TaxTMI 
TaxTMI 
2024 (9) TMI 707
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....pus petition filed by the appellant for production of the 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 fo....
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....detenu be detained for a period of one year from the date of his detention i.e. from 2nd September 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.....
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....sel relied on the following judgments of this Court: (i) Tara Chand vs. State of Rajasthan and others (1981) 1 SCC 416; (ii) Rattan Singh 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 per....
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.... 15. Shri Nachiketa Joshi further submits that it is not necessary to furnish copy of each and every 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. 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, v....
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....0) 2 SCC 275: 1980 SCC (Cri) 419: (1980) 2 SCR 1095] , Ichhu Devi Choraria v. Union of India [(1980) 4 SCC 531: 1981 SCC (Cri) 25: (1981) 1 SCR 640] , Pritam Nath Hoon v. Union of India [(1980) 4 SCC 525: 1981 SCC (Cri) 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 imper....
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....ion of mind; (ii) Neither the grounds of detention nor the confirmation thereof were communicated and explained to the detenu; (iii) The grounds are vague; and (iv) The order of detention, assuming it was served, was a colourable act as the petitioner 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 wh....
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....us: "7. The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the nonsupply of the documents called for had any effect on the detenu and/or whether the nonsupply was prejudicial to the detenu. 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 ref....
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....ral public. 27. It has also been the consistent view 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 against the detention order in compliance with Article 22(5) of the Constitution, irrespective 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 temporari....
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....are unaccounted and the paper slips were taken from your residence in which you noted the details of forex transactions of your work as a carrier of foreign currencies; that you were working as a commission agent for various Foreign Exchange Racketeers and handed over the illegally collected foreign currencies as well as Indian currencies to various persons inside and outside Kerala 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 d....
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....; that these are done without any documents; that you mainly purchase foreign currency from traders like Suresh of Suresh Forex at Kottayam, Native of Parur Shambu, Simon from Kottayam, etc.; that you have also given currencies to people going abroad from Kerala; that mainly you sell currency to Khader from Chennai; that the currency collected from Kerala will be sent to Chennai via Madhurai by bus; that 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....
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....his number belongs to me. Answer 4 : I heard the voice calls in above said Hash value marked as CD-32. The voice in this call which belongs to Suresh Babu and myself. The first number in call details which was the mobile number of Suresh Babu and this number belongs to me. Question 5 : To whom you are selling the illegal foreign currency received from Kerala other than Khader from Chennai you mentioned in your previous 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....
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....transferring any security or acknowledging any debt. 4 Holding of foreign exchange, etc. -Save as otherwise provided in this Act, no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India." xi. Further, Section 4 of Foreign Exchange Management Act, 1999, specifically provides that no person resident in India shall acquire, hold, own or possess or transfer any foreign exchange, foreign security or any immovable 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 reta....
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....s approximately Rs.20 Lakhs to Rs. 30 Lakhs. She further stated that in return to that Suresh will give one packet and direct her to handover the same to the representative of Mr. Shaji. 38. It could thus be seen that apart from the above two statements of Preetha Pradeep dated 5th July 2023 and 6th July 2023, the Detaining Authority has taken into consideration one statement of Suresh Babu recorded on 7th July 2023; three statements of the detenu recorded on 20th June 2023, 11th July 2023 and 17th July 2023; and two other factual 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 subjec....
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....e detention is based on more than one ground, not where it is based on a single ground. Same is also the decision of this Court in the unreported decision of Prem Prakash v. Union of India [ Crl. A. No. 170 of 1996 dated 7-10-1996 (see below at p. 163)] decided on 7-10-1996 relying on K. Satyanarayan Subudhi v. Union of India [1991 Supp (2) SCC 153 : 1991 SCC (Cri) 1013]. Coming back to the present case we find really it is a case of one composite ground. The different numbers of the ground of detention are only paragraphs narrating the facts with 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. ....
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....esentations of the detenu came to the notice of the concerned Authorities. As such, the representations were sought from the Jail Authorities through email. After receiving the same from the Jail Authorities, the same were placed before the concerned authorities, which were rejected on 11th June 2024 and 12th June 2024 respectively. It is further averred in the counter affidavit that the Memoranda dated 12th June 2024 to that effect were sent to the detenu/the husband of the appellant. 48. It is thus clear that the representations dated 27th September 2023 of the detenu 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 c....
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....ke a representation and to consider that representation speedily is distinct from the Government's obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. 51. It is thus clear that merely because the Advisory Board opined that the order of detention was sustainable, it does not absolve the agents of the Detaining Authority/the Central Government to immediately forward the representation to the Competent Authority and the Detaining Authority or the Central Government to consider 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: ....
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....al Siroya v. Union of India [(1980) 2 SCC 346 : 1980 SCC (Cri) 447] this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under Section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In 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 t....
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.... "5. This Court in Sk. Abdul Karim v. State of W.B. [(1969) 1 SCC 433] held: (SCC p. 439, para 8) "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality." 6. This view was reiterated in Rashid Sk. v. State of W.B. [(1973) 3 SCC 476 : 1973 SCC (Cri) 376] while dealing with the constitutional requirement of expeditious consideration of the petitioner's representation by the Government as spelt out from Article 22(5) of the Constitution observing thus: (SCC p. 478, para 4) "The ultimate objective of this provision can only be the most speedy consideration 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....
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....rity is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also 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 con....
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.... of B. Alamelu vs. State of T.N. and others (supra). 60. In the present case, it is an admitted position that though the detenu had made a representation on 27th September 2023 to the Jail Authorities for onward transmission of the same to the Detaining Authority and the Central Government, it is merely stated in the counter affidavit that the Jail Authorities informed that the representations dated 27th September 2023 were submitted by the detenu. The Jail Authorities had sent the said representations to the concerned authorities through ordinary post. It is stated that however, neither the Detaining Authority nor the Central Government received the said representations. It is further stated that 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 Directo....
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....detenu reaches the concerned Authorities at the earliest. In the present era of technological advancement, the Jail Authorities could have very well sent the copies of the representation to the Detaining/Appropriate Authority either by email or at least a physical copy could have been sent by Speed Post (acknowledgment due) so that there could have been some evidence of the said being sent to the competent authority and could have been tracked. 68. We are of the considered view that merely because there has been a casual or callous and, in fact, negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to 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 r....