations for which the order of detention might have been set aside. In this connection the decision (Madan Lal Anand v. Union of india), has also been referred to wherein it has been held that order of detention cannot be rendered invalid on the ground of delay which has been explained by on behalf of the Respondents. Reference is also made to the decision reported in AIR 1990 SC 2222 wherein it has been held that non-supply of copies of order for ball would not deprive the detenu of his right of making representation and preventive detention depends on the subjective satisfaction of the Detaining Authority that the detenu may indulge in similar activities in future.
64. Regarding the allegation of delay in passing the order of detention the decision reported in 1988 SC 1255 (Rajendra Kumar Natuarlal Singh v. State of Gujarat) is cited wherein it has been held that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 and the delay in complying with the procedural safeguards of Article 22(5) of Constitution. The rule as to unexplained delay in taking action is not inflexible. In case of mere delay in making an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security to the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay is not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining Authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the Impugned order of detention.
65. Regarding non-supply of the translation in English of the documents in Hindi it is submitted that the detenu is only feigning of working knowledge in Hindi and the decision reported in AIR 1986 (Prakash Ch. Mehta v. Commissioner and Secretary Gout of india) (para 62) is referred to wherein it has been held that merely feigning ignorance of Hindi shall not vitiate the order of detention.
66. Regarding the allegations of delay in disposal of the representation, it is submitted that the delay has been properly explained from the list of dates submitted on behalf of the respondents and there is no material to draw inference of inaction or callousness on the part of the authorities and as such the order of detention cannot be set aside on the ground of delay and the decision is referred to in support of this submission.
67. Regarding the non-supply of the bail order passed by the learned Chief Judicial Magistrate. Bhuj. Kucch, it is submitted that the said order has only indirect relation to the grounds of detention and in view of the decision (Abdul Sattar Abdul Kadar Shaik v. Union of india & Ors.) non-supply of such documents would not violate Article 22(5) of the Constitution of india and invalidate the detention.
68. Regarding the allegation of delay in passing the order of detention it is further submitted that having regard to the magnitude of the transaction spread all over the country, namely, Assam. West Bengal. Gujrat, Rajasthan. Delhi and Uttar Pradesh, and the detailed investigation which had to be carried out by the Department and several witnesses had to be examined and thereafter the Authority concerned had to consider all these materials, it cannot be said that there has been any delay which would render the detention order liable to be set aside. In support of this submission Judgments (M. Ahmed Kuttyv. Union of India & Anr) and (Abdu Salem Thiyyan v. Union of india & Ors.) are referred to wherein it has been held that more delay in passing the order of detention will not by itself vitiate detention order when the order was passed after detailed investigation and consideration of the facts.
69. Mr. Mukherjee concluded that in view of the aforesaid facts, circumstances and the proposition of law involved in the case, the writ petition is liable to be dismissed.
70. We have considered all the facts, circumstances and the propositions of law involved in the case as indicated above and we have no hesitation in holding that the detenu was not served with all the documents required to be served on the detenu in accordance with law and thus he was prevented from making effective and purposeful representation against the order of detention as there is no categorical denial in the Affidavit-in-opposition on behalf of the Respondents, of the allegation of non-supply of the documents referred to in paragraphs Nos. 8 to 25 of the writ petition and there is no positive assertion in the Affidavit-in-opposltion that the documents alleged to be not supplied were actually served on the defend. On the contrary there is admission in the Affidavit-in-opposition that some of the documents being of similar nature and character, only specimen copies were given and some of the documents were given to the detenu with the show cause notice given to the detenu earlier and as such were not served with the grounds of detention and there is no averment in the Affidavit-ln-opposition that the documents not supplied to the detenu were not considered in passing the order of detention. Accordingly there has been violation of the constitutional right of the detenu under Article 22(5) of the Constitution of india and statutory right under section 3(3) of the COFEPOSA Act and in view of the decisions of the apex court in [cchu Deui Chonaria case, Shalini Soni case & M. Ahmed Khutty case (supra), the order of detention is liable to be struck down. We also hold that the order of detention is also liable to be set aside for absence of explanation of delay in the Affidavit-in-opposltion in disposing of the representations by the Authority in view of the decision of the apex Court referred to in Kamala Devi Kedia case.
71. Since the writ petition succeeds on the aforesaid two grounds we do not consider it necessary to make any further observation or comment on the other points raised by the parties in this case.
72. In this case it is pertinent to quote the observations of the apex court in paragraphs 18 and 21 of the decision (Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad & Ors.) which are as follows respectively :-
"Turning now to the main question relating to the early disposal of the representation, we may immediately observe that this court, in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention, and in that situation, continued detention would become bad. This has been the consistent view of this Court all along from its decision in SJc. Abdul Karim v. State of W. B.; Durga Shaw, in re; Jayanarayan Sukul v. State of W.B.; Sk. Hanif v. State of W. B.; Raisuddin v. State of U.P.; Frances Coralie Mulliu v. W. C. Khambra; Mohinuddin v. Distt. Magistrate; Rama Dhondu Borade v. V. K. Saraf, Commr. of Police: Aslam Ahmed Zahire Ahmed Shaik v. Union of India: Mahesh Kumar Chauhan v. Union of india, right up to its reiteration in Gazi Khan v. State of Rajasthan."
73. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the "liberty and freedom" to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.
74. In the result we hold that the continued detention of the detenu is bad in law in the facts and circumstances indicated above and the impugned order of detention is liable to be quashed and the same is accordingly quashed and we direct that the detenu Ashwani Kumar More, son of Mohan Kumar More detained in Presidency Jail. Alipur, Calcutta, be released forthwith unless he is required to be detained under any other order of competent court or Authority.
D. P. Sengupta, J.
75. I agree.
76. Petition allowed