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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.