Rasheed Ulla Khan vs Secretary to Government and Others

N.Y. Hanumanthappa, J.—The order of the first respondent in No. 1106/L&O-11/9701 dated 13-10-1997 detaining one Farhatulla Khan alias Shanawaz Khan alias Syed Saleem Hussain (hereinafter referred to as the "detenu") u/s 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA Act") is under challenge in this writ petition. The petitioner is the elder brother of the detenu.

In the grounds of detention supplied to the detenu, it is stated that white the detenu along with his brother Shafiulla Khan was about to board flight IC 591A to Sharjah, he was intercepted by the officials of the Directorate of Revenue Intelligence and when his checked-in baggage was searched, it was found that he was carrying without declaration, foreign currency and travellers cheques valued at Rs.20,73,452/- and that the detenu confessed the illicit export of foreign currency and travellers cheques. After referring to the various details of the detenu and his business, the grounds further mention that the detenu engaged himself in smuggling of foreign currency and travellers cheques out of India right from the month of February, 1997; that he is habitually indulging in smuggling activities and that with a view to prevent him from engaging in the smuggling of foreign exchange in future also, he is being detained under the COFEPOSA Act.

After the arrest of the detenu, he was produced before the Special Judge for Economic Offences, Hyderabad and he was remanded to judicial custody. The bail applications filed by the detenu were rejected by the learned Judge and he was released in term of Section 167(2)(a)(ii) of the Criminal Procedure Code on 14-10-1997 but however, it could not be given effect to as he was already taken into preventive detention by virtue of the impugned order of detention.

It is the case of the petitioner that the order of detention is bad for a variety of reasons. Firstly, the detaining authority has not applied his mind to arrive his satisfaction. The mention of sub-section (1)(iii) of Section 3 of the COFEPOSA Act in the order which speaks of "engaging in transport or concealing or keeping smuggled goods" which is not at all relevant and which is not borne out of records in the case of the detenu speaks of this. It is stated that the travellers cheques which were seized from the detenu belong to two prospective passengers to Sharjah viz., Mohd. Waheed and Mohammed Majid Ali and that the said persons have written letters to that effect and that mere possession of travellers cheques it not an offence. It is further stated that the actual amount seized from the detenu is only Rs.2,23,700/- and that the COFEPOSA Act should not be invoked if the seized value is below Rs.5,00,000/-. This fact was not taken into consideration by the detaining authority. It is also stated that the detaining authority had relied upon the retracted confessions of the detenu and his brother (which confessions, according to the petitioner, were obtained under duress and coercion) which is contrary to law and that the alleged act of the detenu does not amount to smuggling of goods. It is stated that certain documents relied upon by the detaining authority have not been supplied to the detenu and that the documents supplied to the detenu were illegible and thus the detenu was prevented from making an effective representation. The foreign exchange available with the detenu was purchased from the authorised foreign exchange dealers and thus there is no violation of the provisions of FERA or the Customs Act. The detenu made a representation to the Advisory Board raising new facts and that the same has not been considered by the authorities which makes the detention order illegal. Lastly it is stated that the detenu requested for engaging the services of a lawyer but the same was rejected and that he was not given an opportunity to adduce rebuttal evidence. Thus contending, the petitioner sought that the writ petition be allowed and the order of detention be set aside.

The respondents filed counter-affidavits denying the averments in the affidavit filed in support of the writ petition and supporting the order of detention.

In the counter-affidavit filed by the State-Government, it is specifically denied that there is non-application of mind on the part of the detaining authority. It is stated that all the material relied upon by the detaining authority has been supplied to the detenu. It is also stated that the representation dated 24-11-1997 submitted by the detenu was placed before the Advisory Board which met on 26-11-1997 and that the same was considered by the Advisory Board.

The Government of India filed a counter-affidavit stating that the detenu''s representation dated 6-11-97 was considered and rejected by the Secretary (Revenue) on 16-12-1997 without any delay and the same was intimated to the detenu. So far as the representation dated 24-11-1997 is concerned, it is stated that the same has not been received by the Central Government.

The learned Counsel for the petitioner attacked the order of detention on four grounds.

Firstly he contended that the order of detention is vitiated by non-application of mind on the part of the detaining authority. To substantiate his contention, he took support from the mention of Section 3(1)(iii) of the COFEPOSA Act in the order of detention. It is his contention that sub-clause (iii) of subsection (1) of Section 3 deals with engaging in transporting or concealing or keeping smuggled goods and that there is no material on record to show that the detenu has engaged himself in smuggling of any goods. This clearly establishes that the detaining authority has not applied his mind while passing the order of detention and that he has passed the order in a mechanical way, which vitiates the order. In support of his contention, he relied upon the decision of the Karnataka High Court in Leharibai v. State of Karnataka 1981 Cri.LJ 1048 and an unreported judgment of the same High Court in W.P.No.33 of 1997.

The second ground on which much stress has been laid is that the documents supplied to the detenu, which formed the basis of his detention, are illegible and inspite of a request made by the detenu, legible copies were not furnished. This had deprived the detenu in making an effective representation to the authorities and by this, there is non-supply of documents in the eye of law, which vitiates the order of detention. In support of this contention, he relied upon the decisions of the Supreme Court in Mehrunissa Vs. State of Maharashtra, and Smt. Dharmista Bhagat Vs. State of Karnataka and Another, .

The third ground of attack of the learned Counsel is that no opportunity was given to the detenu to adduce rebuttal evidence though a specific request was made to the Advisory Board in this regard and when in fact the detenu kept present his witnesses when the Advisory Board met to consider his case. It is also contended that no counter has been filed denying this allegation. He therefore, argued that the denial of opportunity to adduce rebuttal evidence by the detenu offended the principles of natural justice and the same vitiated the order of detention. He traces support for his contention from the decisions of the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, and Harbans Lal Vs. M.L. Wadhawan and Others, . A supplementary argument advanced for the detenu is that the detaining authority relied upon the letters written by one Mohd. Waheed and Mohd. Majid Ali and that copies of the same were not supplied to the detenu. Non-supply of the copies of the said letters vitiates the order of detention, hi this behalf, he relied upon the decisions of the Supreme Court in Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, and Thakor Mulchandani Vs. Assistant Secretary to the Government of Maharashtra and Others, .

The learned Counsel lastly submitted that the detenu made a representation dated 24-11-1997 on new and fresh grounds but the same was not considered by the Advisory Board, the State Government and the Central Government. Non-consideration of the said representation makes the detention order illegal. In this connection, he relied upon the decision of the Supreme Court in Moosa Husein Sanghar Vs. State of Gujarat and others, .

In answer to these submissions, Smt. K. Vijaya Lakshmi, learned Government Pleader, justified the order of detention passed by the first respondent. So far as the first submission of the learned Counsel for the petitioner is concerned, the learned Government Pleader submitted that it is not necessary that in order to constitute "engaging in smuggling" it should have been carried on more than once and that even a single act could constitute engaging oneself in any activity. She, however, submitted that even assuming that Section 3(1)(iii) of the COFEPOSA Act is not attracted in the case of the detenu, still, by virtue of Section 5A of the Act, the order of detention is not bad. In support of her contention, she relied upon the decision of the Supreme Court in Madan Lal Anand Vs. Union of India and others, .

So far as the second ground is concerned, the learned Government Pleader submitted that all the documents relied upon by the detaining authority were supplied to the detenu and that he received the same by putting his signature and date. He never raised any objection as regards the illegibility of the documents. Moreover, a second set of papers were also supplied to the detenu. She submitted that even assuming that the documents supplied are illegible and amounted to noncommunication, it does not affect the right of representation of the detenu and that the detenu has to satisfy the Court as to how his right of representation has been violated by reason of non-supply of the documents. In this regard, she relied upon the decision of the Supreme Court in Kamarunnissa and Others Vs. Union of India and another, . She submitted that the decisions cited by the learned Counsel for the petitioner in this regard do not apply to the facts of this case.

As regards the third submission of the learned Counsel for the petitioner regarding failure to give an opportunity to adduce rebuttal evidence before the Advisory Board, the learned Government Pleader admitted that the detenu sent a representation dated 24-11-1997 to the Advisory Board in which he stated that he is enclosing a list of witnesses who would be present at the time of the hearing before the Advisory Board and that he would like to lead evidence and rebut the allegations. The learned Government Pleader, however, stated that the detenu did not in fact make the said request to the Advisory Board on the date of hearing and that the report of the Advisory Board also does not speak that any petition was made by the detenu in this regard. She asserted that the Advisory Board is under an obligation to record evidence only if a specific request is made when it meets, which is not done in this case. In this regard, she relied upon the decision of the Supreme Court in A.K. Roy''s case (supra). As regards the allegation of the learned Counsel for the petitioner that copies of the letters written by Mohd. Waheed and Mohammed Majeed Ali have not been supplied, the learned Government Pleader submitted that the said allegation is incorrect and that copies of the letters written by the said two persons were in tact served upon the detenu.

So far as the representation of the detenu dated 24-11-1997 is concerned, it is stated by the learned Government Pleader that the said representation was placed before the Advisory Board which met on 26-11-1997 and that the same was considered by the Advisory Board and opined that there is sufficient cause for the detention of the detenu.

On a careful consideration of the rival contentions, the following four points arise for adjudication :

(i) Whether the detention order is vitiated by reason of non-application of mind ?

(ii) Whether the documents relied upon by the detaining authority have been supplied to the detenu ?

(iii) Whether the documents supplied to the detenu are illegible ?

(iv) Whether the detenu was afforded an opportunity to adduce rebuttal evidence ?

Re(1) :

Section 3 of the COFEPOSA Act authorises the Central Government or the State Government or the officers of the Central Government or the State Government specially empowered in this behalf to detain persons with a view to preventing them from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from :

(i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or keeping smuggled goods or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.

According to Section 2(22) of the Customs Act, "goods" includes :

(a) vessels, aircrafts and vehicles,

(b) stores,

(c) baggage,

(d) currency and negotiable instruments, and

(e) any other kind of moveable property

The impugned order of detention has been passed both under clause (i) and clause (iii) of sub-section (1) of Section 3 of the COFEPOSA Act. The argument advanced for the petitioner is that there is no material on record to invoke clause (iii) of sub-section (1) as the detenu was not found engaging in smuggling goods and that the mention of the said clause, which is irrelevant to the facts of the case on hand, depicts non-application of mind on the part of the detaining authority and on this score, the order of detention is liable to be set aside.

It is well settled that in preventive detention cases, the mention of any nonexistent, irrelevant or stale grounds as the basis for the detention order vitiates the order. However, this principle cannot be applied to causes arising under the COFEPOSA Act by virtue of the exception contained in Section 5A of the Act. Section 5A reads :

"5-A. Grounds of detention severable :--Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or

(i) vague,

(ii) non-existent,

(iii) non relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section(1) of Section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention tinder the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds."

The Supreme Court in Madan Lal Anand''s case (supra) while dealing with such a situation, has held :

"..... even assuming that the ground relating to the confessional statement made by the detenu u/s 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified."

We, therefore, hold that even assuming that clause (iii) of sub-section (1) of Section 3 of the Act is not attracted in the case of the detenu, still the order of detention cannot be faulted in view of Section 5A as clarified by the Supreme Court in the aforesaid decision. Thus, point No.1 is answered against the petitioner.

Re (2) :

As regards the allegation of non-supply of material documents relied upon by the detaining authority to the detenu, we find no merit in the argument advanced for the petitioner. We have gone through the record produced by the learned Government Pleader and we are satisfied that all the documents relied upon by the detaining authority have in fact been supplied to the detenu. Hence, we answer this point against the petitioner.

Re (3) :

The grievance of the petitioner is that the documents relied upon by the detaining authority and supplied to the detenu are illegible and, therefore, the detenu was prevented from effectively representing to the authorities. It is further alleged that inspite of a demand made by the petitioner to the authorities, legible copies were not supplied.

We have gone through the material papers made available to the Court by the learned Government Pleader. They are all xerox copies. The reason for supplying legible copies is to provide an opportunity to the detenu to make his representation in an effective manner. Some of the documents supplied to the detenu, we find, are not legible. The Supreme Court in Dharmista Bhagat ''s case (supra) held :

".... it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e., panchnama dated February 12, 1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad."

In view of the feet that some of the documents supplied to the detenu are not legible, we hold that the order of detention is vitiated on that score. We, therefore, answer this point in favour of the petitioner.

Re (4) :

Another grievance made out by the detenu is that he was not afforded an opportunity to adduce rebuttal evidence. It is asserted in the affidavit filed in support of the writ petition that the detenu made a representation to the Advisory Board seeking to adduce rebuttal evidence by producing his witnesses. In fact, when the Advisory Board met on 26-11-1997, the detenu produced the witnesses but he was not given an opportunity to adduce rebuttal evidence.

However, Smt. Vijayalakshmi, learned Government Pleader, disputes the assertion of the petitioner that such a representation was made to the Advisory Board and that the witnesses were made available.

By preventive detention, the State curtails the personal liberty of the detenu and a duty is cast on the Advisory Board to sec that every reasonable opportunity is afforded to the detenu to defend his case effectively. The Advisory Board has to record the nature of the opportunities afforded to the detenu to defend his case which means that there should be an indication by the Advisory Board whether the detenu is willing to adduce any rebuttal evidence. We do not find any such indication by the Advisory Board in any of the records produced before us by the learned Government Pleader. This shows that fullest opportunity was not given to the detenu. It is well settled that the detenu has a right to adduce evidence in rebuttal of the allegations against him before the Advisory Board (vide A.K. Roy''s case supra). All that is necessary is that the detenu has to keep the witnesses ready for examination at the appointed time since there is no obligation on the Advisory Board to summon them.

In the light of the above discussion, we are of the considered opinion that fullest opportunity to adduce rebuttal evidence to defend the detenu''s case was not given and thus the order of detention is vitiated. We accordingly answer this point in favour of the petitioner.

Having reached this conclusion, we thought of sending the matter back to the authorities for collecting fresh information. But it is brought to our notice that the detenu is in custody since 14-10-1997 and if once again the matter is remanded back for fresh consideration, no useful purpose would be served.

Therefore, in view of our findings on points 3 and 4, we quash the impugned order of detention and the detenu is directed to be set at liberty forthwith if not required in any other case. The writ petition is accordingly allowed.

Before parting with the case, we place on record our high appreciation of the able assistance rendered by Smt. K. Vijaylakshmi, learned Government Pleader, for which she deserves a special "fee. Accordingly, we fix her fee at Rs.10,000/-(Rupees ten thousands only) to be paid by the Government. The fee shall be paid to her on the production of a copy of this order.