TMI Blog1995 (1) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... 500 were recovered. Out of these travellers cheques 5000 Us dollars issued in his name were returned to him and travellers cheques worth 4500 Us dollars issued in the name .of one Sunder Lal bearing the signatures for full encashment were seized under Section 110 of the Customs Act as the petitioner was not able to offer any evidence for their lawful exportation. Consequent to the seizure, a Panchanama was prepared on the spot on December 10,1993. The air ticket of the petitioner for Delhi Kualalampur Singapore - Calcutta -Delhi Sector and boarding card were also taken into possession by the customs officer Along with his passport. The brother of the petitioner who was to travel Along with him was also intercepted. He voluntarily ejected two bundles of foreign currencies from his rectum in the departure hall toilet, in the presence of two witnesses. These bundles contained foreign currencies equivalent to ₹ 5,34,290.00 . The statements of the petitioner and his brother were re corded under Section 108 of the Customs Act in which the recovery and seizure was admitted in the manner stated above. Bhupinder Jit Singh also confessed that the currency recovered from him was given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernor of Delhi, seeking revocation of detention order passed against him on the ground that the grounds of detention were served on him on the 6th day of the service of the detention order i.e. beyond the statutory period of five days as provided by Section 3(3) of the COFEPOSA Act rendering the detention illegal and vocative of Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act This representation was rejected by the detaining authority on April 22, 1994. Thereafter the petitioner submitted an independent and separate representation to the Advisory Board dated May 6,1994 which was followed by another representation dated May 10,1994. Both the representations again raised a question of interpretation of Section 3(3) of the COFEPOSA Act. These representations were ultimately rejected by the Delhi Administration and the detention was confirmed on June 1, 1994 by the order of the Lt. Governor. National Capital, Territory of Delhi (4) In the meantime, however, on May 30,1994, the petitioner made a fresh representation to the Lt.Governor, National Capital, Territory of Delhi. This representation was considered by the Government and the same was rejected on June 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation against the detention. Section 3(3) following Article 22(5), reiterates that the grounds of detention shall be conveyed to the detenu as soon as maybe after the detention. While repeating the mandate of Article 22(5), it requires that ordinarily the grounds of detention be conveyed to the detenu not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. Specific prescription of time has been laid down in Section 3(3) as the expression as soon as may be occurring in Article 22(5) does not connote the precise and definite time within which grounds of detention are required to be conveyed to a detenu. The expression as soon as may be merely indicates that the act must be done without avoidable or unreasonable delay. On reading Section 3(3) it is clear that the words not . later than five days from the date of detention are used for laying down a definite time limit within which grounds of detention must be communicated to the detenu. Then word from occurring therein is very significant and holds the key to the interpretation of the provision, cannot be lost sight of. It is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awson Bentley Co.Ltd. (1961)2 Qb 135, a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action was excluded. (See also Stewart v. Chapman (1951) 2 Kb 792 and in re. North Ex parte Lasluck (1895) 2 Qb 264. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (See Halsbury's Laws of England, (3rd Edition) Vol.37 pp.92 and 95). There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here. 6. In computing the period of three months from the date of detention, which was February 5,1971, before the expiration of which the order or decision for confirming the detention order and continuation of the detention there under had to be made, the date of the commencement of detention, namely, February 5,1971 has to be excluded. So done, the order of confirmation was made before the expiration of the period of three months from the date of detention. (9) Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as Section 3(3) of the COFEPOSA Act is a part of a preventive detention law. Section 9 of the General Clauses Act should not be used for interpreting . the same. This argument losses sight of the decision in Ham Das Gupta's case (Supra), which was also a case under the preventive detention. The Supreme Court while interpreting Section 12 of the West Bengal (Prevention of Violent Activities) Act,1970, invoked the principle which is mirrored in Section 9 of the General Clauses Act, namely, where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. As already pointed out in Section 3(3) of the COFEPOSA Act the word from has been used for the purpose of signifying the day when the time given for the purpose of serving the grounds of detention would start running. There is ample authority for the proposition that the word from is similar to the word after . In Srinivasa Silk Mills, Seshadripuram and others Vs State of Mysore and others Air 1962 Mys 117 it was held that the word from is akin to after and if the word from is used for the purpose of and in reference to the computation of time, as for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll forthwith report the fact to the State Government, but the word forthwith' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indication that the said period shall be computed after the order is made. In other words, sub section (4) itself excludes the day on which the order is made. Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order. It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted. In our opinion, sub- section (4) admits of only one interpretation regarding the computation of twelve days and accordingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise . (12) Therefore, on the same reasoning, the words as soon as may be cannot control the computation of 5 days as in Section 3(3) of the COFEPOSA Act there is a clear indication that the period has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution read with Section 11 of the Act in as much as the petitioner had been denied the benefit of Section 11 of the COFEPOSA Act which inter alia, confers supervisory power on the Central Government. In support of this proposition learned counsel for the petitioner heavily relied on the decisions of the Supreme Court in Smt.Gracy Vs. State of Kerala and another 1991(1) Crimes 552, Amir Shad Khan Vs. L.Hmingliana and others 1991CriLJ2713 and Jai Parkash vs. District Magistrate. Bulandshahr, U.P. and others 1993 Scc 121. (15) It is not denied by the learned counsel for the respondent that the representations Annexure G and G-1 to the petition (pages 41 to 44 of the petition) were not sent to the Central Government. As already seen these representations were addressed to the Chairman Advisory Board and' members thereof. The point taken in the representations is regarding the interpretation of Section 3(3) of the Act, i.e. how the time prescribed for communicating the grounds of detention is to be counted. It is not the case of the petitioner that Advisory Board failed to consider the representation or the State Government while confirming the detention order, did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment had expired. Therefore these representations could not have accompanied the report sent by the State Government to the Central Government. In any event Section 3(2) requires a report to be sent to the Central Government about the detenu's detention but it does not talk of the representation of a detenu being sent Along with the same. In none of the cases cited by the learned counsel for the petitioner nor have we come across any decision, in which it has been held that Article 22(5) of the Constitution imposes a duty on the State Government to transmit the representation of a detenu to the Central Government when the same has been addressed to an authority other than the Central Government and when the Central Government does not happen to be the detaining authority. In case the petitioner wanted. revocation of the detention order by the Central Government, he could have made a representation to the Central Government or he could have requested the State Government to transmit the representations, Annexures G and G-1, to the Central Government. At this juncture it may be relevant to point out that subsequently on June 26,1994 the petitioner made a representation to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government's obligation to 'refer the case of the detenu Along with representation to the Advisory Board to enable it to form its opinion. 3. It is implicit in Article 22(4) and (5) that the Government while discharging its duty to consider the representation cannot depend upon the views of the Advisory Board on such representation. It has to consider the representation on its own without being influenced by any such view of the board. The right of the detenu to have his representation considered by the Government is safeguarded by Article 22(5) and is independent of consideration by the Advisory Board under Article 22(4). 4. The Government considers the representation to see whether the order is inconformity with power under the law and the board considers it to ascertain whether there is sufficient case for detention. 5. If there be only one representation by the detenu addressed to the detaining authority the obligation arises under Article 22(5) of the Constitution of its consideration by the detaining authority independent of the opinion of Advisory Board in addition to its consideration by the Advisory Board. In other words one representation of the detenu to the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (25) In Phillippa Anne Duke Vs. State of Tamil Nadu and others : 1982CriLJ1389 the Supreme Court was considering whether Bout de Papier handed over to the Prime Minister of India during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by the British High Commission could be considered as representations to the Central Government under Section 11 of the COFEPOSA Act. The Supreme Court held that it was not possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as representations to the Government of India requiring the appropriate authority under COFEPOSA Act to consider the matter under Section 11 of the COFEPOSA Act. (26) In Smt.Pltshpa Vs. Union of India and others 1979CriLJ1314 it was held that undoubtedly it would be open to the detenu to make representation under Section 11 of the COFEPOSA Act requiring either the State Government or the Central Government's the case may be, to revoke the order of detention. But the initial representation under Article 22(5) of the Constitution would ordinarily lie to the detaining authority as it is that authority whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government and the State Government having failed to comply with the request held that the orders of detention stood vitiated. The facts of the present case are different from the facts of Amir Shad Khan's case (Supra). In the present case there was no request of the detenu for forwarding the representations dated May 6, 1994 and May 10, 1994 to the Central Government. Accordingly, the submission of the learned counsel for the petitioner that the non-consideration of the petitioner's representation dated May 6, 1994 and May 10,1994 by the Central Government has resulted in violation of Article 22(5) of the Constitution and Section 11 of the COFEPOSA Act, is not tenable. (30) Since in the present case there was no communication whatsoever from the detenu requiring the State Government to send the representations dated May 6,1994 and May 10, 1994 to the Central Government, we are of the opinion that the State Government was under no obligation to have the representations of the petitioner dated May 6, and May 10 of 1994 transmitted to the Central Government. (31) Learned counsel for the petitioner also submitted that the petitioner received a set of grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present in the court on February 21, 1994. In the end the petitioner prayed that production warrants should be sent to the Jail for his presence in the court. The other document is also a copy of the application filed in the court of Acmm, New Delhi seeking return of the unused air tickets of the petitioner and his brother which had been seized by the Customs Officer. In this application the petitioner stated that he was arrested by the Customs Officer at the Igi Airport, New Delhi and at that time the unused air tickets, were seized Along with boarding card by him. The petitioner prayed that the air tickets and boarding card be returned to him. From a perusal of the documents it appears some portions thereof pertaining to his arrest and release on parole in connection with the customs case are relevant. As long as the documents contain some material, which is relevant it cannot be said that the detaining authority considered extraneous and irrelevant material.Thus the submission of the learned counsel for the petitioner is without force and the same is rejected. (34) Lastly it was contended by the learned counsel for the petitioner that there was inordinate delay on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the representation made. The sponsoring authority furnished their comments vide their letter dated 5.7.94 and the same were received in the COFEPOSA Unit on 6.7.94. (25th, 26th June, 1994 were Saturday and Sund and 2nd and 3rd July,1994 were also Saturday and Sunday respectively). The case was processed and submitted to the Joint Secretary (COFEPOSA ) on 7.7.94, who after due application of mind, rejected the representation on 12.7.94.(9th and 10th July,94 were Saturday and Sunday). A memo intimating the detenu about rejection of his representation by the Central Government was also issued on 12.7.94 (37) Reading of the aforesaid para of the counter affidavit reveals that the Superintendent, Tihar Jail, Delhi forwarded the representation of the petitioner to the second respondent on June 20,1994 itself. The representation was received in the COFEPOSA unit of the Ministry of Finance on June 22,1994. The same was placed before the concerned authority on the same date. On June 22, 1994 itself, the authority called for the paradise comments of the sponsoring authority on the representation of the petitioner. The sponsoring authority dispatched its comments on the 13th day by it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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