TaxTMI 
TaxTMI 
2024 (9) TMI 707
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....he detenu, who was detained pursuant to the order of detention dated 31st August 2023 Hereinafter referred to as "detention order" passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Hereinafter referred to as "COFEPOSA". 2. By order dated 31st of July 2024, this Court allowed the present appeal; quashed and set aside the impugned judgment and order of the High Court dated 4th March 2024 in Writ Petition (Criminal) No.1271 of 2023 so also the order dated 31st August 2023 passed by the Joint Secretary (COFEPOSA), COFEPOSA Unit, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Revenue, Government of India Hereinafter referred to as "Detaining Authority" to the Government of India directing the detention of the detenu and the order dated 28th November 2023 passed by the Under Secretary, COFEPOSA Wing, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India Hereinafter referred to as "Central Government" confirming the detention order of the detenu. We have directed that the detenu be released forthwith, if not required in any other case. The reasons f....
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....2023. 3.7 Being aggrieved by the detention of the detenu, the appellant herein approached the Kerala High Court by way of habeas corpus petition being Writ Petition (Criminal) No. 1271 of 2023. By the impugned judgment and order dated 4th March 2024, the said writ petition came to be rejected. 3.8 Being aggrieved thereby, the appellant has approached this Court by way of present Appeal by special leave. 4. We have heard Shri Gaurav Aggarwal, learned Senior Counsel appearing for the appellant and Shri Nachiketa Joshi, learned Senior Counsel appearing for the respondent(s). 5. Shri Gaurav Aggarwal, learned Senior Counsel, submits that in the present case, the material against the detenu could not have led any reasonable person to come to the conclusion that there was a case made out against the detenu to detain him. The Detaining Authority has not applied his/her mind to the material in proper perspective resulting in an unsustainable order of preventive detention. The learned Senior Counsel in this respect relied on the judgment of this Court in the case of Ameena Begum vs. State of Telangana and others. (2023) 9 SCC 587. 6. Shri Gaurav Aggarwal further submits that a perusal o....
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....h vs. State of Punjab and others (1981) 4 SCC 481; (iii) Vijay Kumar vs. State of Jammu & Kashmir and others (1982) 2 SCC 43; (iv) Aslam Ahmed Zahire Ahmed Shaik vs. Union of India and others (1989) 3 SCC 277; (v) B. Alamelu vs. State of T.N. and others (1995) 1 SCC 306; 8. Shri Gaurav Aggarwal further submits that a perusal of the Memorandum passed by the Central Government rejecting the representation of the detenu would show that there was no real and proper consideration. He submits that no reasons are recorded in the Memorandum and, therefore, it does not reflect that there was a real or proper consideration by the Government. He, therefore, submits that the impugned order is liable to be quashed and set aside. 9. Shri Aggarwal further submits that the High Court has erroneously held that the Detaining Authority could have arrived at its subjective satisfaction even after the statement of said Ms. Preetha Pradeep was eschewed. It is submitted that the statement of Ms. Preetha Pradeep was a pertinent material which, from the perusal of the detention order would reveal, was duly taken into consideration by the Detaining Authority. He, therefore, submits that the High....
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.... of facts and which are not relied upon by the Detaining Authority in making the order of detention. In this respect, he relies on the judgment of this Court in the case of L.M.S. Ummu Saleema vs. B.B. Gujaral (1981) 3 SCC 317. 16. Insofar as the delay in deciding the representation by the Detaining Authority and the Central Government is concerned, Shri Nachiketa Joshi, learned Senior Counsel submits that representations made by the detenu on 27th September 2023 were never received by the Detaining Authority and the Central Government. However, after the notice was issued by this Court in the present matter, the record was called from the Jail Authorities and they decided the representations on 11th June 2024 and 12th June 2024 respectively. He, therefore, submits that there is no delay in deciding the representations by the Detaining Authority or the Central Government. CONSIDERATION 17. Though the detention order is assailed on several grounds, we propose to consider only two grounds, viz., (a) As to whether the non-supply of the statements of Ms. Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitutio....
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....ri) 19: (1981) 1 SCR 682] , Tushar Thakker v. Union of India [(1980) 4 SCC 499: 1981 SCC (Cri) 13] , Lallubhai Jogibhai Patel v. Union of India [(1981) 2 SCC 427: 1981 SCC (Cri) 463] , Kirit Kumar Chaman Lal Kundaliya v. Union of India [(1981) 2 SCC 436: 1981 SCC (Cri) 471] and Ana Carolina D'Souza v. Union of India [1981 Supp SCC 53 (1) : 1982 SCC (Cri) 131 (1)] . 20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709: 1981 SCC (Cri) 592] 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 bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. Delhi Administration [(1982) 3 SCC 216: 1982 SCC (Cri) 695] 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 the grounds of detention, those should be furnished at the earliest so that the detenu could make an effectiv....
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....etitioner was already in jail. 23. It could thus be seen that the said case was not concerned with the issue with regard to non-supply of the material which was relied on by the Detaining Authority in the grounds of detention. As such the said judgment would not be of any assistance to the case of the respondents. 24. Insofar as the reliance on the judgment of this Court in the case of L.M.S. Ummu Saleema (supra) is concerned, the High Court relied on the following observations of this Court: "5. ....It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention." 25. There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not r....
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..... Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be called as relied upon documents. While examining whether nonsupply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced." 30. This Court reiterated that, primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. It has been further held that the documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. 31. In the case of Ranu Bhandari (supra), this Court observed thus: "25. Keeping in mind the fact that of all human rights the right to personal liberty and i....
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....spective of whether he had knowledge of the same or not. These have been recognised by this Court as the minimum safeguards to ensure that preventive detention laws, which are an evil necessity, do not become instruments of oppression in the hands of the authorities concerned or to avoid criminal proceedings which would entail a proper investigation." [ emphasis supplied ] 32. A perusal of the aforesaid judgment would reveal that for emphasizing the importance of personal liberty and individual freedom, this Court has reproduced Joy Adamson's memorable classic Born Free. This Court observed that though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the Courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law. It has been held that when a detention order is passed all the material relied upon by the detaining authority in making such an order must be supplied to the detenu to enable him to make an effective representation. This Court held that this is required in order to comply with the mandate of Article....
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....erala mainly at Chennai; that you were collecting foreign currencies from your customers and clients without obtaining KYC details, licenses and no invoices were generated against receipts of foreign currency; that you are doing these illegal activities on behalf of various Foreign Exchange Racketeers; that you were only concerned about the commissions which you received from such illegal activities; that the most part of your income was generated out of these illegal transactions by way of purchase and sale of illegally collected foreign currencies from NRIs and other forex dealers mainly from Suresh Babu at Kottayam, who was also operating the unaccounted foreign currency business. iii. Further, Shri Suresh Babu in his statement recorded on 07.07.2023 also admitted having illegal foreign currency dealings with Shri Shaji A.K. i.e. you. Furthermore, corroborative evidences in respect of illegal foreign exchange transactions between Shri Suresh Babu and Shri Shaji A.K. i.e. you have been recovered by way of analysis of WhatsApp chat, voice calls and images recovered from Shri Shaji A.K.'s i.e. your mobile which was seized during search. Shri Suresh Babu in his statement reco....
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....hat this will be given to Khader's shop or you will inform Khader that you reached Chennai and he will come to the lodge where you are staying, or Khader's people will come and collect the foreign currency from you and give you the equivalent INR; that these are also done without any documents; that other than Khader, you used to sell to Anas; that Khader's firm is at Chennai Paris and Burma Bazar, that to date, you purchased around Rs 25 crores worth of foreign currency from Kerala and sold that to Khader, that usually you used to go to Chennai; that other than you, your son Hyder Shaji, Anas Erattupetta, Siraj Erattupetta, etc. are the carries of foreign currency to Chennai by bus; that this will be given to Khader, that all these are done without keeping any accounts and documents; that the calculations prepared for your knowledge will be destroyed after the transaction is completed; that was the foreign currency transaction you made and its calculations; that the first page indicates the value of Indian currency equivalent to the rate of foreign currency; that the second page indicates the details of the persons who carry foreign currency to Chennai and the quantity....
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.... statement? Answer 5 : I sell the collected illegal foreign currency from Kerala to a person named Manikannan from Thrishnapalli in Tamil Nadu other the Khader in Chennai. Question 6 : Do you have any authorized license or permit or acknowledgement to carry foreign currency exchange business? Answer 6 : I don't have any authorized license, permit, acknowledgement to carry foreign currency exchange business. viii. Further Shri Shaji A.K. @ Payasam Shaji i.e. you have disclosed the names of other carriers i.e. (i) Hyder Shaji (your son) (ii) Shri Anas from Erattupetta, (iii) Shri Siraj from Erattupetta. You further disclosed that they used to go Chennai on your directions with unaccounted foreign currencies where they handed over the currency to the Chennai based racketeers and in exchange of foreign currency, they receive Indian currency. All these transactions are unaccounted as per your admission and the records were disposed of once the transactions were completed. The entire illegal transactions to the tune of Rs 25 Crores were carried out by Shri Shaji A.K. @ Payasam Shaji i.e. you with the help of your close relatives and friends. ix. Thus, Shri Appisseril K....
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....mmovable property situated outside India, except as otherwise provided under the Act. For the contravention of the Act, rules and regulations, penalty is provided under Section 13 of the Act. This would mean that dealing in foreign exchange de hors the statutory provisions, rules and regulations would be illegal. For violation of foreign exchange regulations, penalty can believe (sic) and such activity is certainly an illegal activity, which is prejudicial to conservation or augmentation of foreign exchange. xii. Shri Appisseril Kochu Muhammed Shaji @ Payasam Shaji i.e. you have indulged yourself in hawala dealings, purchase and sale of foreign currencies from retail customers without raising any invoice and has generated unaccounted income in Indian rupees and foreign currencies to the tune of Rs 25 crores. Thus, you have contravened the Section 3 and Section 4 of Foreign Exchange Management Act, 1999 and indulged in the act prejudicial to the conservation or augmentation of foreign exchange. 2. In view of the foregoing, I have no hesitation in arriving at the conclusion that you have been engaging yourself in activities, which have adversely affected the augmentation of for....
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....ual aspects respectively. 39. It could thus also be seen that the said Preetha Pradeep is a vital link for transactions between the said Suresh Babu and the detenu. It, therefore, cannot be said that the statements of Preetha Pradeep are just a casual or a passing reference. On the contrary, the said statements, as has been seen from the preamble of the grounds of detention as well as the beginning of paragraph 2 of the detention order dated 31st August 2023, formed the basis for arriving at a subjective satisfaction by the Detaining Authority. It is difficult to determine as to whether in the absence of the said statements of Preetha Pradeep the subjective satisfaction arrived at by the Detaining Authority could have been arrived at or not. However, the very recording of the factum of the statements of Preetha Pradeep make them a relevant aspect taken into consideration by the Detaining Authority for arriving at its subjective satisfaction. 40. Insofar as the reliance placed by the learned Senior Counsel appearing for the respondents on the provisions of section 5A of the COFEPOSA is concerned, no doubt that if the detention order is made on several grounds and if the said order....
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.... the details of the document which is being relied on but factually, the detention order is based on one ground, which is revealed by Ground (1)(xvi) of the grounds of detention which we have already quoted hereinbefore. Thus on the facts of this case Section 5-A has no application in the present case". [ emphasis supplied ] 44. In that view of the matter, we have come to a considered conclusion that non-supply of the statements of Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India and as such, the detention is vitiated on the said ground. (b) As to whether non-receipt of the representation and the delay in deciding the representation by the Detaining Authority and the Central Government would also affect the right of the detenu under Article 22(5) of the Constitution. 45. It is undisputed position that the detenu has submitted his representation on 27th September 2023 to the Jail Authorities for onward transmission of the same to the Detaining Authority and the Central Government. 46. It will be relevant to refer to certain averments made in the counter affidavit filed on behalf of resp....
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....tenu was rejected by the Detaining Authority and the Central Government on 11th June 2024 and 12th June 2024 respectively i.e. after a period of almost 9 months from the date of making the same. 49. In this respect, it will be apposite to refer to the observation of this Court in the case of Tara Chand vs. State of Rajasthan and others (1981) 1 SCC 416 wherein this Court was considering the delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority. This Court observed that : "9. In spite of these evasive answers contained in para 21, it is clear that the representation dated February 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on March 27, 1980. It was substantially in the same terms as the representation addressed to the Central Government for revocation of the detention under Section 11. This delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or ....
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....sider and decide such a representation speedily. 52. In the case of Rattan Singh vs. State of Punjab and others (supra), this Court found that the representation of the detenu made to the State Government was decided expeditiously. However, insofar as the said representation made to the Central Government is concerned, either it was not forwarded or someone tripped somewhere. The inevitable result was that the detenu was deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chief Justice Y.V. Chandrachud, speaking for the Bench, observed thus: "4. There is no difficulty insofar as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have forwarded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission....
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....our case, the representation to the Central Government was not forwarded to it at all." 53. This Court observed that, maybe the detenu was a smuggler whose tribe (and how their numbers increase) deserved no sympathy since its activities had paralysed the Indian economy, but the laws of preventive detention afforded only a modicum of safeguards to persons detained under them. It has been observed that it was essential that at least those safeguards are not denied to the detenus. This Court observed that the failure in that case either on the part of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government had deprived the detenu of the valuable right to have his detention revoked by that Government. 54. Relying on the earlier judgments, this Court held that since the representation was left unattended for four months, the continued detention of the detenu was illegal. 55. In the case of Vijay Kumar vs. State of Jammu & Kashmir and others (supra), this Court observed thus: "13. ....There are two time-lags which may be noticed. Representation admittedly handed in to the Superintendent of Jail on July 29, 1981, at Jammu ....
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....n of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion." 7. It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression "reasonable expedition" is explained in Sabir Ahmed v. Union of India [(1980) 3 SCC 295 : 1980 SCC (Cri) 675] as follows: (SCC p. 299, para 12) "What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inac....
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....lso simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order." 11. Reverting to the instant case, we hold that the above observation in Vijay Kumar case [(1982) 2 SCC 43 : 1982 SCC (Cri) 348] will squarely be applicable to the facts herein. Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16-6-1988 for mere onward transmission to the Central Government has callously ignored and kept it in cold storage unattended for a period of seven days, and as a result of that, the representation reached the Government eleven days after it was handed over to the Jail Superintendent. Why the representation was retain....
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....at the said representations were sent by the ordinary post and since the said representations were sent by ordinary post, they could not be tracked to know where the said ordinary posts have stuck. It is further averred that only after a notice was issued in the present matter, the said representations were sought from the Jail Authorities and the same came to be rejected on 11th June 2024 and 12th June 2024 respectively. 61. Memoranda dated 12th June 2024 further show that the Director General, CEIB being the Central Government received the representation of the detenu through Superintendent, Central Prison & Correctional Home, TVPM-12 vide his letter dated 11th May 2024 and the representation was received by the Detaining Authority through email on 22nd May 2024. However, there is no mention in the counter affidavit as to when the said representations were in fact received by the Central Government and the Detaining Authority. Presumably, if it is held that the representation would have been received by the Central Government within 2 or 3 days from the date of dispatch thereof that will bring the date of receipt on 14/15th May 2024. 62. Even if it is presumed that the said rep....
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....o the detenu to have his representation decided expeditiously cannot be denied. 69. As already discussed herein above, there has been a delay of almost about 9 months in deciding the representations made by the detenu. Even otherwise, from the Memoranda dated 12th June 2024, as already discussed herein above, there would be at least 27/20 days' delay on the part of the Central Government and the Detaining Authority in deciding the representation of the detenu after it reached them subsequent to the filing of the present appeal. 70. We may only reiterate what has been laid down in the earlier judgments of this Court that the Prison Authorities should ensure that the representations are sent to the Competent Authorities immediately after the receipt thereof. In the present era of technological development, the said representation can be sent through email within a day. It is further needless to reiterate that the Competent Authority should decide such representation with utmost expedition so that the valuable right guaranteed to the detenu under Article 22(5) of the Constitution is not denied. In the matters pertaining to personal liberty of the citizens, the Authorities are enjoin....