Sanjeev Kumar Jain vs State of U.P. and Others

Giridhar Malaviya, J.—As these two petitions are based on identical facts and grounds and as they arise against the same activity and as the Petitioners have also been detained by identical order and grounds of detention, they are being disposed of by common judgment.

Both the Petitioners Sanjeev Kumar Jain and Ashok Kumar Agarwal were detained in pursuance of an order dated 9-3-1989 passed by State of U.P. against them u/s 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA). Whereas the order of detention was served on Sanjeev Kumar Jain on 17-5-1989, Ashok Kumar Agarwal was detained on 9-5-1989. The grounds of detention on which the detention order was based disclose that on 3-1-1989 at about 7.45 P.M., the Custom and Central Excise Authorities of Saharanpur with the help of police of police station Nanauta had intercepted a Maruti Car DDC 5513, driven by one Kishor Kumar son of Sri Harish Chandra in which the two Petitioners and one Sunil Kumar was also sitting. The aforesaid persons were brought to the office of the Collector of Customs and Central Excise, Saharanpur. On the search being made of the two Petitioners in the presence of two independent witnesses, from the shirt pocket of Ashok K.umar ten gold Ginnies bearing mark �Victoria D.G. Britannia Reg. F.D., and from the pocket of his pant five golden Churi along with a Katcha Parcha were recovered, which were claimed by Ashok Kumar to be four Churi and one Kangan and not five Churi. From the socks of Ashok Kumar a gold biscuit (bar) of Chines origin weighing 250 grms was also recovered. On the car being searched, from the iron box beneath the driver�s seat, one cotton bag (Thaila) was recovered containing silver ornaments along with a Kaccha Parcha. In the silver ornaments, there were two packets. In one packet wrapped in a small newspaper piece Mark 9499 No. 5000 (Chinese golden Bars) written in English and Chines and from another paper packet 7 golden biscuits were recovered. From another iron box placed below the front seat of the car, a hard-board box was recovered from a cotton bag containing 15 packets of 100 rupee notes and from one envelop containing three packets of Rs. 100/- notes totalling Rs. 1,80,000/- were recovered. Purity and weighment of the recovered articles was got done by Surendra Kumar Jain, approved Gold Valuer, Sarrafa Bazar, Saharanpur and on finding that the said articles were retained in violation of Gold Control Act, 1968 as also the Customs Act, 1962, the recovered gold, the ornaments and cash were seized. After getting the recovered articles sealed in three separate packets the specimen seal was also put on the recovery memo. The car in which the said articles were transported was also seized for transporting the said commodities. On being interrogated, Sanjiv Kumar Jain told the officials of the Central Excise Saharanpur that from his personal search, nothing was recovered but he admitted the recovery of the articles mentioned above from the said car. It was also admitted by Sanjiv Kumar Jain that the golden biscuits carried by him belonged to one Anuj Kumar, who had required him to get these biscuits, for which he was paid Rs. 100/- for every trip. He also disclosed that he had prior to the incident of 3rd January, 1989 also transported golden biscuits for Anuj Kumar Jain on 3 or 4 occasions. Anuj Kumar in his statement dated 12-1-1989, inter alia, told the officials of the Central Excise Department Saharanpur that he had no knowledge of the recovery of the gold on 3-1-1989 because on that day he had gone to Mussoorie for canvassing in the election. Anuj Kumar had also stated that he knew Sanjiv Kumar Jain for about 3 years and attributed that Sanjiv Kumar Jain had nominated him in his statement due to enmity. Ashok Kumar Agarwal in his statement made before the officials of the Central Excise, Saharanpur had admitted that from his search ten golden Ginnies, four Churi, one Kangan, one gold biscuits/gold bar were recovered. He also admitted the recovery from the car of the silver ornaments, gold bar, gold biscuits and Rs. 1,80,000/-. The Car driver Kishor Kumar also in his statement before the officials of the Custom Department, inter alia, admitted that the recovery made from the car and so was the statement made by Sunil Kumar on 3-1-1989, who also admitted all the recoveries being made at the time of the search. He also admitted that the recovery memo was prepared. However, Sunil Kumar while denying any knowledge in respect of the golden biscuits recovered from the car admitted that on being searched Rs. 4358.40 p. one bank draft of Rs. 66,018/- and 10 silver coins were recovered. He had also admitted that from the search of vehicle one piece of Chinese gold bar weighing 187.200 Gms, one piece golden biscuit Johnson Mathey London Mark weighing 116.600 Gms, one piece golden biscuit of credit Swiss Marking 116.600 Gms, one piece golden biscuit of origin marking weighing 200.00 Gms, two gold biscuits of Swiss Bank Corporation marking weighing 200.00 Gms, one gold bar with Chinese marking weighing 37.500 Gms along with Rs. 1,80,000/- and silver ornaments weighing 4.049 Kgs were recovered from the iron box, fitted under the front seat of the car. On the basis of the above mentioned material, the government was satisfied that the Petitioners could indulge in the transport, concealment and in keeping the smuggled goods and hence with a view to prevent the Petitioners from indulging in such activity, it was necessary to detain them under the provisions of COFE -- POSA, with the result that the order of detention had been issued against them.

After the petitions had been filed in the High Court, notices were issued. Counter-affidavit has been filed on behalf of the State Government. A rejoinder-affidavit has also been filed. However, in the case of Ashok Kumar Agarwal (writ petition No. 12118/89) a supplementary affidavit, its counter-affidavit and rejoinder-affidavit were also exchanged.

We have heard Shri G.S. Chaturvedi in support of the petition of Sanjeev Kumar Jain and Shri Amar Saran on behalf of Ashok Kumar Agarwal and Shri Prem Prakash, learned Additional Government Advocate in the said petitions on behalf of State of U.P. Both the counsel for the Petitioners formulated the following points and have made their submissions in support of them. The points are :

(1) That the alleged confession made by the Petitioners on 3-1-1989 had been retracted by means of a telegram sent to Collector Central Excise, on 5-1-1989 at 8 P.M.

(2) That the relevant material as also the documents demanded by the Petitioner through their representative to enable the Petitioners to make effective representation were not supplied with the result that they could not make an effective representation rendering their continued detention bad in the eye of law.

(3) There has been breach of Section 3(2) of COFEPOSA, and

(4) that there has been delay in the disposal of the representation.

So far as the first plea is concerned, it may be noted that the Petitioners were apprehended by the Custom and Central Excise Officials of Saharanpur. The copy of the telegram alleged to be sent on 5-1-1989 has been filed in the case of Ashok Kumar Agarwal along with a supplementary affidavit. The said telegram reads as under :

Collector Central Excise Meerut, Central Excise Officers on 3rd January, 1989 took statement by beating, implicated falsely Ashok Kumar Agarwal.

The certified copy of the above mentioned telegram appended with the supplementary affidavit neither discloses the place of its origin nor does it indicate as to Central Excise Officers of what place or district took statement by beating Ashok Kumar. It is also not disclosed as to who was Ashok Kumar Agarwal and where did he reside. In the reply to the said supplementary affidavit filed on behalf of the Respondents, the receipt of any such telegram has been denied. It is quite obvious that even if any such telegram would have been received in the office of the Collector, Central Excise, Meerut, then in the absence of any details or particulars about the person and place as to which of the Central Excise Officers had obtained statement etc., the said telegram was of no consequence. In the petition of Sanjiv Kumar Jain, neither any copy of the telegram has been appended nor has it been shown as to what was the message, which had been sent to the Collector, Central Excise, Meerut. In view of the facts mentioned above, the plea of the Petitioners that they had retracted the confession and this being not noticed by the detaining authority has no legs to stand.

So far as breach of Section 3(2) of COFEPOSA is concerned, the Petitioners rely on the counter affidavit tiled on behalf of the Respondents which demonstrates that the Chief Minister had approved the proposal to detain the Petitioners on 2-3-1989. Without raising any specific plea in this regard in this petition, it is said by the Petitioners that in view of this disclosure in the counter affidavit, the date of order of detention should be treated 2nd March, 1989 and not 13th March, 1989 on which date the detention order was issued in the name of Governor by the Joint Secretary Home Confidential Section of the State of Uttar Pradesh. It is not possible to accept this contention of the Petitioners as unless the order is notified and issued, the mere fact that a decision has been taken to issue such order, the order does not see the light of the day. The Petitioners wanted to canvass that as the order of detention itself should be treated to be of 2nd March, 1989, then the said order having been reported to the Central Government on 16th March, 1989, there was non compliance to Section 3(2) of COFEPOSA. It would be relevant to mention here that as per affidavit of Shri Kuldeep Singh filed on behalf of Union of India, the date of the order of detention is 13th March, 1989 and the same having been reported to government within 10 days, there was no violation of the provisions of Section 3(2) of COFEPOSA. However, since we do not agree that the order should be deemed to be dated 2nd March, 1989 and not 13th March, 1989, we do not find that there has been non-compliance of the provisions of Section 3(2) of COFEPOSA. This contention of the Learned Counsel for the Petitioners also fails.

The argument of the Petitioners that the representation made by them on 2nd June, 1989 was delayed is based on the plea that in the counter affidavit, the State Government had said that the representation dated 2-6-1989 had been received in confidential department on 16-6-1989. Apparently the State Government had not disclosed as to why it took 14 days in the representation to reach the State Government. Shri Prem Prakash, learned Addl. Government Advocate states that none of the Petitioners had stated in their petition that they had despatched the representation on the 2nd June, 1989. It is true that the Petitioners did not say as to on which date they had given the representation, but once the stand of the government is that the representation was dated 2nd June, 1989, and it was received in the department on 16-6-1989, it was the duty of the Respondents to satisfy the court that there had been no delay at any stage in its disposal. As it is, in the absence of any specific explanation why the representation took 14 days to reach the concerned department of the State Government, it has to be held that the representation was not disposed of expeditiously, which necessarily renders the continued detention of the Petitioners illegal.

Coming to the last contention of the Petitioners, we find that both the Petitioners in their representations had stated that they required certain documents immediately. In the case of Sanjiv Kumar Jain, the Petitioner in paragraph 22 specified that he had demanded copy of the application for remand, copy of the order of the C.J.M. Saharanpur dated 5-1-1989 rejecting the said application, copy of the second application of remand dated 5-1-1989 as also the order passed thereon, the copy of grounds of revision filed against the order of the C.J.M. dated 5-1-1989, copy of the telegram given by the Petitioner to Central Excise, copy of the letter dated 2-1-1989 on the pad of M/s. Ugger Sen Massaddi Lal addressed to S/Shri Lala Kedar Nath Devki Nanda, Sarraf. Kuccha Bagh, Chandni Chowk, Delhi, copy of Kuchcha Parcha having details of some transactions of gold bearing signature of Shri Ashok Kumar Agarwal dated 3-1-1989, copy of Kuchcha Parcha indicating weight of silver ornaments duly signed by Ashok Kumar Agarwal, copy of statement of Shri Jagar Narain Rastogi son of Shri Bitthal Dass Rastogi, shop No. 1186, Kucha Mahajan Bhagwati Market, Chandni Chowk, Delhi dated 18-1-1989, copy of statement of Shri Sudhir Kumar Jain dated 24-1-1989 (Owner of vehicle Maruti No. DDC 5513), copy of statement of Shri Kishor Kumar, Driver dated 6-2-1989, copy of statement of Shri Subhash Chandra Partner of M/s. Ugger Sen Musaddi Lal Sarraf, Saharanpur dated 13-2-1989 and copy of Rokar Bahi No. 54 of M/s. Ugger Sen Mussadi Lal, Sarraf, Saharanpur from 1-4-1988 to 31-3-1989 written upto 4-1-1989. In the reply to paragraph 22 of the said writ petition, counter-affidavit filed on behalf of the Respondents says that except the statement of Kishor Kumar, enumerated at S. No. XI. rest of the documents were not before the State Government and as such there was no question of its consideration or placing reliance by the government. It has been further stated in the counter-affidavit that the documents which were neither referred nor relied upon by the State Government were not required to be furnished to the Petitioner.

In the case of Ashok Kumar Agarwal, in paragraph No. 28 it was mentioned that in his representation, the Petitioner had prayed for immediate supply of warrant for the search of the Petitioner�s house No. 9/607, Chabeli Kuan, Saharanpur and the recovery memo relating to the search of the house of the Petitioner and co-travellers Sanjai Kumar, Sunil Kumar and Kishor Kumar as also warrants authorising the search of the aforesaid houses but since the aforesaid documents had not been furnished to the Petitioner, he had been deprived of making an effective representation. It was further mentioned in paragraph 29 that non supply of Kaccha Parcha mentioned in the detention order had also vitiated the detention order. In reply to these paragraphs, in paragraph No. 10 of the counter-affidavit of Rajendra Prasad filed on behalf of Respondents, it was stated that all the documents and material referred to and relied upon by the State Government had been furnished to the Petitioner. However, the warrant of search as also Kacha Parcha were not available to the State Government and as they were neither considered nor had they any bearing upon the detention of the Petitioner, those documents were not furnished to the Petitioner.

The contention of the Learned Counsel for the Petitioners is that non-supply of these documents, even when they were demanded, has materially affected the right of the Petitioners to make an effective representation. The Petitioners rely upon the observations of the Supreme Court in the case of Bhawarlal Ganeshmalji Vs. State of Tamil Nadu and Another, which runs as under :

If the detenu wanted any more particulars before making his representation such as the name of the intelligence officer or other information, he could have well asked for the particulars before making his representation.

The contention of the Learned Counsel is that the only safeguard provided in the matter of preventive detention under the Constitution is a right available to a person so detained to make a representation against the order of detention. If is contended that the person making representation being confined in jail has to be furnished all such papers and material which he feels may be relevant for his representation through which he may convince the detaining authority that his detentiom without trial is not justified. On the other hand, Sri Prem Prakash, learned State counsel contends that if it is left to the whims and fancy of the detenu to ask for any paper or document for making representation, the detenu can ask for such documents which may not be easily available, with the result that the detaining authority may require a long time to first obtain it and then to supply it to the Petitioner. It is contended by Shri Prem Prakash that once there is delay in furnishing the required papers and documents to the detenu, he would immediately make a grievance that the material demanded having not been supplied expeditiously, his right to make a representation has been delayed and affected and, consequently, his continued detention is rendered illegal.

While we find sum and substance in the objection of the Learned Counsel for the State, yet we think that a person who has been preventively detained without trial has a right to get such papers and material as he feels would be necessary to make an effective representation against his detention. We cannot rule out the possibility that the detenu may genuinely feel that by placing such material before the detenu authority which are wholly unconnected with the incident and the activity giving rise to the detention order, he may establish, that the allegations against the detenu involving him in such activities were totally non-existent.

In the law relaing to preventive detention, the only safeguard and defence available to a person to establish that his detention is not justified is a right to make a representation. Once the person detained feels that with the aid of certain material he can establish that his detention is not justified he is entitled to get that papers. This is the minimum safeguard which must be made available to the detenu in the event of his being detained under the preventive detention law. If there has been delay in the matter of representation of a detenu, and the delay has been properly explained by the authority concerned, then such a delay has never rendered the continued detention of a person illegal. On the same premises, if the detenu asks for some material which is not available with the detaining authority and then he has to spend some time to make it available to the detenu, the delay so occasioned in the supply of the material can never render the continued detention of the Petitioner bad in the eye of law.

However, Sri Prem Prakash, learned Addl. Government Advocate contended that if the Petitioner started asking for material unconnected with the grounds of detention, where such material had not been relied upon in the order of detention, then the detenu may not be able to make any representation at all against his order of detention with the result that it may involve the representation being not palced before the Advisory Board within the time stipulated under the Act. Shri Prem Prakash further contends that in that event also the detenu may challenge the continued detention to be bad in the eye of law by raising the plea that he had a right to get the desired material to make an effective representation, and as the said material was not supplied to him expeditiously, his right of representation has been materially affected. This apprehension of the learned Addl. Govt. Advocate is unfounded. Invariably every detenu is informed alongwith the grounds of detention that if he wanted to make a representation against his detention order, he should do so within a specified time so that the representation may be placed before the Advisory Board, and failure to make such a representation within the time prescribed would render any such representation being not placed before the Advisory Board. Law also requires that the representation, if made, should be forwarded to the Advisory Board within a specified time which hears the matter concerning the detention of a particular person. If the detenu does not make a representation within that time as he feels that he required more material before any such representation was made by him there will be no question for the Advisory Board to examine any such representation of the detenu, and the detenu would not be heard on the plea that his right to make an effective representation has been affected due to non supply of such material which had not been relied upon by the detaining authority, but which the detenu had demanded to make an effective representation. However, this would still not mean that a detenu cannot ask for such other material or documents. The law proyides that the detenu shall also be heard by the Advisory Board. It is thus always possible for the detenu to impress upon the Advisory Board that he wanted certain documents to be placed before the Advisory Board which he also wanted to be made available to him for his representation. The Advisory Board can then always examine such documents on an adjourned hearing when the case of the detenu may be taken up by it and then decide his case. Shri Prem Prakash, learned Additional Govt. Advocate, urges that in all these events, the Petitioner may time and again urge that the delay in furnishing the required material is resulting in the delay in consideration of his representation by the State Government also and since any delay has consistently been held to be fatal to a continued detention, the Petitioner may invariably try to get the benefit of such delay in the supply of even irrelevant material, which had no bearing on the detention of the Petitioner. As stated earlier if the Petitioner does not make any representation at all, on the pretext of getting some irrelevant material and if such material cannot be obtained without considerable time being spent on it, the risk incurred was to the Petitioner himself. The detenu having been once informed that he had to make a representation within the specified time could always make a representation on the material available to him so that the Advisory Board may also have the advantage of considering such a representation, with the plea that he would also make a subsequent representation on getting some more material. If, however, the detenu chooses that he should make a representation only once, and that too after getting such material which was not relied upon, the decision for the subsequent representation would be entirely his own. In that event, he would not, as he cannot, be heard to say that the delay occasioned in the making of representation on account of his demanding irrelevant material has rendered his continued detention bad in the eye of law. Whenever, there is justification for the time consumed in supplying such material the delay cannot render the continued detention bad in the eye of law.

Sri Prem Prakash however, emphasised that the documents which have not been relied upon by the detaining authority, can have no relevance whatsoever in the matter of detention of the Petitioner and as such its demand by the detenu should be turned down straightaway without any effort to be made to make them available. He relied upon the judgment of Karnataka High Court in the case of Pichaimani v. State of Karnataka 1987 CriLJ 913 , which supports the plea taken by Shri Prem Prakash. A perusal of paragraph 25 of the said judgment indicates that the Division Bench which had decided the case was conscious of the fact that the point as to what will happen in the event of non-supply of a document which was not relied upon by the detaining authority was not directly concluded by any of the decision of the Supreme Court and hence they had to decide the said point. What, however, appears relevant to us is the fact that the Karnataka High Court was examining the effect of non-supply of the material only from the view point of Article 22(5) of the Constitution of India casts a duty upon the detaining authority to furnish grounds in support of the order of detention. The Supreme Court by its various judgments had clarified that even the documents relied upon by the detaining authority constitutes grounds. It is, therefore, settled law that all such documents and materials which have been relied upon by the detaining authority have to be furnished whether demanded or not within the specified time. The Karaatatca High Court relied upon the case of Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, and held that the principles of that case equally governed the cases of demand made by detenu. The Hon�ble Judges of Karnataka High Court did not agree with the judgment of Hon�ble Sawant and Kurdukar, JJ. in the case of Mohammad Hussain v. Secretary, Government of Maharashtra, Home Department Mantralaya, Bombay, ly 82 CriLJ 1818 where it has been held that if the detenu requested for some documents, the same had to be supplied to him.

A Division Bench of Delhi High Court in the case of Vinod Kumar Arora @ Vinod Kumar Vs. Administrator, Union Territory of Delhi and Others, had followed the judgment of Bombay High Court in Mohammad Hussain�s case. In Mohd. Hussain Vs. Secretary, Govt. of Maharashtra, Home Department, Mantralaya, Bombay and others, , one of the contention of the Petitioner was that he had not been supplied with the relevant document to enable him to make an effective representation against the detention order and thus was deprived of an opportunity to make an effective representation. While considering this plea of the Petitioner, the Division Bench of the Bombay High Court had found that some of the pages of the pass-port had not been relied upon or taken into consideration by the detaining authority and as such its non-supply did not vitiate the detention of the Petitioner under Article 22(5) of the Constitution of India. While considering various authorities in that connection, the Division Bench rightly found that there could be some papers which had been relied upon and some papers which may have not been relied upon by the detaining authority and whereas documents relied upon had to be supplied, but so far as the documents which were not relied upon and which did not form the basis of the detention order, it was held that if the detenu requested that they be supplied to him, they should be supplied whether they were relevant or not as whether those documents were needed for the representation or not was for the detenu to decide and not for the detaining authority. We are in full agreement with the view expressed by Division Bench in the case of Mohammad Hussain. What we would further like to add here is that when the question of supply of such documents arises, it has not to be viewed from the angle of the Article 22(5) of the Constitution alone but regard must be had to Article 22(4) of the Constitution also which entitled a person to have his matter heard by the Advisory Board constituted under the Act. The detenu is afforded a right and opportunity to tell the Advisory Board that his detention should not be approved. Being confined within the four corners of the jail, we feel that the detenu may ask the detaining authority for the documents on the basis of which he may feel that he would be able to satisfy the Advisory Board or the State Government that no case for his detention has been made out. Similarly, the detenu can make successive representations requesting the State Government to revoke his detention order. The State Government and the Advisory Board obviously have also then authority to examine any material other than those available on record to consider the request of the detenu to revoke his detention order.

In the back ground of these facts, it is desirable that the detenu should have the satisfaction of getting all such material or document, which according to him, may have some bearing on the question of revocation of his detention order, for which he may make a representation.

We, therefore, feel that the detaining authority or the State Government and for that reason in appropriate cases the Central Government are not justified in taking up the stand that they are not obliged to furnish any paper, which has not been relied upon by them while making a detention order and which is not connected in the matter concerning detention of the Petitioner. Once we find that on any such material being demanded the Petitioner was entitled to get them and such paper or material has not been furnished to him, the right of the Petitioner to make representation on the strength of such documents for getting his order of detention revoked has got materially affected rendering his continued detention bad in the eye of law.

As we have found that there has been delay in the disposal of the representation of the Petitioner coupled with the fact that the papers demanded were not supplied to the Petitioner affecting their right to make an effective representation, their continued detention is rendered bad in the eye of law.

In the result, both these petitions are allowed. The Petitioner shall be released forthwith by the jail authorities unless they are wanted in any other case.