USHA AGARWAL v. UNION OF INDIA AND ORS

Citation: [2006] SUPP. 8 S.C.R. 342

Court: Supreme Court of India

Bench: S.H. KAPADIA, R.V. RAVEENDRAN

Case summary

USHA AGARWAL v. UNION OF INDIA AND ORS.pdf

Judgment text

USHA AGARWAL V. UNION OF INDIA AND ORS. NOVEMBER 2, 2006 [S. H. KAPADIA AND R. V. RAVEENDRAN, JJ. ] Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Section 3(1)-Director ofcompany indulging in systematic and organized import-export fraud by diverting goods, imported duty free for manufacture of goods for export, into domestic market-Grant of all EXIM benefits to company stopped after detection offraud-Order ofdetention passed against director ofcompany-Order stopping EXJM benefits not placed before detaining authority-Detention order challenged-Held, every relevant material having .

D bearing on the detention ofa person should be placed before the detaining authority-Sponso~ing authority should not place documents selectively before detaining authority-Failure to place relevant material before detaining authority may vitiate detention order-Jn the facts held, document stopping EXIM benefits to company controlled by the detenu was not a relevant document, non-consideration of which would vit~ate the detention order- Constitution ofIndia, 1950-Artic/e 22. S was Director in-charge of management of company L in which other Directors were his family members. L was availing EXIM benefits under the Duty Exemption Entitlement Certificate Scheme (DEEC) and upon detection of irregularities by S, grant ofall EXIM benefits to L were stopped by order dated 15/20. 4. 2004.

Thereafter, a detention order under Section 3(1) of Conversation of Foreign Exchange and Prevention of Smuggling A t be said that the document whereby EXIM benefits to one ofthe 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 effective representation against the detention; that if the documents are not legible or in a language not known to the detenu, then it is as bad as not furnishing the documents; and that furnishing of copies of documents is not a mere formality but an integral part of the right of the detenu assured under the Constitution. It is contended that the order of detention is vitiated on account of the following pages of the documents furnished to the detenu being not legible :- Page Nos. 124-128, 160-178, 186, 254, 255, 257, 350, 352, 357, 358, 360, 362, 368-371, 371A, 3718, 493, 497, 500, 508, 510, 515, 516, 523, 534, 538, 543, 550, 551, 608, 6ll, 616-21, 623-37, 682-701, 745, 750, 755, 760, 765,769-70, 777, 780,821,841-43,857-65,872, 874, 882, 884, 887 and the last page. 15. In Dharmishta Bhagat v.

State ofKarnataka, [1989] Supp. 2 SCC 15, this Court has held that 'refusal' on the part of the detaining authority to supply legible copies of 'relevant' documents to the detenu for making an effective representation infringes the detenu's right under Article22(5) of. the Constitution. This Court observed : "Therefore, it is imperative that the detaining authority has to serve the grounds ofdetention which include also all the relevant documents which had been considered in forming the subjective satisfaction by t. he detaining authority before making the order of detention and referred to in the ! ist. of documents accompanying the grounds of detention in order to enable . the detenu to make an effective representation . to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i. e.

panchnama dated February 12, 1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal ap n is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should properly consider the representatfon as expeditiously as possible. The constitution of an Advisory Boardunder Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said 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 v. 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 ofthe 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 earliest. The ultimate objective of this provision can only be the most speedy consideration ofhis representation by the authorities concerned, for, without its expenditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion. Now, whether or not the State Government has in a given case USHAAGARWAL v. U. 0. l.

[RAVEENDRAN,JJ 357 considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal" In Kamleshkumar /shwardas Patel v. Union ofIndia, [1995] 4 SCC 51, this Court observed thus :- "Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order ofdetention comprehends the right to make such a representation to the authority which can grant such relief, i.

e. , the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premises that such right does not flow from Article 22(5) cannot, therefore, be accepted. " This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention. 19. The order of detention states that detenu can make representations to (i) Detaining Authority, (ii) Central 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 ofthe 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. 2. 2006 were not served till 18. 3. 2006 on the detenu remains unexplained. In fact the respondents· have admitted this unexplained delay in their counter filed in this· Court. We extract below the relevant portion :- "In this connection, it is submitted that the Superintendent, Presidency Correctional Home, Kolkata was requested to serve the original of the said two memorandums on the detenu and obtain signature thereon which he did on 18th March, 2006. IG (Prisons) and Chief Secretary, Government of West Bengal, have been asked to look into the -circumstances leading to delayed submission of rejection memos to the detenu. " 21. The grievance of the detenu is in regard to the delay in communicating the decision dated 22. 2. 2006 of the Central Government till 18. 3. 2006.

The learned counsel for the respondent however relied on the decision of this Court in Abdul Razak Dawood Dhanani v. Union ofIndia, [2003] 9 SCC 652, to contend that delay on the part o(the Central Government in considering the detenu's representation or the delay in communication of such decision on the detenu will not be material, where the Central Government has already considered the representation of the detenu and rejected it and what is delayed is the decision on the second representation. In that case, the representation dated 12. 4. 2002 given by the detenu to the three authorities namely, Advisory Board, Detaining Authority and Central Government were rejected respectively by orders dated 19. 4. 2002, 06. 5. 2002 and 08. 5. 2002. In additi9n to the first representation dated-12. 4. 2002, the detenu had submitted a further representation dated 19. 4.

2002 to the Central Government and the grievance was that the second representation had not been disposed of by the Central Government by a separate order. This Court rejected the contention on the ground that the second representation dated 19. 4. 2002 contained the same grounds and same material as contained in the first representation elated 12. 4. 2002 and in the absence of any fresh ground or material or subsequent event justifying the consideration of the second representation, the Central Government was not bound to pass separate order disposing of the second representation. The ratio of that decision squarely applies to this case. USHA AGARWAL v. U. 0. 1. [RAVEENDRAN, J. ] 359 22. In this case we find that the first representation dated 16. 1. 2006 was disposed of by the Advisory Board, Detaining Authority and Central Government on 27. 1. 2006, 10. 2. 2006 and 13. 2. 2006. The second representation dated 7. 2.

2006 given to the Central Government is nothing but a reiteration of the representation that was given to the Advisory Board on 16. 1. 2006 copies of which were given to detaining authority and Central Government. The representation dated 16. 1. 2006 had already been considered and rejected by the Central Government by order dated 13. 2. 2006. Therefore applying the principle in Abdul Razak Dawood Dhanani (supra), any delay in disposing of the subsequent representation dated 7. 2. 2006 or any delay in communicating the decision on such representation will not vitiate the order ofdetention. The third contention is also therefore rejected. 23. As a result, we dismiss the appeal as also the writ petition as having no merit. A. K. T. Appeal and W. P. dismissed.