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CASE NO.: Appeal (crl.)  533 of 2007

PETITIONER: Mukesh Tikaji Bora

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 11/04/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 533 OF 2007 (Arising out of SLP (Crl.) No.3770 of 2006)

Dr. ARIJIT PASAYAT, J.

Leave granted.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Bombay High Court dismissing the  Habeas Corpus Petition filed by the appellant. In the writ  petition challenge was to the order of  detention dated 27th  August, 1998 passed under Section 3(1) of the Conservation of   Foreign Exchange & Prevention of Smuggling Activities Act,  1974 (in short the ’COFEPOSA’) in respect of one Bherchand  Tikaji Bora alias Bharat alias Bhermal alias Dimple alias  Dhayabhai (hereinafter referred to as the ’detenu’).

The appellant had filed the writ petition challenging the  detention of his brother-Bherchand Tikaji Bora the ’detenu.

Though several grounds were urged in support of the  writ petition at the time of hearing only two grounds were  urged. Firstly (a) with reference to the facts given in grounds of  challenge 1(a) to 1(f) it was argued that when the detenu was  exonerated fully in the adjudicating proceeding, then there  was no necessity of passing any detention order and (b) this  aspect of exoneration of the detenu in the adjudicating  proceedings should have been taken note of by the detaining  authority.   

The aforesaid two statements were made on the basis of  following position.   

The Enforcement Directorate, Mumbai carried out certain  search of the residential premises of one Pravin Popatlal Shah  under Section 37 of the Foreign Exchange and Regulation Act,  1973 (in short the ’FERA’).  On 16.1.1997 residence of detenu  was searched by some officers of the same Directorate.  Then  detention order dated 27.8.1998 was passed.  The show cause  notice was given to the detenu on 18.1.1999 for contravention  of the provisions of Section 9(1)(a) of the FERA.  The Detenu  submitted his written explanation on 30.3.1999 and   adjudication order dated 29.11.1999 was passed by the

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Special Director of Enforcement.

The High Court analysed the position of law laid down by  this Court in several cases and held that it was not a case of  unexplained delay in execution of the order of detention.   Further the exoneration in the adjudication proceedings  cannot be a ground to nullify the order of detention.   Accordingly the writ petition was dismissed.

       In support of the appeal learned counsel for the appellant  in addition to what was urged before the High Court submitted  that certain documents which had relevance were not supplied  to the detenu and he was, therefore, not in a position to make  an effective representation. The detention order had also been  challenged on the ground that the confessional statement of  the detenu was retracted subsequently on 15.7.1994 and  hence original confession allegedly made on 13.7.1994 could  not have been used.          Learned counsel for the respondent on the other hand  submitted that not only the original statement but the so  called retraction was duly taken note of by the detaining  authority.  The said Authority referred to the retraction and  after its consideration felt that order of detention was  necessary.   

At this juncture it would be appropriate to take note of  what was stated by this Court in Sadhu Roy v. The State of  West Bengal [1975(1) SCC 660].  In that case final police  report terminated the criminal proceedings.  The question was  whether in such an event order of detention can be passed.   This Court inter alia observed as follows:

xxx                     xxx                             xxx "What is the impact of a discharge of the  accused by the criminal court based on police  reports on the validity of the detention order  against the same person based on the same  charge in the context of a contention of a non- application of the authority’s mind?

xxx                     xxx                     xxx

The discharge or acquittal by a criminal  court is not necessarily a bar to preventive  detention on the same facts for "security"  purposes.  But if such discharge or acquittal  proceeds on the footing that the charge if false  or baseless, preventive detention on the same  condemned facts may be vulnerable on the  ground that the power under the MISA has  been exercised in a malafide or colourable  manner."

In Bhawarlal Ganeshmalji v. The State of Tamil Nadu and  Anr. [AIR 1979 SC 541] it was observed that where the delay is  not only adequately explained but is found to be the result of  recalcitrant and refractory conduct of the detenu in evading  arrest, there is warrant to consider the ’link’  not snapped but  strengthened.   

In the instant case the materials placed by the  respondents on record clearly show that all possible efforts  were made to take the detenu to custody but he successfully  managed to evade.  Ultimately proclamation was issued under

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Section 7 (1) (b) of the COFEPOSA.   

Another point which was emphatically urged was that  new ground which exists should be taken into consideration.   It is stated that though period of detention may be over in  order to avoid civil liability that may be permitted to be urged.   Specific reference in this regards is made to Annexures P-10 to  P-14 which are stated to be vital and material documents.   Two of them are the original statement of confession and the  subsequent retraction and the show cause notice dated  3.7.1995 issued to the detenu by dispensing authority and  replies dated 18.12.1995 and 17.1.1996 filed by the detenu  stating that he was not ’Dimple’.

Though there can be no quarrel with the preposition that  in some cases new grounds can be permitted to be urged but  the factual background here is different.  In Adishwar Jain  v.  Union of India & Anr. (2006(10 )SCALE 553) it was observed  inter alia as follows:

"Although learned Additional Solicitor General  may be correct in his submissions but  ordinarily we should not exercise our  discretionary jurisdiction under Article 136 of  the Constitution of India by allowing  Appellant to raise new grounds but, in our  opinion, we may have to do so as an order of  detention may have to be considered from a  different angle.  It may be true that the period  of detention is over.  It may further be true  that Appellant had remained in detention for  the entire period but it is one thing to say that  the writ of Habeas Corpus in this  circumstances cannot issue but it is another  thing to say that an order of detention is  required to be quashed so as to enable the  detainee to avoid his civil liabilities under  SAFEMA as also protect his own reputation.

It is a trite law that all documents which are  not material are not necessary to be supplied.   What is necessary to be supplied is the  relevant and the material documents, but,  thus, all relevant documents must be  supplied so as to enable the detenue to make  an effective representation which is his  fundamental right under Article 22(5) of the  Constitution of India.  Right to make an  effective representation is also a statutory  right. (See: Sunila Jain v. Union of India and  Anr. [2006 (3) SCC 321])"

Though in that case it was noted that some relevant  documents were not supplied, in the instant case the position  is not so.  No arguments were advanced before the High Court  relating to these documents though they were a part of the  record before the High Court.  The first order of detention and  the grounds of detention were served on 23.11.2005.  The writ  petition was filed on 2.12.2005 under Article 226 of the  Constitution of India, 1950 (in short the ’Constitution’) for  setting aside the order of detention. In March, 2006, Writ  Petition (Criminal) No. 146 of 2006 was filed under Article 32  of the Constitution for quashing and setting aside the order of  detention during the pendency of Writ Petition (Criminal) No.  2930 of 2005 before the Bombay High Court.  On 26.6.2006,

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this Court disposed of the petition under Article 32 of the  Constitution directing the High Court to dispose of the matter  within a period of one month and that is how the impugned  order dated 6.7.2006 was passed. Looked at from any angle  the order of the High Court does not suffer from any infirmity  and the appeal deserves dismissal which we direct.