TMI Blog1995 (2) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Fera Authorities for the prosecution of the petitioner on which process was issued by the Acmm against the petitioner. According to the petitioner he was never properly served and apprehending his false implication in the case, he preferred two petitions before the High Court of Calcutta for grant of relief restraining the respondents from detaining the petitioner under the provisions of FERA. After receiving the process from the court of Acmm in respect of the complaint under Sec. 56 of the Fera the petitioner filed an application under Sec. 242(2) Criminal Procedure Code for his discharge. Acmm also passed the order for the presence of the petitioner. Petitioner proceeded from Calcutta to Delhi but according to the averments made by him in the petition on 29.3.94 he was again apprehended under Sec.107/151 of the Code and was remanded to judicial custody from the court of Executive Magistrate, Seelampur. There after the wife of the petitioner informed, by way of filing an application before the Acmm, that the petitioner is confined to judicial custody with the request that if any statement has to be recorded by the respondents they can do so in jail or on petitioner's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nam Singh, Deep Chand, agreement between S.Tarsem Singh Chacha and K.S.Kaushal in support of currency worth ₹ 50 lacs, the telegram dated 29.10.93 by the wife of the petitioner and telegram dated 8.5.94 addressed to the Finance Minister, copy of the Kalandara vide Dd No.20A were not placed before the detaining authority otherwise the detaining authority would not have conceded the demand of the Sponsoring Authority for detaining the petitioner under COFEPOSA. (7) Mr. Khan has further contended that the documents which are not relevant and germane to form the subjective satisfaction of the detaining authority have been supplied to the detenu on which the subjective satisfaction of the detaining authority is based which shows complete non-application of mind of the detaining authority. Certain documents pertaining to Tarsem Singh who has claimed ₹ 50 lacs seized by the Enforcement Directorate belonged to him for which he filed a petition before the High Court of Punjab Haryana at Chandigarh have not been considered. Had the detaining authority considered the documents, no detention order could have been passed by the detaining authority. Mr.Khan has further contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elihood of his release from judicial custody and in the absence of imminent likelihood of his release from the custody the detention order is bad as preventive detention should not be resorted in such cases. In support of his arguments that when the petitioner was already in judicial custody clamping order of detention amounts to double detention the learned counsel for the petitioner has cited Vijay Kumar Vs.State of J. K. and Others ; Binod Singh Vs. District Magistrate, Dhanbad , N.Meera Rani Vs. Govt. of Tamil Nadu and another 1989 Cr.L.J. 2190; Umesh Bhatia Vs. Union of India Ors. 1994 C.C.Cases 314 and Mohd. Razak Mohd.Sadiq Vs.Mahendra Prasad Anr 1991 Jcc 559. The learned counsel for the petitioner has also assailed the detention order on the ground that the illegible and incomplete material was supplied to the detenu which was supplied to the detenu on 30.6.94. However, representation in this regard was made by the petitioner on 30.5.94 and that was to be supplied prior to the hearing before the Central Advisory Board and non- supply of material affected the right of the detenu to make an effective representation before the Advisory Board. It was also contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Vs. Union of India Ors. 1993 Jcc 106, Md.Shahbuddin Vs. The District Magistrate 24 Parganas and Others. and Surinder Kumar Vs. Union of India and Another 1993 Jcc 414. He has also argued that statement of co-accused was taken for arriving at the subjective satisfaction of the detaining authority which was also bad in law. Mr.Khan has also argued that relevant documents were not supplied to the detenu and were not placed before the detaining authority. Mr.Khan has also taken objection to the filing of the counter-affidavit of Mr.K.L.Verma instead of Mr.Mahendera Prasad under whose signatures the detention order were served and has argued that the affidavit ought to have been filed by Shri Mahender Prasad himself as he had himself perused all the documents placed before him before he passed the detention order as he was the person who has formulated his subjective satisfaction to the grounds of detention. Therefore, return filed by Shri K.L.Verma should be ignored by this court. In support of his contention he has cited Special Criminal Application No.931 of 1994 with Special Criminal Application 942 of 1994 with Special Criminal Application No.943 of 1994 and Special Criminal A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual inferences but meant factual inferences plus factual material which led to such factual inferences. In Icchu Devi Choraria v.Union of India, the Court observed (at p.1989) : 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. The stress was upon the words relied upon . In Khudiram Das v.State of West Bengal the Constitutional requirement of Art. 22(5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art.22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of statement of Surnam, Rameshwar Dass and Prem Parkash as well as prescribed by bank account of leasing company, Bmr Enterprises and statement of the petitioner recorded in the jail premises that the petitioner was deliberately involved in the compensatory payment racket. In support of his submission he has also cited Kamarunnissa's case (supra) and . (16) MR.KHAN has also contended that there was undue delay in disposing the representation of the petitioner as the representation was made on 6.6.94 and there was delay of 49 days and no explanation for the delay has been forthcoming in the counter filed by the respondent. He has cited Smt.Gurmeet Kaur's case (supra) to support his contention that delay in disposing of the representation is fatal. (17) MR.LOKUR has contended that any delay in consideration of the representation has been explained. (18) It has been contended by the learned counsel for the respondent that detention order was served on the petitioner on 2.5.94 and the grounds of detention along with documents were served on 5.5.94. The representation was made by the petitioner on 30.5.94 seeking supply of additional documents the same was consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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