Sarup Singh vs Union of India and ors.

G. S Chahal J.

Sarup Singh, petitioner, by means of this criminal writ petition under Articles 226, 227 of the Constitution of India, seeks qua of the detention order FNo. 873/116/90CusIII dtd. 30490, passed by the Joint Secretary to the Govt. of India, New Delhi under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (`COFEPOSA'' in brief).

A resume of the facts may be gathered from the grounds of detention Annexure P.10, on the basis of which detention order Annexure P9 was passed. The authorities received information that the petitioner along with his brotherinlaw Surinder Singh, was indulging in sale/purchase of foreign currency on a large scale. The petitioner had been keeping foreign currencies at the residential premises of Smt. Kulwant Kaur w/o Gurmail Singh in village Tanda, Hoshiarpur. On the basis of the information, on 30190 a search was carried out at (1) his residentialcumbusiness premises and (2) that of Smt. Kulwant Kaur. While search of petitioner''s premises led to seizure of documents and Indian Currency of Rs. 1,16,850/ that of Smt. Kulwant Kaur resulted in seizure of documents, including two loosesheets. Surinder Singh was found present at the premises of the petitioner. Both Surinder Singh and the petitioner were summoned for appearance in the office of Enforcement Directorate, Jalandhar for 30190 and their statements were recorded on the same day. The petitioner in his statement affirmed his business abroad and his last visit abroad on 26785. It was admitted that Surinder Singh was working with the petitioner on his hardware shop and his monthly income was Rs. 500/ The documents recovered from petitioner''s pocket were admitted to be his handwritten containing calculations and two dates of 27190 and 29190 and carried the figures as 17000 DM, $ 2000/ DM 6000/ $ 5673, DM 6000/. These calculations were of foreign currencies. A paper was also recovered from the shop with respect to a cheque bearing the date 91188 of some foreign bank. Calculation on another document was also admitted to be in his own hand. The diaries recovered also carried his writing. Surinder Singh in his statement affirmed that he had been working with the petitioner and doing whatever was told by him. He also stated about the transactions inforeign currency of about Rs. 2 lacs per diem. The petitioner was admitted to bail on 6290. As a followup action the residential premises of Parmal Singh were searched on 30.1.90 resulting in seizure of 2 bank pass books. In his statement. Parmal Singh affirmed that his soninlaw Balwinder Singh son of Munsha Singh used to reside near Govt. School, Saila Road, Tanda in Hoshiarpur District. He had been residing in Germany and he had sent one cheque from Germany favouring him and had also sent another cheque with the direction that the same be delivered to his father and search of the premises of Balwinder Singh was then carried out and documents were seized. Only Smt. Sheel Kaur mother of Balwinder Singh was present. However, she could not give any information about the seizure of pass books and bank counterfoils. In view her statement, summonses u/s 40 of the Foreign Exchange Regulation Act were issued to Balwinder Singh and Munsha Singh. The letter appeared on 3290 and affirmed having received a cheque from Balwinder Singh through Parmal Singh and that he had given the cheque to Sarup Singh around December 1988. He identified Sarup Singh petitioner but he could not give further details as to how much amount he received in consideration of the cheque. Dhian Singh, father of the petitioner sent a telegram dated 30190 making allegation against the officers of the Enforcement Agency. The complaint was inquired into and found to be false. It was thus, concluded that the petitioner was indulging in nefarious transactions in foreign exchange in violation of the provisions of Foreign Exchange Regulation Act.

The petitioner has challenged the impugned detention order mainly of the ground that copies of documents which were considered for passing of the impugned order were not furnished to him. These documents were described by him as search authorisation warrants of his residential cumbusiness premises; residential premises of Smt. Kulwant Kaur; residential premises of Parmal Singh and residential premises of Balwinder Singh. He was also not supplied the documents recovered from the possession of Smt. Kulwant Kaur Parmal Singh and Balwinder Singh. He was also not furnished with the inquiry report on the basis of telegram sent by Dhian Singh and the order of the Sessions Judge, granting bail to him. The medicoreports showing injuries on his persons and Surinder Singh were not legible. These were in English language. He is illiterate. Irrelevant material had been taken into account. Recovery of Indian currency could not be treated as smuggling of goods. Single and solitary incident was not sufficient material before the detaining authority to lead to a satisfaction that he would indulge in nefarious activities in future.

During arguments, the main attack levelled on the detention order Annexure P9 was that the petitioner was not supplied with the documents which had been relied upon for passing the impugned detention order. In reply, it has been averred that the search warrants were not relied upon for passing the impugned order and as such the same were not furnished to him. However. details of search warrants were given in the Panchnama and the same having been incorporated in the documents supplied, the petitioner had not been prejudiced. Similarly, the documents seized from the premises of Kulwant Kaur Parmal Singh and Balwinder Singh had not been relied upon for passing the detention order and these were not served on him at the time of detention. However on the request made by him for the supply of these documents (paragraph 5 of representation of the petitioner dated 12590), the same were furnished to him on 6690. In reply to paragraph 8, it has been pleaded that the representation was received in the Ministry on 17590. After processing the papers were forwarded to the Ministry on 25 590. The representation was rejected on 28590.

From these pleadings themselves, the situation that emerges is that before the decision of the representation, the documents asked for by the petitioner, had not been supplied to him. The question that arises for decision is, whether the documents which were not furnished to him before he made the representation were essential for him to make an effective, representation, as envisaged by Article 22(5) of the Constitution of India. In Smt. lcchu Devi Choraria v. Union of India & ors., AIR 1980 SC 1983, their Lordships'' dealt with the controversy of supplying documents, along with the grounds of detention as under :

"Now it is obvious that when clause (5) of Article 22 and SubSection (3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents statements or other materials relied upon in the ground of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and, the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to cl. (6) of Article 22 in order to constitute compliance with, clause (5) of Article 22 and Section 3, subsection (3) of the COFEPOSA Act. One of the primary objects of communicating, the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how, the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, Subsection (3) of the COFEPOSA Act, it is necessary for the valid, continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements, and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. In this requirement of clause (5) of Arti 22 read with section 3, subsection (3) is not satisfied, the continued detention of the detenu would be illegal and void."

In Gurdeep Singh Sarpanch v. Union of India & ors., 1989(1) CLR 108, the Delhi High Court set aside, the detention order passed u/s 3, subsection (3) of the Act on the grounds that the detenu was not furnished with the copies of search authorisation warrant regarding residential premises of the detenu despites specific representation and this deprived him of the fundamental right of filing effective representation against the detention order. The learned Single Judge observed as follows :

"The question that arises, therefore, is as to whether the nonsupply of the search authorisations paripassu with the grounds of detention would vitiate the order of detention and whether the nonsupply of the documents on demand in time even if not considered to be relevant by the detaining authority would also vitiate the order of detention. The law on the subject is very clear. In the case of Vinod Kumar Arora v. Administrator, Union Territory of Delhi and others 1989 Crl. Law Journal 1344 in para 10, at page 1348 the law on this point is settled. This extract in the judgment (supra) itself is from a judgment of the Bombay High Court in Mohd. Hussain v. Secretary, Government of Maharashtra, 1982 Criminal Law Journal 1848, wherein the entire case law was surveyed and the extract reads as under :

"We may, therefore, summarise the law laid down by the Supreme Court on the point as follows :

(a) the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detenu along with the grounds of detention.

(b) the documents which are not relied upon or do not form the basis of the detention order but which are merely referred to casually or incidentally as and by way of narration of facts in the grounds of detention need not be supplied to the detenu;

(c) However, even such documents if the detenu requests for the same have to be supplied to him for whether they are relevant for his defence or not is for the detenu to decide and not for the detaining authority to judge."

In Ashwani Kumar v. Union of India & ors., Criminal Writ Petition No. 2928 of 1989, decided on. 1631990, J. S. Sekhon, J., set aside the detention order for nonsupply of copies of search authorisation warrant of the pre mises of the detenu, resulting in debarring him to exercise his fundamental right to file an effective representation.

Following the doctrines in the above quoted precedent, I hold the impugned detention order to be vitiated for nonsupply of the documents in question to the petitioner to enable him to file an effective representation, I hereby accept the writ petition and quash the impugned detention order and order that he be released forthwith.