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CASE NO.: Appeal (crl.)  1074 of 2005

PETITIONER: J. Abdul Hakeem                        

RESPONDENT: State of Tamil Nadu & Ors.       

DATE OF JUDGMENT: 24/08/2005

BENCH: K.G. Balakrishnan & P.P. Naolekar

JUDGMENT: J U D G E M E N T (Arising out of  S.L.P. (Crl.) No.878 of 2005)

P.P. NAOLEKAR, J.

       Leave granted.

       This appeal is preferred by the detenu, appellant  challenging the order of the High Court dated 10th  December 2004 whereby the High Court has confirmed  the order of detention dated 23rd July 2004 made under  the provision of Conservation of Foreign Exchange and  Prevention of Smuggling Activities Act, 1974  (hereinafter to be referred to as "the COFEPOSA Act").   As per the impugned detention order the officers of the  Directorate of Revenue Intelligence, Chennai received  an intelligence on 16.7.2004 to the effect that detenu  was arriving at Anna International Airport, Chennai   from Colombo by Sri Lankan Airlines  Flight UL-123  bringing electronic goods and other items in trade  quantity in order to smuggle the same without payment  of appropriate customs duty.  In pursuance of the  intelligence received, the appellant was intercepted by  the customs authorities on his arrival on 16.7.2004.  A  personal search was conducted by the customs officials  but nothing was found. However, from his personal  baggage and hand baggage, custom officials found  huge quantity of electronic goods valued at  Rs.19,92,200/-.  The said goods were seized.   Appellant was arrested  and he gave a statement  before the officials of the Directorate of Revenue  Intelligence and on the basis of the said material found  on 23.7.2004, an order of detention was issued.  The  appellant was served with the grounds of detention on   27th July 2004.         On 6th August 2004, detenu submitted a  representation to the State and the Central Authority  and, thereafter made representation to the Advisory  Board.  The representation made to the Advisory Board  was rejected on 8.9.2004.  The order of detention was  confirmed on 24.9.2004.  Thereafter, the appellant- detenu preferred a writ petition, challenging the order  of detention which was dismissed by the High Court.   Hence, the present appeal by Special Leave.         Learned counsel for the appellant has submitted  that while passing the order of detention, authorities  concerned made reference of two  seized  passports of  the appellant but copies of the same were not supplied  to the appellant.  The detenu  has a right to be

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furnished along with grounds of detention, copy of the  documents relied upon and if there is failure or even  delay in furnishing those documents, it tantamounts  to  denial of the right to make an effective representation  guaranteed under Article 22 (5) of the Constitution of  India.  Detenu has not been supplied with the copies of  the passports, entries of which have been relied upon  by the detaining  authority for passing the detention  order.  The detention order, therefore suffers with the  non-compliance of the constitutional protection and  thus liable to be quashed.         In the grounds of detention it is said that on  17.7.2004 the detenu gave a statement in his own  hand-writing in Tamil before the Senior Intelligence  Officer, D.R.I., Chennai stating inter alia that he is the  resident of Pudur Village in Sivagangai District.  He  arrived  at Chennai on 16.7.2004  by Sri Lankan  Airlines Flight UL-123; that  he had obtained Passport  bearing No.B-5315177 at Trichi.  From the year 2002,  he has been going abroad to procure electronic and  other goods; that he had gone to Hong Kong and  Singapore  many times; that whenever he returned to  India from abroad, he used to come  through Chennai  Airport only; that while returning to Chennai  from  abroad, he used to bring foreign goods, particularly,  wrist watches; that he used to smuggle the goods  through green channel and sell them outside; that this  time on 14.7.2004 he went by UL-124 flight to Sri  Lanka and from there on 15.7.2004 he went to Hong  Kong; that on 15.7.04 he boarded the flight UL-123 at  7  O’ Clock in the evening  and arrived at Chennai and  while returning, he brought 4 checked-in baggages and  an hand baggage and paid Rs.2000/- towards excess  baggage charges.    Under the  old Passport he  travelled about 23 times to Sri Lanka, 10 times to Hong  Kong via Sri Lanka  and once to Singapore and under  the current Passport he travelled 4 times to Hong Kong  via Sri Lanka.  The authorities examined the value of  the goods brought by the detenu which was in excess  of the declared value and, therefore, the officers seized  those goods. After considering the various  factors and  the legal provisions of the Foreign Trade (Development  & Regulation) Act 1992, The Foreign Trade (Exemption  from Application) Order 1993 and the Customs Act  1996, goods of  foreign origin in trade quantities  brought by the detenu by making false declaration  were valued at Rs.19,92,200/-.  The said goods were   seized and confiscated.  The appellant-detenu is liable  for penal action under Section 112 of the Customs Act  1962 read with Section 11 (1) of the Foreign Trade  (Development & Regulation) Act 1992; that the burden  of proving the licit nature of the watches in trade  quantity seized  from the baggage lies on him; that he  has also admitted that he has been making foreign  travels for bringing foreign goods for sale in India and  that he had made about 23 foreign trips under his old  passport and 4 trips to Hong Kong  via Colombo under  the current passport; that the said passports contain  entries of foreign visits made by him. The bone of  contention of the counsel is based on last two lines of  this ground, that having utilized the passport entries for  issuing a  detention order, the detenu should have  been served with the copies of those documents  although they belong to the detenu-appellant himself.           In the matter of  M. Ahmadkutty  Vs.  Union of

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India & Another (1990) 2 S.C.C. 1, while  considering the provisions of COFEPOSA, this Court said  that the detaining authority are duty bound to afford  the detenu  the earliest opportunity of making the  representation against the order of detention and the  representation to be made effective, the copies of the  documents relied upon by the detaining authorities on  the grounds are necessary to be supplied.  The detenu  has a right to be  furnished with the grounds of  detention along with documents so referred  or relied  upon.  In Paragraph 20 the Court said that it is  immaterial whether the detenu already knew about  their contents or not; it is being a constitutional  imperative for the detaining authority  to give the  documents relied on and referred to in the order of  detention.  Supply of the relevant document which is  made basis for passing the detention order, whether  demand was made for such a document  or not, has to  be given to the detenu as a constitutional safeguard  enshrined in Article 22 (5) of the Constitution of India.           In the latter decision  of this Court , in the  matter of Badhrunnissa Vs. Union of India and  Others (1991) 1 S.C.C. 128, this Court reaffirmed  the right of the detenu to receive  the document which  was taken into consideration by the detaining authority  while formulating the grounds of detention.  The Court  further said  that a duty and obligation is cast on the  detaining authority to supply copies of those documents  in the language known to the detenu; having said, the  Court put a rider; but it is not that non-supply of each  and every document provide a ground for setting aside  the detention order.  It is for the detenu to establish  that the non-supply of copies of the documents has  impaired the detenu’s right to make an effective and  purposeful representation.  The demand made by the  detenu of the document merely on the ground that  there is a reference in the grounds of detention, cannot  vitiate the otherwise legal detention order.  No hard  and fast rule can be laid down in this behalf.  What is  essential is that the detenu must show that the failure  to supply the documents had impaired his right,  however slight or insignificant it may be.         The principle of supply of the material documents  to the detenu was considered by this Court in the  matter of Radhakrishnan Prabhakaran Vs. State of  Tamil Nadu and others (2000) 9 S.C.C. 170.  In  Para 8, this Court has said: "We make it clear that there is no legal  requirement that a copy of every  document mentioned in the order shall  invariably be supplied to the detenu.  What  is important is that copies of only such of  those documents as have been relied on  by the detaining authority for reaching the  satisfaction  that preventive detention of  the detenu is necessary shall be supplied  to him"

       From the aforesaid authorities it is clear that the  detenu has a right to be supplied with the material  documents on which the reliance is placed by the  detaining authority for passing the detention order but  the detention order will not be vitiated, if the document  although referred to in the order is not supplied which  is not relied upon by the detaining authority  for

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forming of its opinion or was made basis for passing  the order of detention.  Crux of the matter lies in  whether the detenue’s right to make a representation  against the order of detention, is hampered by non- supply of the particular document.         In the present case  although the detaining  authority in the grounds of detention had referred to  the passports and the entries made therein for the  foreign trips made by the detenu but that cannot be  said to have been relied upon by the detaining  authority for passing the detention order.  The detenu- appellant has admitted in his statement dated  17.7.2004  which was in his own hand-writing, that he  had an old passport  under which he travelled  23 times  to Sri Lanka out of which 10 visits were made to Hong  Kong via Sri Lanka; that he had traveled once to  Singapore and under the current passport he had  traveled  4 times to Hong Kong via Sri Lanka. It is this  statement of the detenu-appellant made before the   authorities on 17.7.2004, was the basis for passing of  the detention order and reference of the two passports  containing entries of the foreign visits by the detenu is  only a passing reference. The passport entries are not  made the basis of detention order.  The basis is   admission of the foreign visits made by the detenu  in  his statement.  We fail to understand as to how non- supply of copies of the passports of the appellant- detenu prejudicially affect his right to make a proper  representation against the order of detention.  The  non-supply  of copies of  the passports  will not have  the effect of vitiating the detention order.         For the aforesaid reasons, we dismiss the appeal  without any order as to costs.