TMI Blog2006 (11) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... rs being his family members. On receipt of information about irregularities committed by the detenu, a search of the premises of Sandip Exports Ltd. was conducted by the Directorate of Revenue Intelligence on 7.11.2003. The search and the investigations disclosed that M/s. Sandip Exports Ltd. had obtained two Annual Advance Licences dated 28.3.2001 and 22.3.2002 on actual user conditions from the Director General of Foreign Trade, Kolkata, as manufacturer-exporter. The said Annual Advance Licences issued under the Duty Exemption Entitlement Certificate Scheme ('DEEC Scheme' for short) enabled the Licensee to import goods free of duty subject to the condition that the Licensee shall manufacture and export products (by utilizing the imported goods) within 18 months, the quantity and value being as specified in the licences in terms of Customs Notification No. 48/99 dated 29.4.1999 as amended from time to time. The detenu imported different types of polyester and silk yarn/fabric, duty free, under the scheme by using the said licences of Sandip Exports Ltd. The duty foregone on importations made under the said two Advance Licences was ₹ 14 crores. Instead of utilizing su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re furnished to the detenu on 14.11.2005. As the detenu claimed that he had no working knowledge of Hindi, English translations were furnished to him on 16.11.2005. 5. The detenu made a representation against his detention to the detaining authority on 25.11.2005. The said representation was rejected by the Detaining Authority on 7.12.2005 and the same was communicated to the detenu on 13.12.2005. On 14.12.2005, the detenu's mother filed W.P. No.23908/2005 in the High Court of Calcutta, seeking quashing of the detention order dated 19.8.2004 and release of the detenu. 6. The detenu made a representation to the Advisory Board constituted under the COFEPOSA Act on 16.1.2006. The Advisory Board gave a hearing on 19.1.2006 and recommended confirmation of the detention. On receiving a copy of the representation to the Advisory Board along with the report of the Advisory Board on 27.1.2006, the Central Government confirmed the detention on 1.2.2006. The representation dated 16.1.2006, copies of which were furnished to the detaining authority and Central Government, was also independently considered by them. The Detaining Authority by order dated 10.2.2006 rejected the represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made under Rule 7 of the Foreign Trade (Regulations) Rules, 1993). The detaining authority could not therefore apply his mind to all relevant material before making the order of detention. (ii) Several sheets among the copies of the documents supplied to the detenu, were illegible and this came in the way of the detenu making an effective representation for his release. (iii) There was inordinate delay in considering the representation dated 7.2.2006 by the detenu submitted to the Central Government and communicating the decision to the detenu. Re : Point No. (i) 9. A detention under COFEPOSA Act is anticipatory and preventive. It is neither punitive nor curative. Preventive detention being one of the two exceptions to the constitutional protection under Article 22 against arrest and detention, certain procedural safeguards are provided in respect of exercise of the power to direct preventive detention. The procedural safeguards under the Constitution have been interpreted, to require every material which is relevant, having a bearing on the question as to whether a person should be detained under the Act, to be placed before the detaining authority, as the decision t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fits to M/s Sandip Exports Limited till finalization of the proposed action against the said company), before the detaining authority. According to him, it was a relevant document and the non-consideration of the said document vitiated the order of detention. The fact that the said document was available in the records of the sponsoring authority, but was not placed before the detaining authority, is not disputed by the respondents. Though the High Court has referred to the contention relating to the said document (order dated 15/20.4.2004), it did not specifically deal with it. 11. A document is relevant for considering the case of a person for preventive detention if it relates to or has a bearing on either of the following two issues : (a) Whether the detenu had indulged in smuggling or other activities prejudicial to the State, which the COFEPOSA Act is designed to prevent; and (b) Whether the nature of the illegal and prejudicial activity and the manner in which the detenu had indulged in such activity, gave a reasonable indication that he would continue to indulge in such activity. In other words, whether he had the propensity and potentiality to continue the prejudicial a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities through a new company. It should also to be noted that whenever any irregularities/violations in regard to export/ import comes to the attention of the department, the benefits are stopped in the normal course, pending finalization of further action. Therefore, it cannot be said that the document whereby EXIM benefits to one of the companies controlled by the detenu was stopped, was a 'relevant' document, non-consideration of which would vitiate the detention order. The first contention is therefore rejected. Re : Point No. (ii) 14. It is contended on behalf of the detenu that several sheets in the copies of documents furnished to him, were illegible and that prevented him from making an effective representation. It is submitted that the procedural safeguard under clause (5) of Article 22 requires the grounds of detention to be communicated to the detenu and this would mean not only the grounds but also the documents on which reliance was placed to formulate the grounds that led to the detention. It is further submitted that the documents required to be furnished, should be legible and in a language known to the detenu so as to enable the detenu to give an ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the department could do no better than to furnish the copies thereof. If the documents furnished by the detenu to the department contained some portions or pages which were illegible, obviously the copies thereof furnished by the detaining authority to the detenu will also contain such illegible portions. The learned counsel for the appellant contented that if really any document furnished by the detenu was illegible, it could not have been used against the detenu.. But this contention overlooks the fact that a document may contain several sheets and illegibility of some sheets or parts of some sheets will not come in the way of the authorities making use of the legible portions of the documents furnished by the detenu, supplemented by other documents secured during investigation. There is nothing strange in the department making use of partially legible documents furnished by detenu. Therefore, illegibility of portions of documents which are copies of documents furnished by the detenu, cannot be a ground for grievance by the detenu. Insofar as the allegation that some of the sheets between pages 124 to 371B were illegible, the High Court after having gone through the copies of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; that there was no express language in Article 22(5) requiring the State Government to consider the representation of the detenu. But it is a necessary implication of the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to It and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality. In Sk. Rashid vs. State of West Bengal [AIR 1973 SC 824], this Court interpreting the words 'as soon as may be' occurring in clause (5) of Article 22, held as follows : The use of the Words as soon as may be is important. It reflects the anxiety on the part of the framers of the Constitution to enable the detenu to know the grounds on which the order of detention has been made so that he can make an effective representation against it at the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government, and (iii) Advisory Board, in regard to the detention. The detenu has a constitutional as also statutory right to make a representation against detention not only to the Detaining Authority but to any authority which can revoke the order of detention. He can also represent to the Advisory Board constituted under section 8 of COFEPOSA Act. Such representations no doubt should be disposed of by the concerned authority as early as possible. The fact that the Detaining Authority or the Advisory Board have rejected the representation of the detenu does not discharge the Central Government from its responsibility to consider and dispose of the representation expeditiously. 20. The grievance of the detenu is in respect of the representation to the Central Government on 7.2.2006 which was rejected by the Central Government and the detaining authority, by two separate orders dated 22.2.2006. The Central Government in its counter-affidavit has satisfactorily explained how the time between 7.2.2006 and 22.2.2006 was spent. But the said orders dated 22.2.2006 rejecting the representation was served on the detenu only on 18.3.2006. The reason why the rejection orders dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
