TMI Blog2011 (12) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... artment of Revenue, Central Economic Intelligence Bureau, Janpath Bhawan, Janpath, New Delhi) against the detenu (Shri Harmesh Arora). It is also prayed that a direction be issued that the said detenu be released from detention and be set at liberty forthwith. The petition has been filed by the mother of the said detenu. 3. The detention order has been challenged, primarily, on two grounds. One ground of challenge is that the detenu has not been supplied with the relied upon documents, which were meant for him. It is the case of the petitioner that the relied upon documents that were given to the detenu were those which related to Shri Mohan Lal Arora (the detenu s father). As a consequence, the documents, which were meant for the detenu, have not been supplied to the detenu. It is, therefore, contended on behalf of the detenu that the impugned detention order is vitiated inasmuch as the procedural safeguard of supply of relied upon documents pari passu the execution of the detention order and the supply of the grounds for detention has not been followed. The other point urged on behalf of the detenu is that the grounds of detention, which have been served upon the detenu, indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the representation would be considered by an empowered person and, therefore, the detenu can have no grievance on this ground. 5. Before we consider these rival contentions and examine the decisions cited by the learned counsel, it would be appropriate to set out some facts. 6. On 25.10.2009, officers of the Directorate of Revenue Intelligence commenced search and seizure operations at the office and residential premises of the detenu (Harmesh Arora) as well as of one Harish Chaudhary. On 07.11.2009, the detenu was arrested for the alleged offences under Sections 132 and 135 of the Customs Act, 1962. On 29.12.2009, he was released on bail. The impugned detention order was issued on 08.09.2011 by the respondent No.2 (Rasheda Hussain, Additional Secretary to the Government of India) purportedly in exercise of the powers conferred under Section 3(1) of the COFEPOSA Act for preventing the detenu from engaging in smuggling activities in future. The grounds of detention were also issued on the same date, i.e., on 08.09.2011 under the signatures of the said respondent No.2. On 29.11.2011, the detenu, on coming to know that a detention order has been passed against him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detaining authority is the respondent No.3 inasmuch as the representation is to be made to him. Para 28 (i) of the grounds of detention reads as under:- Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing Janpath Bhavan, Janpath, New Delhi-110001. Non-supply of relied upon documents 10. It is an admitted fact that the list of documents furnished to the detenu (Harmesh Arora) was, in fact, not meant for him, but for his father (Shri Mohan Lal Arora) as the list itself was titled: List of relied upon documents: Shri Mohan Lal Arora . The learned counsel for the petitioner submitted that, if the documents are not supplied pari passu the grounds, the order of detention is rendered void ab initio. For this proposition, he placed reliance on the Supreme Court decision in the case of M. Ahamedkutty v. Union of India and Another: 1990 (2) SCC 1. The learned counsel for the respondents, on the other hand, relied upon a decision of a Division Bench of this court in the case of Vijay Kumar Gupta v. Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of holding that it was immaterial as to whether the detenu already knew about their contents or not. The exact words used by the Supreme Court are as under:- 20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra: 1981 (2) SCC 709, it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. Delhi Administration 1982: 1982 (3) SCC 216, it was reiterated that it being a Constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with procedural safeguards more often results in infringement of the safeguard and vitiates the detention. Section 3(3) of the COFEPOSA Act reads as under:- 3. Power to make orders detaining certain persons. (1) xxxxx xxxxx xxxxx xxxxx (2) xxxxx xxxxx xxxxx xxxxx (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily 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. 15. So, as per Section 3(3) of the COFEPOSA Act, the grounds of detention have to be supplied to the detenu as soon as may be after the detention , but, ordinarily 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. There is no claim of any exceptional circumstances on the part of the respondents. As such, the grounds ought to have been furnished within five days of the detention, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rank of a Joint Secretary to that Government, specially empowered for the purposes of Section 3, may make an order of detention. In other words, the officer, who is to function as a detaining authority under the COFEPOSA Act, must not be below the rank of a Joint Secretary to the Government of India and that such officer must also be specially empowered for the purposes of the said Section. There is no dispute with the fact that Smt Rasheda Hussain was specially empowered for the purposes of Section 3 of the COFEPOSA Act by virtue of an order dated 17.06.2011 which was also published in the Gazette of India. The order reads as under:- MINISTRY OF FINANCE (Department of Revenue) (CENTRAL ECONOMIC INTELLIGENCE BUREAU) ORDER New Delhi, the 17th June, 2011 S.P.1418(E). In exercise of the powers conferred by sub-section (1) of Section 3, of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), the Central Government hereby specially empowers Smt. Rasheda Hussain, Additional Secretary to the Government of India, for the purpose of the said Section. 20. It is apparent that Smt. Rasheda Hussain was spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hussain was empowered by name and not by virtue of office. Therefore, her transfer would not alter her position as a detaining authority in respect of the detenu (Harmesh Arora). There is no order revoking her authority to function as a detaining authority under Section 3(1) of the COFEPOSA Act. It might have been a different matter if Smt. Rasheda Hussain had retired or resigned from service. But, that is not the case. It was argued that she continued to be an Additional Secretary to the Government of India and, therefore, her authority to act under Section 3(1) of the COFEPOSA Act continued, at least, insofar as the detenu (Harmesh Arora) was concerned. Thirdly, the power of the detaining authority to consider a representation flows from Section 21 of the General Clauses Act, 1897 which provides that where, by any Central Act or Regulation a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and condition (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. Thus, the representation must be addressed to and considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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