TMI Blog2006 (4) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1986. His father was a Government Servant working in a Local Administrative Department at Trichy. During 1988-89, the detenue came to Madras and worked as a Trainee in Madras Builders' Office. Later, he entered the field of real estate business and came in contact with others in that business. A firm was formed in 1991 by name M/s. Emerald Promoters Pvt. Ltd. The detenue married the present appellant in 1992. Apart from M/s. Emerald Promoters Pvt. Ltd., the detenue had an interest in some other financial concerns as well. The detenue was also the proprietor of M/s. T.C.V. Engineering Pvt. Ltd. in Madras. In 1995, the Enforcement Directorate received certain information that the detenue was engaged in transactions in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (hereinafter being referred to as FERA ). Notices were issued to the detenue under Section 40 of the FERA on 12.7.1995, 15.7.1995, 3.8.1995, 17.10.1995 and 25.10.1995. According to the Enforcement Directorate, the detenue evaded all these notices for about four months and ultimately the detenue was examined and his statements were recorded on various dates starting from 1.11.1995 to 31.1.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Board within a period of five weeks, stipulated under Section 8(b) of the COFEPOSA Act. It was urged that the representation addressed to the Joint Secretary was not placed before the Advisory Board and the same should have been sent to the Advisory Board within a period of five weeks from the date of reference. The reference had been made to the Advisory Board on 22.2.1996 enclosing one set each of the Order of detention along with the grounds of detention and other documents. The first meeting of the Advisory Board was scheduled on 22.3.1996, but the reference was not considered on the said date. The learned Counsel for the appellant contended that while making reference to the Advisory Board under Section 8(b), the entire documents were not sent to the Advisory Board. It was pointed out by learned Counsel for the appellant that the detention order was executed on 7.2.1996 and the period of five weeks from the date of execution would expire on 14.3.1996, but all the relevant documents were sent to the Advisory Board only on 23.3.1996. This, according to the appellant, is in gross violation of Section 8 of the COFEPOSA Act. As per Section 8(b) of the COFEPOSA Act 1974, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of the right guaranteed under Article 22 of the Constitution. The fact that merely because some of the materials were inadvertently not sent along with the reference, will not vitiate the proceedings. Strong reliance was placed on the decision of this Court in Icchu Devi Vs. Union of India and others (1980) 4 SCC 531. That is a case where the order of detention under Section 3(1) of the COFEPOSA Act was served on the detenue on June 4, 1980 and when the detenue was arrested on May 27, 1980 he was given the grounds of detention. The grounds of detention referred to several documents and statements and the detenue demanded for copies of the documents, statements and other materials. It was only in July 11, 1980 that the copies were supplied but still copies of some other records were not given. There was a delay of one month in the supply of copies of document. In the fact situation of the above case, this Court held that the burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority in view of the clear and explicit terms of Article 22 of the Constitution. It was also held that the right to be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of three months and it reached COFEPOSA Section on 3.6.1996 and on 6.6.1996 para-wise comments were sought and the representation was rejected only on 26.6.1996. This according to the appellant's learned Counsel caused serious prejudice to the detenue and this inordinate delay by itself is sufficient to set aside the detention order. Reference was made to various decisions. In B. Alamelu Vs. State of Tamil Nadu and Others AIR 1995 SC 539, there was a delay of 84 days in forwarding a copy of the representation to the Central Government and that was held to be in violation of the procedure and the detention was held to be illegal. That is a case where the wife of the detenue sent a representation addressed to the Superintendent of the Central Prison where the detenue was kept in prison. In the representation, it was specifically stated that it should be sent to the persons mentioned in the grounds of detention. The Superintendent of the Central Prison did not send a copy of the same to the Central Government in time and there was a delay of 84 days in sending the same to the Central Government. That was held to be a serious violation of the right guaranteed under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed mainly due to non- availability of the translated copy of the representation. The representation was made in Tamil and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation. It is true that this court in series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside. Nevertheless, it may be noticed that if the delay is reasonably explained and that by itself is not sufficient to hold that the detenue was bad and illegal. In Smt. K. Aruna Kumari Vs. Government of A.P. Ors. (1988) 1 SCC 296 relying on State of U.P. Vs. Zavad Zama Khan (1984) 3 SCC 505 this Court held that there is no right in favour of the detenue to get his successive representations based on the same grounds rejected earlier to be formally disposed of again and also pointed out that in any event no period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elays should be avoided. The contention raised by the appellant's learned Counsel is that some of the relevant materials were not placed before the detaining authority and the omission to place those materials before the detaining authority had caused serious prejudice to the detenue. It was urged that the investigating authorities had collected the materials and once these materials were received by the sponsoring authority, they had no right to edit and decide which materials were relevant and they were bound to send the entire materials to the detaining authority. The learned Counsel for the appellant drew our attention to some of the relevant documents which were not placed before the detaining authority. This contention was elaborately considered by the Division bench and it was held that all relevant materials were placed before the detaining authority. The contention of the appellant is that the reply of N.C. Rangesh and several other documents were not placed before the detaining authority and the satisfaction arrived at by the detaining authority was incorrect and the detention was illegal. It was contended that the sponsoring authority did not place the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
