Bhagwan R. Sukhija vs K.L. Verma, Joint Secretary

Pendse, J.—The Joint Secretary to the Government of the India passed order dated December 15, 1987, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974 (hereinafter referred to as "the Act") directing detention of the petitioner with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. The order of detention was served on January 5, 1988 and the grounds of detention were furnished.

The grounds recite that on the information received that the detenu had purchased Saudi Riyal 5,500/- and United States dollars 500/- in blackmarket and the detenu was likely to proceed to Singapore surveillance was kept at the Airport and the detenu was searched on September 13, 1987, while leaving the country. The foreign currency was found on the person of the detenu and his statement was recorded u/s 39 of the Foreign Exchange Regulation Act. The detenu admitted that he had purchased the foreign currency from a taxi driver in Ghatkopar. The detenu also admitted that he was taking the foreign currency to Singapore for purchasing goods and to bring it back to the country for disposal. The detenu admitted that he had visited Singapore on eight occasions in year 1987 and every time he carried foreign currency. The grounds further recite that the scrutiny of the detenu''s passport revealed that the detenu had visited Singapore on eleven occasions in the year 1987. The grounds then set out the date of departure and the date of arrival on eleven occasions. On the these material, the Detaining Authority came to the conclusion that the detenu was acquiring foreign exchange in India unauthorisedly and subsequently taking it out of the country in violation of the provisions of the Foreign Exchange Regulation Act. The Detaining Authority was, therefore, satisfied that the detention of the petitioner is necessary with a view to preventing him from indulging in activities prejudicial to the augmentation of the country''s foreign exchanger resources. The order of the detention is under challenge.

Mr. Karmali, learned counsel appearing on behalf of the detenu, submitted that the order of the detention is required to be set aside as the detenu was deprived of an opportunity to make effective representation against the impugned order. The learned counsel submitted that the Detaining Authority culled out from the passport that the detenu had visited Singapore on eleven occasions in the year 1987 and the grounds furnished to the detenu set out the date of departure and the date of arrival on those occasions. Mr. Karmali urged that the xerox copy of the passport which was furnished to the detenu along with the grounds of detention is not legible and it is difficult to ascertain whether the claim of the Detaining Authority that the detenu visited Singapore on eleven occasions and the date of departure and the date of arrival are truly reflected in the passport. The petitioner has specifically claimed that several pages of the passport which reflect the dates of departure and arrival are blank and illegible. In answer to the petition, the Detaining Authority has filed return and it is claimed that legible copies of the passport were supplied to the detenu. To test the accuracy of the statement made in the return, we called upon Mr. Karmali to produce the xerox copy of the passport supplied to the detenu alongwith the grounds of detention. On perusal of the same, we have no hesitation in concluding that several entries are blank or illegible. It is, therefore, obvious that the detenu could not have made effective representation against the impugned order and thereby the right of the detenu guaranteed under Article 22 of the Constitution was deprived.

Mr. Desai, learned counsel appearing on behalf of the Detaining Authority very strenuously urged that what was supplied to the detenu was not an illegible copy. The learned counsel very fairly did not persist with the submission when the copy given to the detenu was shown to the counsel for perusal. Mr. Desai then submitted that even assuming that some of the pages and some of the entries are illegible or blank, that may not make any difference whatsoever and the contention that the detenu as deprived of an opportunity should not be accepted. In support of the submitted, reliance was placed on an unreported decision dated April 27, 1988, delivered by a Division Bench of this Court in Criminal Writ Petition No. 179 of 1988. In our judgment, the reliance on this decision is entirely inappropriate. The Division Bench did not lay down that the Detaining Authority is entirely can merrily supply illegible copies of vital and material documents and still that would not enable the detenu to complain that opportunity to make effective representation was denied. What had happened in the case before the Division Bench was that the detenu had gone abroad carrying foreign exchange on sixteen occasions. The detenu admitted in his statement that he did go on sixteen occasions and did not dispute the date of departure and the date of arrival ascertained by the Detaining Authority. In face of this admission, the Division Bench declined to accept the contention that the opportunity to make effective representation was denied because some pages and the entries in the passport''s copy which was supplied to the detenu were blank or illegible. The decision given in that case under peculiar facts has no application whatsoever to the fact of the present case. Here the detenu made a statement that he had visited Singapore on eight occasions while the Detaining Authority culled out from the perusal of the passport that visits were on eleven occasions and the Detaining Authority could also ascertain by perusal of the passport the date of departure and the date of arrival. It is, therefore, clear that while the detenu was claiming that he had visited on eight occasions the Detaining Authority concluded that the visits were on eleven occasions. It is, therefore, obvious that the detenu did not admit the visits on eleven occasions, and therefore was entitled to make representation against the conclusion made by the Detaining Authority. The detenu could not make effective representation because the copies supplied to him were illegible. In these circumstances, the reliance placed on the unreported decision of the Division Bench is totally inappropriate. In our judgment, the order of detention cannot be sustained and the petition must be allowed.

Accordingly, the rule is made absolute and the impugned order of the detention is quashed and set aside and the detenu is directed to be released forthwith. There will be no order as to costs.