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Judgment
G.F. Couto, J.—Petitioner is a citizen of India and is carrying on import business in the name and style of Messrs. Stamford Agency, at Bombay. By this Writ Petition he challenges his detention by an order dated 10th October 1988, issued by the Joint Secretary to the Government of India, u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, purportedly with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange. The said detention order was served, along with the grounds of detention, on the Petitioner-detenu on the 13th of the same month.
The facts which led to the issuance of the aforesaid order of detention are that, on information received by the concerned authorities that Messrs. Stamford Agency had imported some post parcels declared to contain Computer books, it was found on examination of some parcels by Customs that they contained only one book on Computer Science valued much less than the daclared value. On the basis of such information some searches were conducted at the business premises of Messrs. Stamford Agency which is a proprietory concern belonging to the detenu as well as in his residential premises. Some articles, documents and amounts of money were seized and on investigation, it was allegedly found that the detenu had commenced a business at Singapore under the name and style of Messrs. Supreme Technics Industries. It was further found that the said proprietory concern was transferred by the detenu to Miss Yasmin Mohamed Yunus Valibhoy, arid further that a company was floated by the detenu under the name and style of Messrs. Silk & Synthetics Pvt. Ltd., Singapore. 7000 Shares of the said Company of the face value of $ 1 were held by the detenu and 3000 by the aforesaid Miss. Yasmin Mohd. Yunus Valibhoy. This apparently was done without prior information of the Reserve Bank of India. The books which were imported by Messrs. Stamford Agency were from Messrs. Supreme Technics Industries. The investigation further disclosed that by this modus-operandi, an amount of about 9 crores of rupees had been credited in bank deposits in favour of Messrs. Supreme Technics Industries, and thereafter, transferred to Singapore.
The above facts had established, according to the detaining authorities, that the detenu in association with his son Bharat H. Thakkar and his daughter-in-law Roopal Arya had been indulging in receiving empty big cartons containing only one book and against the said postal wrapper (carton) in that the detenu had been making remittances to Singapore against the aforesaid postal wrappers by furnishing manipulated and false invoices for books which were never imported. These remittances were made through various banks in India, in violation of the provisions of the Foreign Regulation Act, 1973.
The Petitioner challenges the order of detention issued against him on several grounds. However, at the hearing, Mr. Jethmalani, learned Counsel appearing for the Petitioner, restricted his attack practically to two grounds. He first contended that some documents had been seized'' in the course of the searches conducted by the concerned authorities in the business premises as well as in the residence of the detenu. Initially, in the Panchanama of the seizure, it has not been stated that such documents were incriminating. However, in the grounds of detention, the detaining authority has stated that it has relied upon the incriminating documents seized in the business premises and in the residential quarters of the detenu. The detenu sought, through a letter written by his Advocate, Xerox copies of the said seized documents. But such copies were not supplied to him. In the result, even if such documents were not relied upon by the detaining authority, the fact remains that the detenu has been prejudiced in his right to represent against his detention. In that, there is a violation of Article 22 (3) of the Constitution. Reliance was placed in support of the above submission in Mohd. Hussain Vs. Secretary, Govt. of Maharashtra, Home Department, Mantralaya, Bombay and others, , and in Jaleel Khan v. Asstt. Secy. Home Dept. (Spl.) Govt. of Maharashtra 1988 CRi L. J. 1306 , and in Rajinder Nath and Others Vs. Commissioner of Income Tax , Delhi, . The learned Counsel next contended that although in the grounds of detention a mention is made to the circumstance that bail has been granted to the detenu but he could not avail it, the fact remains that no compelling reasons were given as to justify the need to issue the detention order.
Mr. Paranjape, learned Counsel appearing for Respondents Nos. 1 and 2, however, contended that as becomes apparent from the letter addressed on behalf of the detenu seeking copies of the documents, the detaining authority was not at all approached, and on the contrary, the request for Xerox copies of all the documents taken by the concerned authority was made to the Deputy Director of Enforcement, Bombay. Further, the same letter also shows that the reasons why the said copies were required had not been disclosed and it had not been stated that the said copies were needed for the purpose of making a representation against the detention. In the circumstances, according to the learned Counsel, the detenu cannot make a grievance from the circumstance that no copies of the documents seized from his business premises and from his residence had been supplied to him.
It becomes clear from the very stand and the submissions made by the learned Counsel appearing for the Respondents Nos. 1 and 2 that in fact and in truth copies of documents seized by the concerned authorities from the business and residential premises of the detenu had not been supplied to him though asked for by a letter dated 26th October 1988. In the said letter addressed by Mr. S. B. Keswani, Advocate, on behalf of the detenu it has been stated expressely that he was addressing the said letter on behalf of the detenu who at that relevant time was a COFEPOSA detenu at Arthur Road Central Prison, Bombay. It was further stated that the detenu wanted Xerox copies of all documents taken by the Department from his residential and office premises on 5th, 6th and 7th September 1988 and that he was ready and willing to pay the necessary charges for the same. It is true that the reasons why the said copies were required by the detenu had not been disclosed, but it was stated that the request was made under the instructions of detenu who was at that time detained under the COFEPOSA Act, at Arthur Road Central Prison, Bombay. It appears that the detaining authority did not understand the meaning of the said letter for in paragraph 12 of the Return, it is stated that the allegation made by the detenu in paragraph 4(ii)(m) of the Petition that "all the documents were not supplied even when he asked for vide his letter dated 26.10.1988 is wrong and hence denied. Since the orders of detention had been issued on 10.10.1988.1 say that the petitioner''s still insistence for the documents which have not been relied upon is mischievous and misleading the Hon''ble Court. This averment made in the Affidavit in Reply filed by Mr. U. K. Sen, Joint Secretary to the Government of India, makes no sense and as we said above, apparently indicates that he did not either understand what was alleged in paragraph 4 (ii) (m) of the Petition or he has not at all applied his mind to the case. In any event it corroborates that the copies of documents applied on behalt of the detenu had not been supplied to him.
As rightly pointed out by Mr. Jethmalani, the Panchanamas under which the said documents had been seized do not make any reference to the circumstance whether or not the seized documents are incriminating. None-the-less, in the grounds of detention, a reference has been made to incriminating documents which were seized from the residential and business premises of the detenu and that such incriminating documents have been relied upon by the detaining authority to pass the detention order. The detenu was therefore entitled to get copies or atleast inspection of the aforesaid documents in order to be able to make an effective representation against the detention order. The failure of the detaining authority to supply the copies applied for by the detenu is therefore fatal. We are supported in this view by the decisions of this Court in Mohd. Hussein v. Secy. Govt. of Maharashtra, and Jaleel Khan v. Asstt. Secy. Home Dept. (Spl.) Govt. of Maharashtra, (Supra), as well as by the Supreme Court in Smt. Pushpa v. Union of India and Ors.
Since, in our view, the failure of the detaining authority to supply copies of the aforesaid documents to the Petitioner vitiates fatally the detention order, we do not think it necessary to deal with the second submission of Mr. Jethmalani.
In the result, the Petition succeeds, and consequently, the rule is made absolute, in terms of prayer (a). The detenu to be released forthwith if not required in any other case.
Shri Vyas applied for stay of our judgment to enable the Respondents to move the Hon''ble Supreme Court. It is very clear from the return that the Detaining Authority is not at all serious about this detention matter. This conclusion is fortified from the reply given to the ground which has found favour with us and which shows total non-application of mind at least at the stage of filing the return. Further, the detenu was in custody at the time the detention order was made and had not availed of bail of Rs. 50,00000/- given to him.
In this view of the matter, we do not consider the oral application for stay as being made bonafide. The application, therefore, is rejected.